Buy cheap gay porn.

1ASR2d

1ASR2d

Mageo v. Viena


Grant of portion of communal land for church purposes may not be enforced against a succeeding matai where the land no longer bears ties to a religious program. [1ASR2d84]

Before GARDNER, Chief Justice, presiding, KING*, Acting Associate Justice, WILKINS** ,Acting Associate Justice, FAOA, Associate Judge, and POUTOA, Associate Judge.

PER CURIAM.

Plaintiff/Appellant HTC Meauta O. Atufili Mageo is the senior Matai of the Mageo Family land known as "Vaitafi " or "Vailutu" in Pago Pago. Defendant/Appellee is the daughter of a former pastor, now deceased, who was permitted to reside on said land and conduct church services on an adjacent parcel.

In 1942, a church and a pastor's home were built on the Mageo Communal land. The pastor, defendant/Appellee's father (Ueligitone), used his own funds to build the home. Consent for the use of said land was granted by the Mageo Matai, a predecessor of Plaintiff/Appellant, and extended beyond use for church purposes to the children of the pastor. The wife of the pastor resided alone in the home after his death and the marriage of defendant/appellee. Following the death "of the pastor's wife, Defendant/Appellee permitted her husband's relatives from Western Samoa to reside in the home. Thereafter, the present Matai of the Mageo family brought an action to evict Defendant/Appellee and her agents from the home. The court below concluded that the Mageo Matai had granted the pastor and his family use of the land, in the form of an "extended license," so long as a member of the Pastor's family served the Matai and maintained a continual presence thereon. The court further concluded that Defendant/Appellee constructively met those requirements, and entered an order protecting her interests.

Plaintiff/Appellant Mageo challenges the factual findings of the trial court, and also alleges error as a matter of law, asserting that his predecessor was without authority to permit use of the Mageo family communal land for church purposes beyond the period of pastorage.

Although it is of considerable merit, See Talagu v. Te'o, 4 ASR 121 (1974), we need not consider plaintiff/appellant's assignment of error as to the factual findings regarding service and possession because the instant case may be resolved as a matter of law. The occupancy of communal land for church purposes is valid so long as the use of the land is consistent with that purpose. See, e.g., Leiato v. Satele, 2 ASR 341(1948); Tagoai v. Aaumu, 3 ASR 3 (1951). It is not disputed that use of the land presently in question was originally granted for church purposes and that it is no longer used there for. Any attempt by the former Mageo Matai to permit the pastor's children to use the land beyond the term of pastorage was in excess of his authority and cannot be enforced against the succeeding Matai. It is thus elementary that the grant cease and the land revert to the family for reassignment by the Matai.

Some question remains, however, as to whether and to what extent Defendant/Appellee should be compensated by plaintiff/appellant for the value of the dwelling constructed by her father. The question shall be considered by the court on remand. Any valuation of the dwelling should be reduced by the fair rental value of the property accruing subsequent to the first eviction notice. Defendant/Appellee shall vacate the disputed parcel within a reasonable time.

Reversed and remanded.

**********

*Honorable Samuel P. King, U.S. District Court Judge, District of Hawaii, sitting by designation of the Secretary of the Department of the Interior.

**Honorable Phillip C. Wilkins, U.S. District Court Judge, Northern District of California, sitting by designation of the Secretary of the Department of the Interior.

Olotoa v. National Pacific Ins. Co.,


OVERLAND OLOTOA, INC., OLOTOA OVERLAND
MANUMA, and LEAO'A V. MANUMA, Plaintiffs,

v.

NATIONAL PACIFIC INSURANCE COMPANY,
Defendant.

High Court of American Samoa
Trial Division

CA No. 61-81

August 15, 1983

__________

In appropriate circumstances. an insurer may be liable in tort for a negligent failure to act on an application for insurance.

MURPHY, Associate Justice.

The above entitled matter came on Wednesday, August 3, 1983 before the undersigned court. The parties stipulated that the trial be bifurcated and the issue of liability be determined first. The matter was fully submitted and taken under advisement on August 4, 1983. The court makes the following findings and conclusions:

FACTS

Defendant National Pacific Insurance Company (hereinafter N.P.I.) is an insurance corporation licensed to do business in the Territory of American Samoa. James McQuire has been its employee since 1977 and at all times herein relevant was its local manager. Plaintiffs own and operate various business enterprises in the Territory, including but not limited to a night club, called the Tepatasi. Adjacent to the night club was a 3 story building (hereinafter, the building) which on or about August 1, 1981 was completely destroyed by fire. That loss is the subject matter of this lawsuit.

***

The negligence theory proffered by Plaintiff has not been universally accepted by the courts. There appears to be an almost even division of authority. See Annot., 32 ALR 2d 487 (1953 and Supp. 1982). The emerging and better view, however,.allows recovery based on negligence in appropriate cases. Under the common law, tort recovery is predicated upon damages proximately caused by the breach of a legal duty. There is no rational reason why an insurer should be insulated from liability for an injury [1ASR2d112] resulting from its failure to exercise due care. We hold that an insurer maybe liable in American Samoa for a negligent delay in acting upon an application for insurance.

"The 'negligent delay' theory, generally stated, is that an insurance company is under a duty to act upon an application for insurance within a reasonable period of time, and a violation of this duty,with resultant damages, subjects the company to liability for negligence." Continental Life & Acc. Co. v. Songer, 603 P.2d 921, 929 (Ariz. App. 1979). The threshold issue thus confronting this Court is whether Defendant N.P.I. was negligent. We note, in passing, that many cases allowing recovery rely upon retention of a premium and a failure to indicate that no coverage exists. No premium was paid in this case and Plaintiff was aware that no coverage existed. However, these factors are not dispositive. An insurer may be otherwise negligent. E.g. Telford v. Binghan County F. M. Ins. Co., 16 P.2d 983 (Idaho19__).

Plaintiff's trial memorandum states that Coffey v. Polimeni, 188 F.2d 539 (9th Cir . 1951), is "remarkably similar" to the case at bar. The cornerstone of negligence in Coffey was that, for some time, the insurer (actually Coffey was an independent agent, not an insurer) had in its possession all the information it required to accept or reject the insurance application. As regards the case presently in issue, however, Defendant N.P.I. had at all times maintained that the desired insurance could not be negotiated until an appraisal was submitted. As such Alt v. American Income Life Insurance Co., 337 F.2d 472 (1964), is more persuasive.

In Alt, the decedent's application for life insurance was held in abeyance until such time as a medical evaluation was furnished the insurer. Because a medical examination was never obtained, the time for acting upon the application had not begun to toll. The application was not complete, and the "negligent delay" doctrine never became justiciable.

The facts here are similar to those in Alt. The evidence adduced at trial establishes that Plaintiff was aware the there was no coverage on the building and that an appraisal was required before a policy could be negotiated. Plaintiffs' assertion that the appraiser was an agent of Defendant N.P.I. was not supported by the evidence. It is clear that he was an independent contractor. Neither does the evidence establish that Defendant would not accept the appraisal of any other person. It establishes instead that N.P.I. would accept only the evaluation of a competent appraiser, of which there is only one in all of Samoa. That Plaintiff diligently attempted to obtain the information does not create an insurance contract. Life itself entails considerable risks and being insured against them is a matter of agreement rather than right. A policy was not issued. A premium was not paid. Plaintiff knew the building was not insured. Defendant did nothing to mislead Plaintiff and Plaintiff was not mislead. The fire was unfortunate, even tragic. But what could Defendant have done? Must an insurance company issue a policy of insurance whenever and in whatever amount a client demands?

We conclude that Defendant was not negligent in failing to insure Plaintiff's property.

**********

Poumele v. Ma'ae,


GALEA'I POUMELE, Appellant,

v.

TA'EI MA'AE, Appellee.

AP No. 04-77

High Court of American Samoa
Appellate Division

April 15, 1980

__________

Senior Matai may delegate specific task, including the bringing of a lawsuit, to a family member or members.

Delegation of matai functions is inconsistent with legislative intent, contrary to the weight of authority, and not in keeping with Samoan custom as guaranteed by treaty and the Revised Constitution (dissenting opinion).

Before, MURPHY, Associate Justice, presiding, SCHWARTZ*, Acting Associate Justice, SHRIVER**, Acting Associate Justice, POUATOA, Associate Judge, and ITUMALO, Associate Judge.

PER CURIAM.

This case came before us on appeal from the Land & Titles Division of this court. The original action was brought by Appellee on behalf of the Ma'ae family to register approximately 1.8 acres of land located in the village of Nu'uuli, Island of Tutuila, American Samoa, as the communal property of the Ma'ae family. At the end of trial, judgment was granted to Appellee. Appellant moved for a new trial and the Government of American Samoa (hereinafter referred to as Government) moved to intervene anq for relief from a void judgment. The trial court denied these motions and from that action the Government and Galea'i Poumele appeal. We affirm the Judgment of the trial court.

The issues presented before this court are:

1. Did the trial court err in finding that Appellant built his house above the mean high tide line?

2. Was there sufficient evidence to support the trial court's finding that Appellee owned the land of which Appellant has possession?

3. Did the trial court err in denying Appellant's motion to dismiss Appellee's complaint because the provisions of 27 ASC 1202(d) were not complied with?

An appellate court is generally limited to the correction of errors of law, and in the absence of constitutional or statutory provisions to the contrary, questions of fact are to be tried and determined in the court of original jurisdiction, and not in the appellate court exercising strictly the functions of a court of review.

* * *

Having reviewed the record before this court, we find that there is sufficient material evidence in the record for the trial court to find that the land on which Appellant built his new house and umu was dry land, and that the land of which Appellant was in possession is owned by Appellee.

Appellant also claims the provisions of 27 ASC 1202(d) were not met and for that reason Appellee does not have standing to bring this suit. 27 ASC [1ASC2d5] 1202(d) reads:

"(d) Any person who claims to be the owner of land which is not communal property may ask that the land be surveyed by a government surveyor, at the owner's expense, and the Governor may provide for such survey to be made by a government surveyor if private surveying services are not available. Only the senior matai of a Samoan family has the authority to request a survey of communal property of that family."

