In the latest installment of the game of chicken between the Department of Homeland Security and US states and territories over the REAL-ID Act of 2005, the DHS has announced that drivers licenses and IDS issued by American Samoa won’t be accepted at TSA checkpoints for “domestic” flights beginning next Monday, February 5, 2018 — unless the DHS, in its standardless discretion, backs down again as it has so many times before, and gives American Samoan travelers a last-minute reprieve.

Why American Samoa? And what will this actually mean?

We’ve often spoken loosely about the REAL-ID Act as applying to “states”, but like many Federal laws it also applies to six US “territories” (colonies):  the District of Columbia, Guam, the Northern Mariana Islands (Saipan, etc.), Puerto Rico, the US Virgin Islands, and American Samoa.

The laws govering these colonies and the rights of their residents make sense only in the context of the history of US racism and imperialism.

None of these US colonies have any voting representation in Congress. The 23rd Amendment to the US Constitution gave DC residents as many electoral votes for President and Vice-President as the smallest state, even though DC has a substantially larger population. But DC is still governed by a Congress in which it has no vote.

US citizens who reside in Guam, the Northern Mariana Islands, Puerto Rico, and the US Virgin Islands have no vote in any Federal election.  If a US citizen moves to a foreign country, they can still vote for US President and Vice-President by absentee ballot in the last state where they resided. But if a US citizen moves to Puerto Rico or any of these other territories, they lose their right to vote for US President and Vice-President (or any representative in Congress).

People who are born in Guam, the Northern Mariana Islands, Puerto Rico, and the US Virgin Islands are US citizens by birth. They are eligible to vote if they move to a US state.

People who are born in American Samoa are the only people born in any US territory who are not US citizens or entitled to US citizenship by birth (unless their parents are US citizens).  Even if they move to a US state, they have no vote in any Federal or state election unless they are naturalized as US citizens in the same manner as any other immigrants.

That anomaly and the denial of US citizenship to people born in American Samoa was most recently upheld in 2015 by the Court of Appeals for the DC Circuit, even while it acknowledged that, “American Samoa is classified as a ‘non-self-governing territory’ by the United Nations General Assembly,” i.e. a colony or occupied territory. The Supreme Court declined to review that decision.

(You might think that American Samoa would be part of the Ninth Circuit, the way that Puerto Rico is part of the First Circuit. But unlike each of the five other major US territories, American Samoa has no US District Court and is part of no Federal Circuit. A person accused of a Federal crime committed in American Samoa is rendered to some Federal District, typically Hawaii, 2500 miles away, where they are tried by a jury of Hawaiians rather than by a jury of their American Samoan peers.)

People born in American Samoa get passports that look like standard US passports, but that have a special endorsement on an inside page: “THE BEARER IS A UNITED STATES NATIONAL AND NOT A UNITED STATES CITIZEN”  (image, rules for passport issuance).  It’s to accommodate native-born American Samoans, who are US “nationals” but citizens by birth of no country, that the  first page of a standard US passport refers to “the citizen/national of the United States named herein” rather than simply to “the citizen”.

Native-born residents of the other major US territories are second-class citizens. Because they aren’t US citizens at all, native-born American Samoans have fewer legal rights than native-born residents of US states or any of the other major US colonies.

We all know what happens when rights aren’t coextensive with US territorial control: Guantanamo. There’s a strong argument that American Samoa is the next worst example of a territory under US governance but where local people lack the rights of US citizens.

The decision of the DHS, in its discretion, to pick on American Samoa as its first test of REAL-ID Act enforcement at airports has nothing to do with whether American Samoa is more or less “compliant” with DHS desires than other states or territories. At most 14 of the 50 states, and none of the 6 non-state territories subject to the REAL-ID Act, are actually compliant with the requirement to participate in a national ID database.

The DHS choice of American Samoa as the first target for REAL-ID Act enforcement  is driven by the fact that American Samoa is the only territory to which the REAL-ID Act applies where native-born residents are not US citizens, with the rights that citizenship entails.

Legal challenges to DHS or TSA harassment of American Samoan travelers will therefore face special hurdles.

US courts have held that the right of American Samoans to travel to, or reside in, US states or other US territories is only a stautory entitlement created by Congress, not a Constitutional right. As such, it could be revoked by Congress. As non-citizens and residents of a territory, not a state, American Samoans are not fully protected by the Constitutional provisions guaranteeing equal treatment of citizens and residents of the several states.

Denying American Samoans the right to free movement within US territory, including to and from Hawaii, other states, and other US territories, would appear to violate Article 12 of the International Covenant on Civil and Political Rights: “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. ” American Samoa isn’t a state, but unlike Guantanamo it is pretty unarguably within the “territory” of the US. US courts generally refuse to entertain claims of violations of the ICCPR, however. 

The DHS is also motivated by the fact that there are fewer “domestic” flights between other US territorities and American Samoa than any other state or territory. Currently, the only scheduled “domestic” passenger flights that serve American Samoa are two flights  a week in each direction on Hawaiian Airlines between Pago Pago (PPG) and Honolulu (HNL).

What will happen to  American Samoan passengers on  those flights?

The government of American Samoa has said in the past that it can’t afford to bear the cost of REAL-ID compliance. But it now says that it is trying to comply, and is asking the DHS for another extension of time to comply.

The DHS, in its standardless discretion, might issue another extension or “certify” American Samoa as compliant the way it has many other noncompliant states.

If the DHS doesn’t blink, American Samoans who show up for flights to and from Honolulu without passports or other Federal IDs next week will be treated the same way all other travelers who show up at airports without ID are treated.

Almost all of them will be allowed to fly, but only after being questioned, subjected to a more intrusive groping (“pat-down”) and search of carry-on belongings, and possibly asked to fill out an (illegal) TSA Form 415.

Keep in kind that because the TSA still hasn’t gotten Form 415 approved by the Office of Management and Budget, the Paperwork Reduction Act prohibits the imposition of any sanction — presumably including denial of access to common-carrier transport — for declining to complete the form. In 2016, the TSA said it was considering asking OMB to approve Form 415, a proposal to which we objected. The TSA never submitted Form 415 to OMB, much less got it approved.

Keep in mind also that the DHS has lied, over and over, about what the REAL-ID Act requires and whether travelers are required to show ID to fly, and related issues. You can’t trust the DHS to describe the law or its actions accurately.

All of this will cause delays, and check-in for the PPG-HNL flights may take several hours. But with only two flights a week, it probably won’t lead to riots in the airport or catastrophic backups. Just more delays and harassment to increase the rightful resentment of American Samoans at their treatment as less than American.

If you are traveling between Pago Pago and Honolulu, please let us know how it goes.