The Territorial Continuum: American Samoa, Criminal Adjudication, and Territorial Administration

Authors

• Emmanuel Hiram Arnaud, Boston University School of LawFollow

Abstract

The standard account of American territorial expansion posits that territorial acquisition moved along a spectrum of sovereignty. The federal government acquired new inhabited land through conquest or purchase, and the Constitution tasked Congress with organizing and administering the new territories until they were ready to become states. That pattern came to an abrupt halt in 1898 when, at the conclusion of the Spanish-American War, the Supreme Court, fearing the extension of citizenship to and the permanent integration of non-White populations into the American polity, suddenly pronounced that the Constitution authorized the holding of colonies. The Court thus sentenced new territories, and their residents, to languish in a territorial purgatory—some for over 120 years. As a consequence, Congress has, since 1898, abdicated its constitutional prerogative of preparing territories for statehood at different waypoints towards that traditional objective.

Using American Samoa as a case study, this Article introduces a novel and unexplored element of the expansionist narrative: that Congress has wielded its constitutional power to treat the territories differently than both states and from each other in ways that undermine our nation’s commitments to federalism, fundamental fairness, and equality. Through what I term “ the territorial continuum,” I show that much of the constitutional reality in American Samoa is the result of a federal government that, based on racial animus and self -interest, eschewed its constitutional responsibility of territorial governance.

Congress abandoned American Samoa soon after acquiring it through treaties beginning in 1901. Unlike in the case of every other territory, Congress did not pass an organic act—legislation creating a territory’s rules of governance —and instead left territorial administration in the hands of the Navy for 50 years. Also, unlike any other territory, Samoans are not U.S. citizens, but are instead “U.S. non -citizen nationals,” effectively neutering Samoan political participation in the federal forum. Again, unlike every other territory, Congress did not create a U.S. district court in American Samoa, resulting in federal agents transporting accused people to a district court thousands of miles away for the adjudication of federal criminal offenses.

Despite congressional inaction, Samoans have taken matters into their own hands. Soon after the President transferred oversight of the territory to the Department of the Interior in 1952, Samoans, without congressional authorization, created a constitution of their own and passed a civil and criminal code, all of which represent, to varying degrees, local cultural expressions. In doing so, Samoans rejected reliance on congressional authority, producing a level of local autonomy that other territories should envy. This reality is more easily understood when we view the territories on a gradient or, as I posit, on a territorial continuum where some territories have a closer relationship with the federal government than others. And through this conceptual framework, I interrogate the ways in which federal shortcomings both harm Samoan constitutional rights and also strengthen local autonomy through the lens of criminal law and procedure . The result is an uneasy tension between local culture, American governance, and constitutional interpretation that leaves the territory’s entire legal structure on precarious ground.

Disciplines

Comparative and Foreign Law | Constitutional Law | Fourteenth Amendment | Jurisdiction | Legal History | Legislation | Other Law

Recommended Citation

Emmanuel H. Arnaud, The Territorial Continuum: American Samoa, Criminal Adjudication, and Territorial Administration, 47 Cardozo L. Rev. 1225 (2026).
Available at: https://larc.cardozo.yu.edu/clr/vol47/iss4/17