Appellant claims that the senior matai of the Ma'ae family, Malae Malelega, is not the Plaintiff in the lower court action, nor did he order the survey of the subject land. The trial court found "1. This action was brought by the plaintiffs on behalf of the Ma'ae family, including the senior matai, to register the land So'a as the communal property of the Ma'ae family." We find that there was sufficient evidence from which the trial court could have made the finding. Although Ma'ae Malelega, the senior matai of Appellee's family, did not bring this action himself, Appellant does not cite any authority, nor can the court find any authority which prohibits the senior matai from delegating certain specific tasks to members of his family, and we hold that the senior matai may so and in this case did so delegate. Such delegation having been made in this case, we find that the provisions of 27 ASC 1202(d) have been met.

Historically the senior matai has retained considerable control the administration of lands in his family's possession. This statute (27 ASC 1202(d)) recognizes the value of such centralized control and endeavors to protect the senior matai's authority by allowing a survey to be done only at his request. The purposes of the statute are also served if the senior matai is allowed to delegate expressly such authority to another family member, for ultimate control still remains in the senior matai. In this case, the evidence demonstrates such express authorization. The senior matai was present at trial and testified that the delegation of authority was by his agreement because he felt the delegate, his son Ta'ei, was more able to handle the rigors of trial.

Appellant Government raises four issues surrounding whether or not the land in question was submerged land. The Government contends, and correctly so, that if the land was submerged then the Government should have a claim to that portion of the land. Because of our conclusion that the trial court did not err in finding that the land was not submerged land, the Government's contention need not be addressed.

Having considered the briefs filed in this case, the record on appeal, the transcript of the trial court proceedings, and the argument of counsel, we find that the trial court did not err and its judgment should be and is affirmed.

MURPHY, Associate Justice, dissenting.

Throughout the history of its involvement in American Samoa, the United States Government has recognized the importance of Samoan customs and traditions. Among the foremost of these are the communal land system and the matai system. In support of this contention I refer to the Cession of Tutuila and Aunu'u, April 17, 1900:

"3. The chiefs of the towns will be entitled to retain their individual control of the separate towns, if that control is in accordance with the laws of the United States of America [1ASR2d7] concerning Tutuila, and if not obstructive to the peace of the people and the advancement of civilization of the people, subject also to the supervision and instruction of the said Government...."

Further support is found in the Samoan Bill of Rights:

Section 3. POLICY PROTECTIVE LEGISLATION:

It shall be the policy of the Government of American Samoa to protect persons of Samoan ancentry against alienation of their lands and the destruction of the Samoan way of life and language, contrary to their best interests. Such legislation as may be necessary may be enacted to protect the landsl customs, culture, and traditional Samoan family organization of persons of Samoan ancestry, and to encourage business enterprises by such persons..." Art. I, Sec. 3, Rev. Const. of Am. Samoa.

The statutes enacted by the Fono and relating to communal land show a basic assumption that the senior matai is the head of the family and should be the one to act as such:

"(a) It is prohibited for any matai of a Samoan family who is,
as such, in control of the communal family lands or any part thereof,
..."(emphasis added) 27 ASC 204.
"(a) The senior matai in charge of communal lands belonging to
his family, ...shall have the power and authority, as limited by this
chapter, to agree with any person that any structure now existing or
hereinafter erected on such lands shall not be or become a part of
the real estate, but shall remain separate and distinct therefrom...,"
(emphasis added) 27 ASC 402.

In Aumavae, et al. v. Moefaauo, et al., 1 ASR 38 (1902), this court held:

Whilst it is admitted that each member of the family has the right to state his opinion and make suggestions to the head of the family, he has not the power to arrogate to himself the right of appointment; that right alone is vested in the head of the family, who is the representative to vote and act for the family. Id. at 40-41.

Finally, I quote from Sagapolu v.Tanielu, 1 ASR 331 (H.C.T.D. 1922):

"What is a 'matai'? He is a man that is at the head of a family. He is the man that has the family affairs in charge. He is the man that all the members of the family look up to. He is the man they come to for advice. He is the man they come to for everything, practically." Id. at 338.

With all that in mind, the last sentence of 27 ASC 1202(d): "Only the senior matai of a Samoan family has the authority to request a survey of communal property of that family" is seen as but part of a pattern. Throughout the last 80 years, the senior matai has been the person on whom the family relies and has been the person who acts for the family. To permit others to act on his behalf seems inconsistent to me.

The majority holds the purposes of the statute are served if the senior matai is allowed to delegate expressly such authority, for ultimate control still remains in the senior matai. While this may be true, it is [1ASR2d8] inconsistent with another case decided this very term (1) in which we held the absence of statute, members of the legislature are pot permitted delegate their powers to sit on the Immigration Board of the Government American Samoa.

Furthermore, there are provisions for the removal of unsatisfactory matais. 1 ASC 801 provides for the removal of a matai for cause and 1 ASC 802 permits removal if the matai is absent from the Territory for more than one year. Of course, a matai may always resign his title voluntarily. With these three remedies available, it seems to me the family is protected against situations as here in which the senior matai of the family allegedly was too feeble to withstand the rigors of a law suit. Perhaps when a matai is in such a condition, rather than permit the delegation of his authority, the Fono prefers that the matai resign his title or that the title be removed involuntarily.

With the history of the matai system in mind, and to be consistent in our rulings, if it were up to me, I would reverse the trial court on the ground that 27 ASC 1202(d) has not been complied with. I firmly believe that absent compelling constitutional requirements, changes in the Samoan communal land system or matai system should come from the legislature and not the judiciary.

**********

*Honorable Edward J. Schwartz, Chief United States District Court Judge, Southern District of California, sitting by designation of the Secretary oft he Department of the Interior.

**Honorable Paul D. Shriver, United States District Court Judge, Retired, Territory of Guam, sitting by designation of the Secretary of the Department of the Interior.

1. Yamazaki v. Immigration Board of American Samoa, AP No. 014-79.

Pasene; Nouata v.


NOUATA OF NU'UULI, Appellant,

v.

PASENE OF NU'UULI, Appellee.

High Court of American Samoa
Appellate Division

AP No. 07-79

July 11, 1980

__________

In appropriate circumstances, court has jurisdiction to resolve a land dispute in a Matai title case.

Rule provision stating that collateral attack on judgement must be made within a reasonable time can rarely time-bar attack based on voidness, but a judgement which the court has power to make and which affords minimal due process is valid even if incorrect; the issue is essentially one of jurisdiction.

Before KENNEDY*, Acting Associate Justice, presiding, MURPHY, Associate Justice, TURRENTINE**, Acting Associate Justice, TA'IAU, Associate Judge, and ASUELU, Associate Judge.

KENNEDY, Acting Associate Justice.

This appeal from the Trial Division requires us to decide what relief, if any, is available to appellants, who seek to set aside a judgment that is now nearly fifty years old. We affirm the ruling of the Trial Division having concluded that the movants below (appellants here) advance no theory upon which the court may grant relief from the judgment they seek to attack in these proceedings. The factual and procedural history of this complicated case was well stated by Chief Justice Miyamoto in a very thorough opinion rendered in the Trial Division, and in part I of our[1ASR2d26] opinion we, borrow from that recitation. Our reasons for holding that the appellants are not entitled to relief differ somewhat from those adopted by the Trial Division, and we explain those conclusions further below.

FACTS AND PRIOR PROCEEDINGS

Chief Justice Miyamoto accurately described the history of this case as follows:

"On June 12, 1978, [movant] Tavete M.Puailoat senior matai of Puailoa family of Nu'uuli, Tutuila, American Samoa, filed a motion for new trial or, in the alternative to set aside the judgment in the case Nouata of Nu'uuli v. Pasene of Nu'uuli, LT No. 18-1930 (1931). Judgment had been announced June 9, 1931, following a trial on that date. [The movant is the successor in interest of plaintiff, one Nouata, and his motion for post-trial relief is based on] Article I, sections 2 and 3 of the Revised Constitution of American Samoa, I ASC 2, 5 ASC 412(b), 11 ASC 801(a), 11 ASC5122(1), Rule 60(b) of the Federal Rules of Civil Procedure and Rule 20, Rules of the High Court of American Samoa. The relief requested would not be extraordinary except that 47 years elapsed between the, filing of the judgment and the filing of the motion for new trial or other relief.

"The underlying dispute involves the ownership of approximately 360 acres of land known as Malaeimi in the village of Mapusaga, Tutuila, American Samoa. A portion of Malaeimi was under the control, or pule, of Puailoa Vaiuli, the predecessor in interest of the original and present plaintiffs in this action, at the time of his death in 1929. That Puailoa Vaiuli had an interest in at least part of Malaeimi was established in a series of proceedings including a hearing before the Land Commission in Apia, Western Samoa and several cases heard in the High Court of American Samoa. In Taisi v. Puailoa, 1 ASR 194, 195 (1909), we held that Puailoa's "claim of ownership to land Malaeimi arises from the undisputed overlordship of the name Puailoa over all Malaeimi not controlled by Fanene..."

"Puailoa Vaiuli leased part of Malaeimi to the Church of Jesus Christ of the Latter Day Saints in 1908 for a term of 40 years, and much of the controversy surrounds this lease. Puailoa Vaiuli died in 1929, during the term of the lease, leaving the Puailoa family without a senior matai, orchief. In Samoan custom, it is the matai who controls communal lands of the family.Aumavae v. Moefaauo, I ASR38T1902). Pasene, original respondent in this action, claimed thematai title Puailoa and registered the title with the Secretary of Native Affairs, as required by law. Nouata, original petitioner herein, filed his objection to [Pasene's] registration. The registration of a matai title and the filing of an objection thereto constituted the pleadings, and an action was brought upon this issue in the High Court of American Samoa in 1930.

"In the meantime, before the matai title case could be brought to trial, the Mormon Church, lessee of land Malaeimi, had asked the Secretary of Native Affairs for advice as to who was entitled to rent payments following the death of Puailoa Vaiuli. Apparently, both Salataima Puailoa, the widow of Vaiuli, and other members of Puailoa Vaiuli's family were claiming the right to the payments. The Secretary of Native Affairs advised that the payments be made to the Secretary until such time as the High Court could resolve the question.

