In Downes v. Bidwell, the Supreme Court concluded that the Citizenship Clause does not apply to people born in unincorporated territories of the United States.

Instead, if they had no other claim to US citizenship, they were considered non-citizen nationals of the United States. However, Congress later extended citizenship to such individuals if born in Puerto Rico, the Virgin Islands, Guam, or the Northern Mariana Islands.

Currently, non-citizen nationality at birth is provided to people born in American Samoa or Swains Island by 8 USC §1408.

The Foreign Affairs Manual gives historical background on non-citizen nationality and contains the following curious note:

The United States exercises sovereignty over a few territories besides those mentioned above. Under international law and Supreme Court dicta, inhabitants of those territories, (Midway, Wake, Johnston, and other islands) would be considered non-citizen U.S. nationals. However, because the INA defines "outlying possessions of the United States" as only American Samoa and Swains Island, there is no current law relating to the nationality of the inhabitants of those territories or persons born there who have not acquired U.S. nationality by other means.

Did the Supreme Court state in dicta that individuals born in unincorporated territories of the United States are constitutionally guaranteed US nationality, or was the Court simply making a remark about what they thought was the intent of Congress regarding the nationality of hypothetical individuals born in unincorporated territories not otherwise provided for in the Immigration and Nationality Act?

  • Aside from American Samoa and Swains Island, it seems that these territories are either uninhabited or are inhabited by military or other federal government employees, of whom an overwhelming majority will be US citizens. So the INA probably omitted these territories because it was not seen as necessary to include them.
    – phoog
    Mar 26, 2019 at 3:28
  • @phoog I understand that, but I'd still like to know what exactly the Supreme Court has said about this topic
    – Brian
    Mar 26, 2019 at 15:13
  • Since the supreme court only hears "actual cases and controversies" it is very likely that they've said nothing about it at all.
    – phoog
    Mar 26, 2019 at 15:14
  • @phoog yet, there is that note in the Foreign Affairs Manual
    – Brian
    Mar 26, 2019 at 15:15
  • Ah, good point. I suppose that implies that some dicta exist where a justice has made some statement about a hypothetical birth in those territories or hypothetical permanent inhabitants (since there do not seem to be any inhabitants other than people posted there temporarily in the service of the US government). If that is true, we can answer the question in the last paragraph (about what specifically was said in dicta), but the question in the title ("do people...have...") is still open, since a statement in dicta does not constitute a ruling on a question.
    – phoog
    Mar 26, 2019 at 15:24

1 Answer 1


There is arguably a legal right to non-citizen nationality either by statute or under customary international law, but the U.S. Constitution does not afford such a right and Article I, Section 8 grants Congress broad authority over the governance of such territories and over immigration and naturalization (i.e. to define citizenship beyond the minimum established in the 14th Amendment).

  • Presumably the only circumstance in which someone could argue for that right would be a birth to a non-US-national member of the military or other federal employee who was posted to the territory. I doubt there are many.
    – phoog
    Mar 26, 2019 at 3:31
  • @phoog I suspect that there are a fair number of persons born in a U.S. territory whose nationality by paternity is unknown because the father is unknown and the mother's nationality cannot be discerned (e.g. when a baby is abandoned at a doorstep which actually happens surprisingly often).
    – ohwilleke
    Apr 10, 2019 at 17:29
  • 1
    My comment was in the context of unincorporated territories other than American Samoa and Swain's Island. Since the only inhabitants of those territories appear to be government employees or military personnel, it seems likely that the number of babies born in those territories is quite small (Wikipedia gives the combined population of the three named islands as 140-160 people, and I imagine pregnant women will be reassigned closer to a hospital). The proportion of those babies whose parentage is unknown is probably even smaller than the proportion whose parents are not US citizens.
    – phoog
    Apr 10, 2019 at 17:58
  • 1
    The term "actual case or controversy" comes to mind.
    – phoog
    Apr 10, 2019 at 18:00

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