"No pleadings concerning the issue of ownership of land Malaeimi or entitlement to payments from the lease of this land were filed, nor was Salataima Puailoa, one of the claimants of the land, joined in the action. Nouata v. Pasene was seemingly a dispute over succession to the matai title Puailoa. However, as Chief Justice Wood later wrote in a memorandum to[1ASR2d27] Governor G.S. Lincoln, although it was primarily a matai title case, "it seemed to the court for the best interest of all parties concerned that it be immediately ascertained to whom the rents derived from...Malaeimi should be paid." Plaintiff's Exhibit 19. In the same memorandum, Chief Justice Wood informed the Governor that there had been no pleading directed to the issue of ownership of land Malaeimi. Nonetheless, Judge Wood advanced the case on the calendar ahead of 25 other cases in order to resolve the dispute over lease payments, of which he presumably had been informed by the Secretary of Native Affairs.

"After trial on June 9, 1931, the court ruled from the bench that the title Puailoa be awarded to plaintiff Nouata. In addition, the court held as follows, thereby engendering the present dispute.

As to the land Malaeimi, it is also the unanimous decision of the court that that part of Malaeimi that is leased to the Mormon Missionaries is the property of the widow of Puailoa and that she should have, during her life time, the rents.

As to the other lands of Puailoa the court decides that they should be held by Puailoa as the matai of the Puailoa family for the benefit of the whole family.Nouata of Nu'uuli v. Pasene of Nu'uuli, LT No. 18-1930 (1931).

"Following the announcement of judgment, according to the allegation of the present plaintiff, Nouata waited some weeks and then made oral protest to Chief Justice Wood, the presiding justice. Purportedly, "the delay was undertaken so as not to offend the court in the custom of fa'a Samoa [the Samoan way]." Memorandum by Puailoa in Response to Objections against his Motion to Reopen [hereinafter Plaintiff's Reply Brief] at 3; Plaintiff's Exhibit 6. Plaintiff later petitioned the governor of American Samoa to reconsider the court's decision, and apparently sent a letter of protest to a Senator Bingham (not further identified), although no copy of the letter to Senator Bingham is in the record. Nouata sent a second petition to the Governor along with a copy of his letter to the Senator. Plaintiff's Exhibit 6,7,8, and 15.

"The petition to the governor charged that Chief Justice Wood was improperly influenced by Soliai, counsel for plaintiff Nouata, and that Soliai was working in cahoots with Salataima against his own client's interests. Soliai allegedly undermined Nouata's case as to ownership of the land Malaeimi by arranging to call only one witness on Nouata's behalf, the widow Salataima Puailoa, who supported Nouata's claim to the Puailoa title but advanced her own claim to Malaeimi at the same time. According to Nouata's letter to Governor Lincoln, Nouata's family had expressed a preference for the appointment of one Tago S. as their attorney, but Judge Wood instead appointed Soliai and also because the court interpreter's wife was related to Soliai. Furthermore, it is charged, Soliai had received valuable gifts from Salataima.

"Besides protesting this supposed web of relationships which led to possible inadequate representation for Nouata and improper influence of the court, plaintiff's petition to Governor Lincoln complained that the court had decided in favor of the widow Salataima even though "we did not. have a case between Puailoa's family and Salataima." Plaintiff's Exhibit 6,4. In other words, Nouata claimed that the issue of ownership of land was not properly before the court, as it was not raised by the pleadings and the necessary parties were not joined. "These petitions were fruitless. The governor denied the first and [1ASR2d28] ignored the second. Plaintiff's Exhibit 10. But no motion for new trial or for any other post-judgment relief was made to the High Court. Rather, plaintiff Nouata limited his post-trial actions to oral protest to Chief Justice Wood, if plaintiff's allegation is credited, and to letters of protest to the governor and Senator Binham. It should be noted that the Governor pf American Samoa at that time had the right to sit as President of the High Court. Also, there was no procedure established by statute or rule for appealing decisions of the High Court. In a memorandum to Governor Lincoln dated October 24, 1931(the same day that Governor Lincoln denied the petition), Chief Justice Wood explained the procedure for the governor to follow "in the event that it should be thought expedient by you to recommend a rehearing of this case by resubmitting to the court the question of the ownership of the land involved."Plaintiff's Exhibit 12, 2. Apparently, Chief Justice Wood contemplated that itwas within the power of the governor to "recommend " a rehearing.

"Some months after the decision in this case was handed down, the Mormons sought to renew their lease to Malaeimi, although it still had 14 years to run, but the governor refused to approve the renewal (such approval being required under Samoan law) as exceeding the 25 year maximum lease duration permitted underterritorial law. Plaintiff's Exhibits 21-24.

"On September 13, 1932, in the case of Tu'utau of Nu'uuli v. Fanene of Nu'uuli, LT No.1-1931 (1932), JudgeWood affirmed that Salataima Puailoa was entitled to the rental of that portion of the land Malaeimi which was leased to the Mormons, while Puailoa Nouata had thepule of the remainder of Malaeimi. Moreover, he found that Malaeimiis divided by the main road to the village of Leone, and that section of the land to the right (presumably inland) of the road is the Puailoa land, while the section to the left of the road belongs to the holder of the matai title Fanene.

"In 1944, the Mormons renewed their lease to Malaeimi for a second 40year term at an annual rental of $360 (1 per acre), and this lease was approved by the governor. Plaintiff's Exhibit 27. The following year, the Mormons sublet 100 acres of the 360 to the American Samoa Government for a term of 40 years at an annual rental of $100. Both this lease and the renewal lease to the Mormons were executed by Salataima Puailoa. Plaintiff's Exhibits28-31.

"Then in 1953, following an amendment to Section 1223 of the American Samoa Code of 1949 making possible the alienation of land other than communal land to non-Samoans, Salataima sold 300 acres of the 360 covered by the lease to the Mormon Church for $30,000. The warranty deed was recorded in the office of the Registrar of Titles, although it does not appear to bear the stamp of approval of the governor. Plaintiff's exhibit 32-34. The remaining 60 acres remained under Salataima's ownership and, after her death, devolved to her brother, Lagafuaina Laisene, now deceased, whose estate is presently in probate. Plaintiff Exhibit 35.

"Finally, in 1974 the Mormons leased two parcels totalling 38.2 acres of the land Malaeimi to the American Samoa for 75years at an annual rental of $1,000. This land is currently occupied by the American Samoa Government Community College. All the personal property and chattels on these parcels were conveyed to the American Samoa Government for $1,500. Plaintiff's Exhibit 36. The present replacement value of the structures thereon (old and new) was estimated by a witness to be on the order of 4 million dollars. "Tavete M. Puailoa, plaintiff herein and senior matai of the Puailoa family, filed a petition with the Secretary of the Interior on March 10, 1978, allegedly asking for the return of Malaeimi to the Puailoa family. No copy of this petition appears in the record. The Secretary suggested that [1ASR2d29] Puailoa apply to the High Court for relief. Affidavit of Tavete M. Puailoa. Then on June 12, 1978, plaintiff filed his motion for new trial or to set aside the judgment in this case."

POSSIBLE GROUNDS FOR POST JUDGEMENT RELIEF

Title II, section 801 of the American Samoa Code provides that civil practice in the High Court shall conform as closely as practicable to the Federal Rules of Civil Procedure. Federal Rule of Civil Procedure 60(b) provides a number of grounds for setting aside a judgment. In the Trial Division the appellant sought to set aside the 1931 judgment on the three separate grounds set forth in rule 60(b) (4), (5), and (6), and on various other theories as well. The most significant claim made, both in the Trial Division. and on appeal, is based on rule 60(b)(4), allowing void judgments to be set aside. We address that issue at the outset.

A. Rule 60(b)(4) Void Judgments

Appellants' theory is that since Salataima was not a party and the land question was not before the court in 1931 the court's decision in that litigation, to the extent it bears on Salataima's title to the disputed land, was void. We affirm the denial of relief under rule 60(b), but our analysis of the principles which control the case differs from that adopted by the Trial Division. The Trial Division reasoned that. regardless of the merits of the appellants' argument that the 1931 judgment was void, 47 years was simply too long for them to wait before making a motion to set it aside. The issue of the judgment's validity was not reached. The Trial Division's position was elaborated persuasively, but we conclude that the question of validity must be resolved. We hold that the 1931 judgment is valid, and our determination of validity requires affirmance of the Trial Division.

It is true that rule 60(b) requires that motions to set aside a judgment as void must be "made within a reasonable time," but we are reluctant to base our holding on that ground. To do so w ould be contrary to precedent and to fundamental rules controlling the enforcement of prior judgments. Although we have found one dictum to the effect that the "reasonable time" referred to in rule 60 is a limited time when the basis of attack is voidness, see Vecchione v. Wohlgemuth, 558 F.2d 150, 159 & n.7 (3d. Cir.), cert. denied, 434 U.S. 943 (1977), nearly all discussion of the permissible time period for a 60(b)(4) attack is to the contrary. There are authorities to the effect that a void judgment may be attacked and set aside under rule 60 at any time whatever. For example, the following very strong language is found in an authoritative treatise on the Federal Rules of Civil Procedure.

A void judgment is something very different than a valid judgment.
The void judgment creates no binding obligation upon the parties,
or their privies; it is legally ineffective. And while, if it is a judgment
rendered by a federal district court, the court which rendered it may
set it aside under Rule 59, within the short time period therein provided,
or the judgment may be reversed or set aside upon an appeal taken
within due time where the record is adequate to show voidness, the
judgment may also be set aside under 60 (b)(4) within a "reasonable
time", which, as here applied, means generally no time limit, the
enforcement of the judgment may be enjoined; or the judgment may
be collaterally attacked at any time in any proceeding, state or federal,
in which the effect of the judgment comes in issue, which means
[1ASR2d30]
that if the judgment is void it should be treated as legally
ineffective in the subsequent proceeding. Even the party which obtained
the void judgment may collaterally attack it. And the substance of these
principles are equally applicable to a void state judgment.
A party attacking a judgment as void need show no meritorious claim
or defense or other equities on his behalf; he is entitled to have the
judgment treated for what it is, a legal nullity, if he establishes that the
judgment is void. 7 J. Moore, Moore's Federal Practice section 60.25(2)
(1979) (footnotes omitted).
Unlike clauses (1)-(3), a motion under clause (4) is not subject
to a maximum time limitation of one year, but like a motion under clauses
(5) and (6), the Rule provides that the 60(b)(4)motion must be made
within a "reasonable time." What is the meaning of this"reasonable time"
limitation with respect to a motion for relief from a void judgment?
The theory underlying the concept of a void judgment is that it is
legally ineffective - a legal nullity, and may be vacated by the court which
rendered it at any time. Laches of a party can not cure a judgment that
is so defective as to be void; laches cannot infuse the judgment with life.
Further, it may, when appropriately called in question, be adjudged
void in any collateral proceeding, and this collateral attack may be made
at any time. Since a federal judgment that is void can be so collaterally
attacked, and since the judgment sustaining the collateral attack would
have to be given effect in a subsequent 60(b)(4) motion to set the federal
judgment aside as void, the "reasonable time" limitation must generally
mean no time limit, although there may be exceptionally situations where
the reasonable time limitation would require diligence on the part of the
movant. Id. at section 60.25(4) (footnotes omitted).

Although motions to set aside a judgment based on voidness are usually made within several months of the judgment's being entered, we have found cases in which the period of time is much longer, in one case as long as thirty years. See Crosby v. Bradstreet, 312 F.2d 483 (2d Cir.) , cert. denied, 373 U.S. 911 (1963) (30 years); United States v. Williams, 109 F. Supp. 456 (W.D. Ark. 1952) ( 3 years); State v. Romero, 76 N.M. 449, 415P.2d 837 (1966) (8 years, state version of rule 60(b)(4)). Although the equitable considerations that argued against setting aside the judgment were far weaker in these cases than in the case before us, we think an inquiry into the substance of the claim that the judgment is void is the required approach. We find no case in which relief under rule 60 (b) (4) was denied either in spite of a holding that the earlier judgment was void, or without the necessity of first resolving the voidness issue, although Professor Moore has suggested that such a holding might be correct in some cases. See 7 J. Moore, Moore's Federal Practice, section 60.25(4) & n. 9 (1979).

For the remainder of our discussion, it must be kept in mind that the distinction between a valid judgment and a void judgment has nothing whatever to do with whether the judgment was a correct or desirable result. A judgment which a court has the power to make, and one which rendered in accordance with minimal standards of due process, is a valid judgment, even if it is incorrect. [1ASR2d31]

It is only in the most extraordinary situations that a court of general jurisdiction will be held to have rendered a void judgment. Default judgments are generally the' only cases in which even a plausible argument can be made that the judgment is void. A judgment may be void if the rendering court has clearly usurped power in the litigation, or if there is no jurisdiction over the party against whom the judgment is rendered, or if there is no notice to that party or opportunity to appear and be heard in the suit. A mere procedural irregularity that falls short of either a usurpation of power or a clear denial of an opportunity for a party to defend the interests at stake falls far short of rendering a judgment void. See generally J. Moore, supra at section 60.25(2). The requirements of a valid judgement have been stated concisely as follows:

Section 4. Requisites of a Valid Judgement.
A court has authority to render judgment in an action when
the court has jurisdiction of the subject matter of the action, as stated
in section 14, and (1) The party against whom judgment is to be
rendered has submitted to the jurisdiction of the court, or (2)
Adequate notice has been afforded the party, as stated in section 5,
and the court has territorial jurisdiction of the action, as stated in
section 7 to 12. Restatement (Second) of Judgments section 4
(Tent. Draft 1978).

In this case it is clear that the predecessor in interest of the party making this motion submitted himself to the jurisdiction of the trial court in the 1931 litigation and therefore had sufficient notice of the pendency of the suit. The only way, then, that the irregularity allegedly committed by the 1931 court in making a determination concerning the status of the land can be grounds for finding the judgment void is if the determination was so remote from the subject matter of the litigation that the court could not adjudicate the two matters simultaneously. This would follow if either the original plaintiff had no reason to suspect that the status of the land was or would be involved in the court's decision, or the relation between the matai title dispute and the status of the land was so tenuous as to make their joint determination totally irrational. The following two rules provide some guidance in determining this question:

Section 12. Jurisdiction Over Litigants Concerning Other Claims.
A court may exercise jurisdiction over a person who is a party
to a pending action in that or another court of the state in which the
court is located when the claim involved arose out of the transaction
that is the subject of the pending action or is one that may in fairness
be determined concurrently with that action.
Section 61. Dimensions of "Claim" for Purposes of Merger or Bar
- General Rule Concerning "Splitting."
(1) When a valid and final judgment rendered in an action
extinguishes the plaintiff's claim pursuant to the rules of merger of
bar (see sections 47 and 48), the claim extinguished includes all rights
of the plaintiff to remedies against the defendant with respect to all of
any part of the transaction, or series of connected transactions, out
of which the action arose. [1ASR2d32]
(2) What factual grouping constitutes a "transaction," and what
groupings constitute a "series," are to be determined pragmatically,
giving weight to such considerations as whether the facts are related
in time, space, origin, or motivation, whether they form a convenient
trial unit, and whether their treatment as a unit conforms to the parties'
expectations or business understanding or usage. Id. at sections 12, 61.

Cf. McAdama v. Fireman's Fund. Ins. Co., 203 Kan 123, 452 P.2d 851, 855 (1969) ("Court has jurisdiction to decide only such issues as are raised hy the pleadings or defined in the pretrial order, with the limited exception of new issues raised by evidence to which there is no objection." (emphasis in original)(citation omitted).

The record indicates the parties tried the action on the theory the
district court was sitting both as a court of law and as a court of equity
and on the theory the case should settle all issues between the parties
so as to avoid further litigation. At issue was the exact nature of the
involvement of Cunningham in the transaction complained of by the
plaintiff, which included real estate transactions and mortages [sic],
and whether those transactions and mortages [sic] were legal or void...
No objections were made to .a great deal of the evidence introduced
during the course of of [sic] the trial which tended to establish fraudulent
conduct on the part of Cunningham. Since such evidence was admitted
without objection , and since Cunhingham had the opportunity to answer
and cross-examine the witnesses, no error can be predicated thereon. Id.

We follow these authorities and hold that the court in the 1931 matai title case had authority to render its determination regarding the payment of rentals. The two subjects were related with respect to the parties involved, the facts bearing upon the cases, and the relief sought from the court. We believe that this rule is particularly appropriate as applied to a dispute in Samoa in 1931, where technicalities of pleading, should not be strictly applied. To apply rules 12 and 61 of the Second Restatement we must turn to the background of the 1931 lawsuit and the transcript of the proceedings therein. We note two points parenthetically: First, it is clear that the court in the 1931 case had the power, which it frequently exercised, to determine the status of land, and second, what ever irregularity was present in the court's joint determination of the two issues might more plausibly be a ground for a voidness attack if the decision had gone the other way, and if the party attacking the judgment as void (Salataima) had not been a party in the 1931 decision.

It should be noted that in the heated atmosphere preceding the 1931 decision it was apparently understood by all parties that the status of the land Malaeimi, whether personally belonging to Salataima or whether communal, was in dispute as well as who could lawfully claim the matai title Puailoa. Concerning the instant motion, Chief Justice Miyamoto's opinion for the Trial Division, persuasively we think, suggests that it was also understood by all people involved that the High Court was likely to resolve the two disputes simultaneously. Examination of the transcript of the [1ASR2d33] trial, as well as the 1931 decision itself, reveals that the two matters were inextricably interwined, and this fact, as well as the aforementioned public controversy preceding the trial, makes it clear that the plaintiff in the 1931 decision, who was apparently the party adversely affected by any determination of the status of the land Malaeimi, was reasonably and actually notified that the two matters would be jointly resolved.

One of the critical factors in Judge Wood's 1931 decision that Nouata was entitled to thematai title Puailoa was his predecessor's --Vaiuli-- relationship in the with the very piece of land in question. It was, apparently, important that Vaiuli played a decisive role in defending the land from the claims of an American corporation in an earlier lawsuit in 1909. Because Vaiuli had rendered this service to the family in defending the land from these claims, the court was inclined to respect Vaiuli's choice of a successor, namely, Nouata.

The following account, then, is a simplified version of one aspect of the 1931 litigation that illustrates the interrelationship between the matai title issue and the question of the status of the land Malaeimi. There were in 1931 two candidates for matai title: Nouata, the candidate preferred by the deceased matai Vaiuli, and Pasene, a candidate preferred by another important figure, named Fanene. There was a clear dispute as to whether, the Fanene faction or the Vaiuli faction was primarily responsible for the earlier decision protecting the land Malaeimi from the American corporation. The amount of discussion at the trial about this earlier controversy implies that the question of which faction had historically taken a more active role in protecting the family's interests bore upon the question of which faction ought properly to nominate the successor to the matai title. Thus, it was quite important for Judge Wood to determine precisely what Salataima's husband's historical connection with the disputed land was. Given this interrelation between the disputes, it was reasonable for Judge Wood to credit Salataima's testimony that because of her deceased husband's active protection of the disputed land, she was entitled to the rents personally.

We conclude that Judge Wood's decision to determine both issues in the case was well within the court's jurisdiction over the subject of the case before it. As a logical matter, selection of the best candidate for the matai title was at least in some respects contingent upon resolving a long-standing and complex controversy about the relationship of various people to the disputed land. The public uncertainty about who ought to receive the rents for the use of the land, as well as the focus, during the course of the trial, on the status of the land, suggest that it was generally expected by all concerned with the litigation that the two questions were and ought to be determined jointly. Determination of land disputes was within the competence of the court in 1931, because the party against whom the rental question was apparently decided had submitted himself to the jurisdiction 'of the court and either expected the question to be decided in the lawsuit or at least did not object to the subsequent emergence during the trial of the current status of the land as a major issue, and finally, the land or rental claim is one that could "in fairness" be decided in conjunction with the matai title claim. We hold, accordingly, that Judge Wood's 1931 decision, to the extent it bears upon the status of the land Malaeimi, was not void.

B. Other Provisions of Rule 60(b)

Appellants also seek to set aside the judgment under rule 60(b) (5) or 60(b)(6), but we reject these arguments. Subsection (b)(5) applies only in situations where a temporary factual underpinning of an order has ceased to exist, as when an order to pay damages is no longer appropriate because the [1ASR2d34] claim has been satisfied in some way different from that contemplated by the order, or there is an implicit limitation to the time during which a prospective judgment is to be given effect. See, e.g., Jackson v. Jackson, 276 F.2d 501(DC Cir.),cert. denied, 364 U.S. 849 (1960); Loney v. Scurr, 474 F. Supp. 1186 (S.D. Iowa 1979); John W. Johnson, Inc., v. J.A. Jones Constr., Co., 369 F. Supp. 484, 498 (E.D.Va. 1973). Neither condition applies in this case.

Subsection (b)(6) appears on its face to be the broadest basis for relief, requiring simply "any other reason justifying relief from the operation of the judgment." It has been construed not to apply to situations covered by other subsections of rule 60(b), Williams Skillings & Assocs. V. Cunard Trans, Ltd., 594 F.2d 1078 (5th Cir.1979) ; United States v. Cirami, 563 F.2d 26 (2d Cir. 1977), nor to a full and conscious choice regarding conduct of the litigation. Id.; Bell Tel. Laboratories, Inc., v. Hughes Aircraft Co., 73 FRD 16 (D. Del. 1976). Appellants' assertion that their 47 year delay was to conform to Fa'a Samoa and avoid offense is an~xample of the latter situation. Subsection 60(b)(6) is to be used only in the most extraordinary circumstances, such as when a party is prevented by physical duress from protecting his interests in court. The trial court's comparison of the two cases of Klaprott v. United States, 335 U.S. 601(1949), andAckermann v. United States, 340 U.S. 193 (1950), to this case correctly demonstrates why (b)(6) is not available.

A further reason why the Trial Division was correct in refusing to apply rule 60(b)(5) or (6) is that under these subsections, unlike 60(b)(4), the reasonable time period is not open-ended. The 47-year delay on the facts of this case was conclusively unreasonable with respect to these two subsections.

The various allegations of fraud, mistake, etc., do not suffice to invoke subsections (b)(l), (2), or(3) of the rule because these require that a motion be made within one year.

C. Other Grounds for Relief

Various other grounds for relief, some discussed at more length by the t:rial court, may be briefly disposed of here. Appellants in several ways advance the argument that the 1931 decision permitted an illegal alienation of communal land, thus frustrating congressional policy or the fifth amendment by depriving the family of property without due process. As successors in interest to parties bound by the 1931 judgment, appellants cannot, now attack it on these grounds. The argument, in addition, is somewhat circular, inasmuch as it relies on a premise that Malaeimi was Communal land before the 1931 decision. As the appellants themselves interpret the decision, the court held that it was not then communal land and had not been for some time. Whether or not the court was authorized to conclude this, as to these parties, is a question we have already discussed.

The same element of circularity undercuts analogies to cases cited by appellants, such asOneida Indian Nation v. County of Oneida, 434F. Supp. 527 (N.D. NY 1977), arising under the Indian Non-Intercourse Act of1970. The act restricts alienation of tribal lands. Putting aside the very doubtful proposition that the Samoans were intended to be covered by that Act, given its historical and administrative context, it remains that the land must first be shown to be tribal or communal before the principle of attacking land transfers after a long lapse of time can be brought into play.

The appellants' arguments based on alleged historical or contemporary injustices are not completely clear. They argue, for example, that the 1900 [1ASR2d35] Instrument of Cession is invalid as to them and does not alter their immunity, from the sovereignty of the American Government. Yet, in the same paragraph they argue that a nonalienation policy of the Instrument of Cession should be applied against the appellees because it is the supreme law of American Samoa. Without in any way passing on the merits of these arguments, we note that they are more appropriately made in a legislative, rather than a judicial, forum.

We therefore conclude that no basis for relief from the 1931 judgment has been presented to us, and the order below is affirmed. We intimate no views as to the interpretation of the 1931 decision or its bearing on the ultimate question of title, only that it is valid as to these parties. It is important for appellants to realize that even if grounds existed for granting their motion, this would by no means insure the ultimate result that they argue is just. The immediate cost of granting their motion would be that a judgment nearly one-half century old would be set aside. The status of Malaeimi would be in more doubt than before, and any further judicial attempt to solve it would be 'hampered, if not totally frustrated, by the intervening oblivion of first-hand accounts of the events bearing on different claims to the land. These considerations support our holding, since it is not only legally correct, but also desirable as a practical matter and for society that "[t]here must be an end to litigation someday " Ackerman v. United States, 340 U.S. 193, 198 (1950).

The order of the Trial Division is AFFIRMED.

____________________

*Honorable Anthony M. Kennedy, United States Circuit Judge, Ninth Circuit, sitting by designation of the Secretary of the Department of the Interior.

**Honorable Howard B. Turrentine, United States District Court Judge, Southern District of California, sitting by designation of the Secretary of the Department of the Interior.

Tupuola v. Tu'ufuli,


TALAMOA TUPUOLA, Appellant,

v.

High Chief MOALI'ITELE TU'UFULI, Appellee.

High Court of American Samoa
Appellate Division

AP No. 06-82

March 29, 1983

__________

Continuous use and possession is better evidence of title than history and tradition.

Matter will be decided against party to an appellate proceeding who without good cause fails to file a brief within the time prescribed by rule. family.

Before GARDNER, Chief Justice, presiding, KING, Acting Associate Justice, WILKINS,Acting Associate Justice, FAOA, Associate Judge, and TAIMANU, Associate Judge. [1ASR2d81]

PER CURIAM.

Talamoa Tupuola appeals from a judgment permanently enjoining him from entering onto land claimed by plaintiff/appellee Moali'itele Tu'ufuli but cleared and used by defendant/appellant.

Appellee, without good cause, failed to file his brief within the prescribed time of 30 days (the brief was four months late). The court has ruled that his brief not be filed. Under these conditions we approach this matter as a default. Thus, we are under no duty to look up the law for appellee nor make any search of the evidence in an effort to uphold the judgment.

We therefore accept as true the statement of facts in appellant's opening brief and assume that the points made by appellant are meritorious (Roth v. Keene 64 Cal. Re. 399; Mann v. Andrus 169 C(2) 455, 337 P(2) 673, 97 C(2) 493, 217 P(2) 10l9).

Actually, had the matter been heard on the merits the result would have been the same. Appellant presented direct. evidence of original clearing and cultivation of the land from World War II to the present. Appellee offered only family history and tradition that his family had always owned the land. While family history and tradition is admissible to prove title it hardly, without more, affords substantial evidence in the face of direct evidence to the contrary. on retrial, appellee must offer something more substantial than history and tradition.

Judgment reversed.

**********

*Honorable Samuel P. King, United States District Court Judge, District of Hawaii, sitting by designation of the Secretary of the Department of the Interior.

**Honorable Phillip C. Wilkins, United States District Court Judge, Northern District of California, sitting by designation of the Secretary of the Department of the Interior.

Tavete; Reid v.


EUGENE E.F.W. REID, et. al., Appellants,

v.

PUAILOA TAVETI, et. al , Appellees.

High Court of American Samoa
Appellate Division

AP No. 14-82
AP No. 15-82
AP No. 16-82

March 30, 1983

__________

Culture protective treaty provisions establish persuasive presumption that all land in Samoa is communal land and party claiming otherwise has burden of proving lawful alienation. Transfer of land for church purposes permits church to retain only so much land as is actually needed for religious programing; use of other land is by the grace of the matai.

Court has no jurisdiction to alter rights and obligations with respect to persons not parties and properties not pleaded.

Before MURPHY, Associate Justice, presiding, KING*, Acting Associate Justice, WILKINS**, Acting Associate Justice, FAOA, Associate Judge, and TAUPULE, Associate Judge.

PER CURIAM.

STATEMENT OF THE CASE

Plaintiff-Appellant Reid commenced two separate actions in the Trial division of the High Court of American Samoa on behalf of the Church of Jesus Christ of Latter Day Saints (the Mormons) to evict and enjoin 1wo separate families from land known as "Malaeimi." (LT No.007--79 and LT No. 41-79). The cases, having common issues of fact and law, were eventually consolidated for trial. Each family filed responsive pleadings. Though inartfully pleaded, the defendant families below asserted a claim of communal ownership and superior right to possession of the lands upon which the plaintiff church claimed they had trespassed. The trial court apparently construed their assertions as affirmative defenses or counterclaims and thereupon determined the rights of the parties to the slightly more than 313 acres in dispute, and another 60 acre contiguous parcel. The record indicates that other interested parties attempted to intervene but no ruling was made on their motions. Some of these persons have filed an Amicus Curiae brief in this appeal. Their arguments will be addressed herein. [1ASR2d86]

FACTS

The pertinent facts in this case began when the disputed land was leased by the Matai Puailoa to the representative of the Mormon Mission around the turn of the century. The lease is mentioned in a decision published in1909 by the High Court, AloTaisi v. Puailoa, I ASR 194 (1909). That decision indicates that the Mormons leased communal land from the senior matai of the Puailoa family:

"The defendant's claim of ownership arises from the undisputed overlordship of the name Puailoa over all Malaeimi not controlled by Fanene, a Malaeimi chief of equal rank." Id. at 195.

The court further describe various other indicia of the communal nature of Malaeimi, giving a brief history of its cultivation and defense by Puailoa and Fanene.

The subject properties next came before the High Court in 1931 in the matai case of Nouata of Nu'uuli v. Pasene of Nu'uuli (LT No. 18-193). Apparently, Puailoa Vaiuli, the matai had leased the land to the Mormons, had died in 1929. The church was uncertain to whom it should make rental payments.

The court, in awarding the matai title to Nouata, mentioned that Malaeimi was land of the Puailoa family, but also ordered that the widow of the late Puailoa should have, during her lifetime, the rents from that part of Malaeimi leased to the Mormons ($10.00per month). The lease expired and in the mid 1940's was re-negotiated with the widow for $360.00 per year ($1 per acre). In 1953, in exchange for $30,000,the widow executed a Common Law Fee Simple deed to the Mormons.

In 1978, the Puailoa family sought to renew the matter via a motion for new trial in the1931 decision (The widow had died in the interim). The trial court denied the motion. That denial was upheld by this court on different grounds. Nouata of Nu'uuli v. Pasene of Ni'uuli (AP No. 007-79, July 11, 1980). That decision contains a rehash of most of the facts above stated. In th~ instant case, the trial court undertook to finally resolve the status of the subject property on the merits.

HOLDING OF THE TRIAL COURT

Trial of the matter commenced on March 2, 1982 and on April 19, 1982 the trial court entered its decision and order. It held that the land Malaeimi is communal land of the Puailoa family; that the 1953 deed was void ab initio, that the survey prepared in 1981 by Meko Aiumu, Chief of the Lands and Survey in American Samoa, establishes the exact location of the 313.61 acre subject property, and that the Fanene family has no interest in or right to the subject land. The court further ordered that any leases that the church may have given ate cancelled, that a historical wall on the property be preserved and the order of preservation enforced by the Historical Site Preservation Council, that a 60 acre parcel contiguous to the property is communal land, and that a lease on a portion of that property, given to Burns Philp, be cancelled.

QUESTIONS PRESENTED

1. Was the trial court's conclusion that the disputed land is communal supported by the evidence?

2. Did the trial court act arbitrarily in determining the rights of the parties in the disputed land?

3. Did the trial court err in its conclusion regarding the extent and nature of the interest acquired by the church? [1ASR2d87]

4. Did the trial court exceed its jurisdiction in determining the rights and liabilities of persons not before the court?

CHARACTER OF THE LAND

At the outset, though clearly not within the contemplation of the trial court, we are compelled to note certain aspects of the treaty obligations still possessing force and effect greater than all law but the United States Constitution, by which the Samoan way of life is protected. We begin with the General Act Samoan Islands, Treaty of Berlin (June 14, 1889), Fourth Declaration:

A declaration respecting titles to land in Samoa, restraining the disposition
thereof by claims thereto and for the registration of valid titles.

The particulars of the fourth declaration are embodied in Article IV wherein lies the restriction against the alienation of native land. The first declaration and Article I grants Samoans the right to governance in accordance with their customs.

These protections were later embodied in the Treaties by which Eastern Samoa was ceded to the United States and the revised Constitution of American Samoa as approved by the President's delegate. The Cession of Tutuila and Aunu'u, (April 17, 1900) guarantees "preservation of the rights and property of the inhabitants of said island.., their lands and other property...," and respects the authority of the chiefs. The Cession of Manu'a Islands (Feb. 14, 1904) states that "the rights of the chiefs in each village and of all people concerning their property according to their customs shall be recognized". Article I, section 3 of the revised Constitution of American Samoa grants authority to legislate against the alienation of land and the destruction of the Samoan way of life, and to enact measures to protect "lands, customs, culture, and traditional Samoan family organizations."Seui v. Mata'afa, 4 ASR 33 (1963); Mulitauopele v. Paleafei, 3 ASR 93 (1953); To'omata v. Vea, 2 ASR 564, (1950).

These provisions, fairly read d; not carve "Fa'a Samoa" into stone. Rather, they insulate the same from erosion due to any influence other than the natural progression of time. They are not intended to force the retention of custom, culture, and tradition upon Samoans, but instead to assure that the Samoan way of life is allowed to follow its own path. As such, these provisions establish a presumption in favor of the customs and traditions prevailing in the Territory.

The hallmark of the Samoan way of life is the communal land system. Without communal land, a Matai has little purpose. There is nothing new about communal land. It is the original form, the essence of what all the afore mentioned provisions sought to protect. Since all land was once communal land, there is a presumption that all land still is. It is this presumption that any entity asserting that a given parcel is anything other than communal land must inevitably overcome.

The conclusion of the trial court that the land in dispute was the communal land of the Puailoa family at the time the widow attempted to deed it to the Mormon Church is affirmed.

PUAILOA FAMILY'S RIGHT TO THE LAND

Having concluded that the disputed land was communal at the time of the purported sale, it was incumbent upon the court to determine that it belonged to one or more families, or had instead been alienated by operation of law, See ASCA section 37.0120, or by the appropriate matai in accordance [1ASR2d88] with the strict procedures relating thereto that were in effect in 1953. See, e.g., Mata v. Soliai, 3 ASR 108 (1954); Satele v. Afoa, 1 ASR 424 (1930); Sione v. Tiuali'i, 3 ASR 66 (1953);Mulitauaopele v. Paleafei, 3 ASR 93 (1953).

There being no evidence whatsoever before the court to indicate that a transfer by a matai with the consent of the family and the approval of the governor had occurred, the trial court properly concluded that it had not. Since a family member cannot adversely possess communal land, there could be no tacking and the operation of law could not vest title in the less than thirty years involved in the instant rase regardless of the manner of possession (see ASCA section 37.0120(a). (1)

By implication, the court could not then have concluded that title to the disputed land had passed to the Mormons. The land was communal and the families claiming the right thereto were before the court. It was therefore properly within the province of the court below to determine their respective interests. Title was vested without discussion: "We further hold that Malaeimi is and always had been the communal property of the Puailoa family."

We thus conclude that the lower court was not "clearly erroneous" in vesting title to the communal land before it in the Puailoa family.

CHURCH'S INTEREST

ASCA section 37.0204(D) provides in part:

This section does not prohibit the conveyance and transfer of native land [for governmental purposes, to the U.S. or American Samoa Government or an agent thereof, upon approval of the governor] to an authorized, recognized religious society, of sufficient land for erection thereon of a church, a dwelling house for the pastor, or both; provided, that the conveyance and retransfer of such land shall be to native Samoans only and in the discretion and upon the approval of
the governor.

This law does not contravene the aforementioned treaty in that it is consistent with the Samoan custom by which the matai may assign a parcel of communal land for use by an assignee so long as the assignee exists and serves the matai. Such service may consist of the provision of a religious program. ASCA section 37.0204(d) alone provides the authority by which the Mormon Church may continue to hold that land necessary for the continuation of its religious enterprise. Togia v. Aumua, 3 ASR 3 (1951), had previously authorized the dedication of that much communal land as is necessary for church service. We note that the record amply establishes the donative intent of the Puailoa Matai, commencing with the original lease, and all pertinent Governmental approvals. The interest thus held continues so long as the church continues and need not be labeled in any way. However, if the contemplation of the statute is to be given a name, it would be an easement in gross. [1ASR2d89]

JURISDICTION

The judgment of the trial court purported not only to affect the status of the land claimed by the Mormon church, but also the status of an additional 60 acres to which the church had no connection, and, as well, addressed the rights and liabilities of several persons who were not parties to the action. The trial court eventually terminated the property rights of several individuals without their knowledge and without granting them an opportunity to defend their interests. Elementary concepts of due process require notice and a hearing prior to the deprivation of property rights. Fuentes v. Shevin, 407 U.S. 67, 80. 40 L.Ed. 2d 558 (1972); Armstrong v. Manzo, 380 U.S. 545, 547, 14 L.Ed. 2d 62 (1965). one is not bound by a judgment resulting from litigation which he is not designated as a party and to which he has not been mad a party by service of process. Hansberry v. Lee, 311 U.S. 32,40, 85 L.Ed. 22 (1940); Eb. Elliot Adv. Co. v. Metropolitan Dade County, 425 F2d 1141, 1148 (5th Cir.), cert. denied 400 U.S. 805 (1970).

Those portion he decision of the trial court of property not claimed by the Mormons and affect the who were not parties to the litigations were in attempting to dispose rights of individuals erroneous and are reversed.

CONCLUSIONS

The decision of the trial court is affirmed in part, modified, and reversed in part. As to the right of possession of the disputed land set forth in the pleadings and described by the trial court as the 1981 survey by Meko Aiumu, Chief of Lands and survey of American Samoa, the decision of the trial court is affirmed and such land is the communal property of the Puailoa family.

This land consists of 313.61 acres and shall be registered in thy name of the Puailoa title holder. It contains the land upon which the Mormon Church has constructed buildings for Church services and pastorage. The Mormons may continue to use so much land as is necessary to maintain and employ these buildings in their religious programs so long as this use continues. All other portions of the judgment, involving matters that were not raised by the pleadings, and indispensable parties that were not joined in the action, are reversed. The reversed portions of the judgment are:

(1) that portion vesting a fee simple interest to the land occupied by the American Samoa Community College in the Government of American Samoa, [1ASR2d90]

(2) that portion vesting a fee simple interest in the land upon which church buildings have been constructed in the Mormon church,

(3) that portion requiring the Puailoa family to reimburse the Mormon church for buildings constructed on the Puailoa communal land,

(4) that portion decreeing the rights and obligations occasioned by the payment of $30,000 by the Mormon church to the Puailoa widow,

(5) that portion purporting to affect unknown leases which may have been entered into by the Mormon church with unknown persons,

(6) that portion purporting to affect the rights and liabilities of persons living on the land by "license" of the Mormon church,

(7) that portion enjoining the Puailoa family from damaging Tongan wall and ordering the Historical Site Preservation Council to ensure its preservation, and

(8) that portion affecting rights and liabilities as to the 60 acres which was originally leased by but not a part of the purported 1953 conveyance to the Mormon church.

Except for number 2, above, we intend no intimation as to the ultimate correctness of these holdings. It is our opinion that the matter pleaded before the court involved only the right to possession and ownership of the 313.61 acres purportedly conveyed to the Mormons in 1953. The court had no jurisdiction to decide the peculiar issues and equities raised by its vesting of title; nor did it possess jurisdiction as to parties not joined and matters not pleaded.

We are aware that a multiplicity of lawsuits may be occasioned by the reversals. However, the would-be parties should all be mindful that failure to reach an amicable accord amongst themselves may ultimately result in a court judgment far less favorable than they could negotiate.

**********

*Honorable Samuel P. King, United States District Court Judge, District of Hawaii, sitting by designation of the Secretary of the Interior.

**Honorable Phillip C. Wilkins, United States District Court Judge, Northern District of California, sitting by designation of the Secretary of the Interior.

1. Although we have addressed the merits of Appellant Reid's adverse possession claim, in order to expose the weakness thereof, we are also compelled to consider the adverse possession statute itself. Adverse possession is a method by which land may be alienated and acquired.
Accordingly, its intent and effect is limited by the numerous protective provisions discussed at length above. Since under the present law anyone may own freehold land, anyone may acquire it by adverse possession. It follows that a matai may acquire communal land for and on behalf of his extended family, and that an individual of 50 per cent or greater Samoan blood may acquire "individually owned" land, by adverse possession. Further, since there are particularly restrictive procedures governing the conversion of communal land into individually owned land (citations omitted], even a person of 50 per cent or greater Samoan blood may not acquire communal land by adverse possession. We do not believe the legislature intended any other result in enacting ASCA section 37.0120. Finally, one might also inquire whether the adverse possession statute has been passed by 2/3 of two successive legislatures. See Article I, Section 3, Revised Constitution of American Samoa.

Tafaoa v. Tafaoa,


FIALUPE TAFAOA, Petitioner,

v.

FALEFUAFUA TAFAOA, Respondent.

High Court of American Samoa
Trial Division

DR No. 55-82

December 16, 1982

__________

Awards for alimony and child support must be predicated upon in personam jurisdiction which cannot constitutionally be had, except in unusual circumstances, in the absence of personal service of process within the court's jurisdiction.

GARDNER, Chief Justice.

Petitioner and Respondent are residents of American Samoa. Petitioner has set forth a cause of action for divorce. She asks for an award of property, custody of children, alimony, child support and attorney fees. Since jurisdiction over the subject matter is obvious we have previously awarded petitioner a divorce, "custody of the children and all property acquired during the marriage. However, we decline to make an award of alimony, child support or attorney fees. These items fall into the in personam category and this court doesn't have in personam jurisdiction over [1ASR2d69] the respondent. In this respect respondent has not made a appearance nor has he been personally served with process within the jurisdiction of the court. Instead, there has been substituted service by publication in a newspaper plus posting on the courthouse steps based on the allegation that respondent is not within the territory. This procedure fails to give respondent the type of notice which satisfies constitutional guarantees of due process. We start our brief discussion with some fundamental precepts plus a truism.

The fundamental precepts are that while due process may be an "elusive concept," (Moyer v. Peabody, 212 U.S. 78) a fundamental requisite is the opportunity to be heard (Golden v. Kelly, 399 U.S. 254) and this, of necessity, includes adequate notice because without notice there is no opportunity to be heard (Mullane v. Central Hanover B&T Co., 339 U.S. 306).

The truism is that legal publication, standing by itself, is meaningless. It is a legal fiction which is as phoney as a nine dollar bill. The possibility that this respondent, "believed to be somewhere in the United States," might see this notice buried in the Samoa News is so remote as to be non- existent. As Justice Jackson said, with his usual tongue-in-cheek understatement in Mullane, "Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper's normal circulation the odds that the information will never reach him are large indeed."

The seminal case on the service of process on a defendant in a civil action in which a personal judgment is to be rendered is, of course, Pennoyer v. Neff, 95 U.S. 714, which held that a personal judgment based on constructive or substituted service of process is contrary to due process of law. Thus, the leading case of De La Montanya v. De La Montanya, 112 C 101, 44 Pac 345, held that an alimony award could only be made after personal service on the husband within the jurisdiction. So too, an award of child support is a judgment in personam and can be validly rendered only after personal service within the jurisdiction (Sharon v. Middleman, 146 CA (2) 199,303 Pac (2) 906).

Substituted service is considered exceptional and is justifiable only under special circumstances. Thus, domicile plus personal service out of the state has been held to be sufficient (Milliken v. Meyer, 311 U.S. 457). When a defendant conceals himself, publication may meet the requirements of due process (See Restatement, Conflict of Laws 2nd, p.25, comment d). So too, published notice to multiple beneficiaries of a trust who could not with due diligence be found in the state was found adequate in Mullane, supra. The discussions of "doing business" in the state "causing an effect in the state" or "establishing minimum contacts" in the state to the extent that requiring a defendant to appear in the forum state does not offend "traditional notions of fair play and substantial justice" (International Shoe Co. v. Washington, 326 U.S. 310) merely begs the question. The issue here is simple: Did the defendant receive notice? He did not. Therefore, this court has no jurisdiction over the person of the defendant and is powerless to render a personal judgment against him for alimony, child support or attorneys fee. (Estin v. Estin, 334 U.S. 541;Vanderbilt v. Vanderbilt, 354 U.S. 551 (1)). [1ASR2d70]

The court will, however, reserve jurisdiction over these matters until such time as respondent may come within the jurisdiction of the court. In the meantime petitioner may wish to avail herself of the benefits of the Uniform Reciprocal Enforcement of Support Law.

**********

1. It is noteworthy that in Vanderbilt, the most recent Supreme Court case wrestling with Full Faith and Credit problems arising from domestic relations litigation, Pennoyer was cited as authority for the proposition that the Nevada court had no jurisdiction over the wife who was not served in Nevada. Pennoyer may be attenuated but it is still vital.

Lutali v. Pereira,


A.P. LUTALI and PAOPAOAILUA M.
MULITAUOPELE, Petitioners,

v.

JOSEPH MOESEISEIPEREIRA, Respondent,
ALEKI SENE, Respondent, ACE TAGO, Respondent.

High Court of American Samoa
Trial Division

CR No. 44-81
CR No. 45-81
CR No. 46-81

September 25, 1981

__________

Court rule providing for criminal prosecution by petition contravenes statute and usurps discretionary function of executive branch, thereby violating constitutionally mandated separation of powers.

MURPHY, Associate Justice.

Petitioners A.P. Lutali and Paopaoailua M. Mulitauopele, through their counsel have petitioned this court to issue a criminal information under Rule 15 of the Rules of Practice of the High Court of American Samoa to be brought against the defendants. The question of law before this court can be stated as follows: Can the Chief Justice of the High Court of American Samoa issue a rule under statutory authority that permits a private citizen to institute a prosecution if the Attorney General will not prosecute the case? This court has determined that Rule 15 is invalid and for the reasons given below, we grant the defendants' motion to dismiss.

STATEMENT OF THE CASE

On April 30, 1981 A.P. Lutali and Paopaoailua M. Mulitauopele brought a petition under High Court Rule 15 to issue a criminal information against Joseph M. Pereira, Aleki Sene and Ace Tago. This petition alleged that on October 30, 1980 these defendants, in violation of Title 3, section 1511 of the American Samoa Code (1973 Edition) did use their public office to influence the election of a political candidate. Lutali then sought an investigation and ensuing information from the Attorney General. The Attorney General refused to file an information against defendants. Under authority of the provisions of High Court Rule 15, A.P. Lutali and Paopaoailua M. Mulitauopele have petitioned this court to issue a criminal information, as the Attorney General has specifically refused to prosecute the case.

CONSTITUTIONAL GUARANTEES TO TERRITORIAL GOVERNMENTS

In an unincorporated territory there is a rebuttable presumption [1ASR2d59] favoring the application of the constitution which may be overcome by proof that the application of a specific provision in that territory would be impractical or anomalous. It is established that where the right is crucial to the individual, the territory has a heavy burden to justify non- application. Constitutional protections may not be defeated by mere inconvenience or expediency. See Laughlin, The Application of the Constitution in United Territories: American Samoa, A Case Study, 2 U. Haw. L. Rev. 313 (1980). The Appellate Division of the High Court of American Samoa, in Craddick v. Territorial Registrar, AP No.010-79 (1980), stated: "(T)he constitutional guarantees of due process and equal protection are fundamental rights which do apply in the Territory of American Samoa."

THE CONSTITUTIONAL GUARANTEE OF SEPARATION OF POWER

One of the aspects of the United States Constitution that the framers of the Samoan Constitution incorporated was that of separation of powers. Rev. Const. of Am. Samoa, art. II, art. III, art. IV. The importance of the tripartite structure is well established in cases arising in the United States. See, e.g., Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549 (1947);Laisne v. Cal. State of Optometry, 19 Cal 2d 831, 123 P.2d 457 (1942). The American Samoan people incorporated this framework into their constitution and underscored its importance, since the U.S. Constitution does not impose the doctrine of separation of powers upon the states.Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605 (1974).

In performing judicial functions. the courts must be careful to keep within the constitutional limits of their own powers and to proceed by due process of law. Dillman v. Tedder, 123 Fla. 188, 166 So. 590 ( ). The guarantee of a judiciary separate from the executive branch is necessary and appropriate.

The Constitution specifies a separate judiciary. Revised Constitution of American Samoa, articles II, III, and IV. In maintaining its separate identity, the judiciary should cautiously abstain from an invasion or usurpation of the powers which are properly exercisable by any other departments of the government. State ex rel. Davis vs. Stuart, 97 Fla. 69, 120 So. 335 (1939).

AUTHORITY AND DISCRETION TO PROSECUTE
LIES WITH THE EXECUTIVE BRANCH

The Revised Constitution of American Samoa is modeled after the federal constitution. By article 30 of the Declaration of Rights of the Constitution, the government is divided into three departments and it is provided that "the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: the judiciary shall never exercise legislative executive powers, or either of them..." (emphasis added).

The prosecutorial duties in this territory have been vested in the office of the Attorney General. "All criminal prosecution shall be brought in the name of the Government of American Samoa. The Attorney General shall prosecute all criminal cases before the High Court." Section 46.1220, ASC (1963). Although there is no law in this territory on this specific issue we are persuaded by the rationale of the court in Kansas v. Galen Finch, 128 Kan 665, 280 P. 910, 911 (1929) , which stated: "[A]s a rule, the attorney [1ASR2d60] general has power both under the common law and by statute to make any disposition of the state's litigation that he deems for its best interests, for instance, he may abandon, discontinue, dismiss, or compromise it." In U.S. v. Cox, 342 F.2d 167, the Fifth Circuit stated that "the Attorney for the United States is an executive officer of the executive department that exercises discretion as to whether or not there shall be a prosecution in particular case." In a more recent case, the Second Circuit stated guidelines for the federal and state courts which can serve as a model for our territorial court. Quoting Inmates of Attica Correctional Facility.v. Rockefeller, 477 F.2d 375(1973): "Substitution of a court's decision to compel prosecution for the United States Attorney's decision not to prosecute, even on an abuse of discretion standard even if limited to directing that prosecution be undertaken in good faith , would be unwise ." Id. at 380-81. "Federal Courts have traditionally and, to our knowledge, uniformly refrained from overturning, at the instance of a private person, discretionary decisions of federal prosecuting authorities not to prosecute persons regarding whom a complaint of criminal conduct is made." Id. at 379. Judicial regulation of prosecutorial discretion "would place the reviewing court in' an undesirable and injudicious posture of becoming superprosecutors." Ibid.

REVIEWABILITY OF PROSECUTORIAL DISCRETION

In almost every jurisdiction, there have been numerous attempts to employ a writ of mandamus issued by the judiciary to compel an executive to act. This remedy has obvious problems inherent in it, due to the separation of powers doctrine. The courts are always reluctant to award or sustain a writ of mandamus against an executive officer. Lane v. Hoglund, 244 U.S. 174 (1917). All courts agree that the separation of powers doctrine was to insure a system of checks and balances. Therefore in order to keep the checks balanced, the state courts, at any rate, have universally recognized that mandamus will not lie if the act of a state executive officer, the performance of which is sought to be enforced, is not ministerial merely, but involves the exercise of judgment and discretion. See Bryant & Chapman, Co. v. Lowell, 129 Conn. 321, 27A.2d 637, 639 (1942); State ex rel. Burnquist v. District Ct., 141 Minn.1, 168NW 634 (1918); Blalock v. Johnson, 180 SC 40, 185 SE 51 (1936).

It is clear to this court that a writ of mandamus is not readily available to a petitioner who seeks to compel an executive officer to act in a capacity that involves discretion. We agree with the Ninth Circuit Court of Appeals, which stated: "(W)e will not interfere with the Attorney General's prosecutorial discretion unless it is abused to such an extent as to be arbitrary and capricious and violative of due process. United States v. Welch, 572 F.2d 1359, 1360 (1978).

HIGH COURT RULE 15

This court acknowledges the authority from which High Court Rule 15 was promulgated. Section 3.0202ASCA (1981). However, Section 3.1002 which delineates the powers and duties of the judiciary, states: "(c) Chief Justice shall have administrative supervision over all the courts of American Samoa and their Judges, Magistrates, Clients and other officers. He may make rules regulating the pleadings, practice, procedure and all conduct of business in the appellate, trial, probate, land and titles division of the High Court and District Court."

We recognize that the High Court must, in an administrative [1ASR2d61] capacity, issue rules to effect a procedurally efficient court. However, these rules cannot usurp or "exercise powers exclusively delegated to another" department. State ex rel Bryant v. Akron Metropolitan Park Dist., 120 Ohio 464, 166 NE 407, 410 (1929), affd. 281 U.S. 74 (1930). The Fono has charged the Attorney General with the authority to exercise his prosecutorial discretion. This discretion lies solely within the executive branch. "Matters of policy effecting the prosecution of a criminal case are not within the province of the courts but are for the determination of the district attorney". Re-Application of Berman, 105 Cal. App. 270, 287 P 373, 375 (1930). This court cannot by rule authorize a person, unfettered by the due process limitations on the government, to issue a petition accusing another and subjecting the accused to the criminal processes of the court. See, e.g., Bolln v. Nebraska, 176 U.S. 83 (1900); Jordan v. Massachusetts, 225 U.S. 167, (1912), Crowley v. United States, 194 U.S. 461 (1904).

As additional support for this decision, we note that there is a conflict between High Court Rule 15 and Section 46.1002 A.S.C.A. (1981). High Court Rule 3 states that in case of conflict, resolution of such conflict shall be in the following order:

1. Revised Code of American Samoa
2. Rules of High Court of American Samoa
3. Federal Rules of Civil and Criminal Procedure.

A conflict between High Court Rule 15 and Section 46.1002 is apparent to this Court. Under High Court Rule 3, Section 46.1002 has precedence. This court confirms the prosecutorial authority of the Attorney General.

IT IS ORDERED that the defendants' motions for dismissal are hereby granted.

**********

Leuma v. Willis,


EVE LEUMA, TAVITA AVEGALIO, and 
JOSEPH AVEGALIO, Plaintiffs,

v.

TONY WILLIS, Defendant.

High Court of American Samoa
Land and Titles Division

LT No. 47-79

December 16, 1980

__________

In order to maintain an action claiming individual title to real property based upon original occupancy and use, there must be present use of the land.

MURPHY, Associate Justice.

STATEMENT OF THE CASE

This action arose in 1979 when Defendant, Tony Willis, began construction of a house on a portion of the land claimed by Plaintiffs. Plaintiff Eve Leuma, Tavita Avegalio and Joseph Avegalio claim to be the individual owners of certain real property located on or near the land known as "Lega'oa." They claim that their father, Avegalio Eseese, gained individual ownership of the land by originally clearing, planting, and occupying said land. The father died in 1973 and Plaintiffs claim title by intestate succession.

Defendant Tony Willis claims he is the owner of the disputed land, that it is a portion of a much larger parcel of land he and others own, which they refer to as "Lega'oa." He does not dispute that Eseese cleared and planted on the subject property, but contends that the clearing and planting was by virtue of an oral license granted by Willis' mother, Defendant's predecessor in interest. Willis also contends that whatever interest Eseese may have had in the property has been abandoned. Willis' claim of ownership is founded entirely upon a deed referred to in a judgment entered by the High Court on May 4, 1906, To'omata v. People of Leone (CA No.5-1906), and further construed in Falesau v. Tuitele (CA No.19-1918).

Plaintiffs, inter alia, seek to restrain defendant from continuing construction of the house: Defendant seeks to enjoin Plaintiffs from use or [1ASR2d49] possession of the subject property.

FINDINGS OF FACT

Based upon the testimony and evidence presented in Trial September 16, 17, & 18, 1980, as well as an inspection of the property by the court we make the following findings of fact:

1. The subject property consists of broken land, slopes rising to ridges, and sheer cliffs. It is at the end of a large valley which runs from the sea and ends at the waterfall. No part of the property in dispute appears to be flat land of the valley; although the site for the house is level, it is considerably higher than the valley floor.

2. During the 1940's, the Government (Territorial or United States) constructed a road through the subject property to a waterfall where it constructed a catchment and a pipe system, a modification of which is still in use by the village of Leone. The area around the waterfall consists of virgin jungle, cliffs, and a stream bed which runs through Lone and into the sea.

3. At least some portions of the subject property were cleared and planted by Eseese approximately 40 years ago.

4. In 1966 most of the crops planted by Eseese were destroyed by hurricane. Since then, Plaintiffs have had little or nothing to do with the land. Some other people, with Plaintiffs' permission, have planted and harvested crops (mostly bananas) on portions of the disputed land. Some of these banana plants were destroyed by Defendant in preparing the foundation for the house.

5. Defendant began clearing and planting some portions of the subject property in 1975.

6. The Court takes judicial notice of the proceedings in 5-1906 and 19-1918.

7. None of the parties has constructed a house or lived on the subject land until 1979 when Defendant began construction.

8. Some of the plaintiffs reside in California and resided there at the time of their father's death.

OPINION

Since both parties claim individual ownership of this property, a review of the history of the concept of individual ownership in American Samoa is useful.

HISTORY OF LAND OWNERSHIP IN AMERICAN SAMOA

I. General Trends

Prior to 1899, land in American Samoa was subject to similar laws and customs as in that which is now Western Samoa, for as most readers of this opinion know, for many thousands of years, there was only one Samoa. It has only been in recent history that the people from other countries have come to the Samoan islands, exerting their foreign laws and customs on the descendants of the original inhabitants of these islands.

Of the total area of that which is now American Samoa (excluding Swain's island and the uninhabited Rose Island), or about 45,500 acres, approximately 550-600 acres were acquired by papalagis before 1889, the freehold title being confirmed by the Land Commission. (1) This land commission [1ASR2d50] s created in the Berlin Act of 1889. One of the purposes of the Berlin Act was that Samoans might "keep their lands for cultivation by themselves and by their children after them. " The Act declared that all further alienation of native lands to non-natives should be prohibited, with two exceptions- The land commission and the Apia Court heard all land matters or all u[ the Samoan Islands until 1899 when Tutuila and Manu'a islands were ceded to the United States. At that time, there was only freehold land created by the Apia Court, and native or communal land. With the cession of Tutuila and Aunu'u the High Court of American Samoa commenced hearing disputes as to title to land, and it was at this point that land law in American Samoa began diverging from land law in what is now Western Samoa.

Although not well documented, it seems that previous and present custom .n Western Samoa was not to separate title to land from a matai title. When a village was established, the land in that valley belonged to the people of hat village. A matai could claim land for his family or clan by clearing and then working. Any land that was not under the direct "pule" of a matai remained belonging to the people of the village. Paramount chiefs would ave a more general control of larger areas. It is important to keep in ind that the power of a matai was really defined not by title name, but by the land over which he had control. Through this system, ownership of land rom the mountain peak to the reef defined among the various families, villages, land districts. Under the present Western Samoa Constitution there re thre( types of Land in Western Samoa: Government, freehold, and customary (ie:communal).

II. History of Individually Owned Land in American Samoa

"Can't you stop thinking about 'owning things,' said Vai. How many 
times have I told you that no one owns things in Samoa. We only 'use' 
them. If we clear and plant this Land it is ours. If we stop using it someone 
else can have it." Calkins, My Samoan Chief, The University Press of 
Hawaii (1962), at 92.

Given the scanty number of statutes in this Territory covering the subject of alienation and title to real property, (2) the quagmire we find ourselves in presently has developed through 80 years of case law. While succession to matai titles was originally governed by custom and tradition, it was soon changed so it was determined by statute. (3) Succession to land seems to have been governed by possession and control. See Sapela v. Veeval, 1 ASR 124, 129 (1905), and Siopitu v. Faiivae, 1 ASR 138 (date unknown), in which this court was already trying to apply the common law concept [1ASR2d51] of adverse possession to the Samoan land system, the foreign concept of adverse possession being based on possession and control.

A review of these early land title cases leads us to believe that the reasoning behind the decisions was that title to native or communal land (these terms will be used synonymously throughout this opinion) was never legally bound to the matai titles. As mentioned previously. the two titles have remained in tact in Western Samoa. The Court then began securing claims to title to land by means of surveys and registration of title. See Vili v. Faiivae 1 ASR138,139 (date unknown); Maloata v. Leoso, 2 ASR 2 (1938) As lands were surveyed and registered , the remaining areas (most of the land on the island), primarily virgin forest, remained unclaimed and unregistered. We can find nothing in the cases or early statutes in which the Court recognized the superior claim of a paramount chief or the people of a village to all the lands extending from the ocean to the mountain peaks. In fact, the Court specifically rejected claims to land title made by Tuimanu'a on the grounds that the title was political. Alesana v. Siupolu (1922) 1 ASR 346. 351. This is another example of the court limiting the title to the land to the cultivator or user of the land. As we look back at these cases in general. and the Tuimanu'a case in particular, we note that the court constantly refers to English common law, Tiffiny of Real Property. Maine Ancient Law. or tries to compare the King of Manu'a to the King of England, and this was the rationale on which the Court limited land title to the cultivator or user.

In the years from the cession of the eastern Samoan islands to the United States until the beginning of World War II, the Court, unwittingly we think, laid the precedents necessary to file a claim of individual ownership by leaving virgin land unregistered and by favoring the user or cultivator in land disputes.

It is clear from early decisions that all surveyed and registered native land vested a fee in someone or something. Maloata v. Leoso,1 ASR 134, 138 (1905). But in the same case, the court also said:

It was well known custom in Samoa that the individual owner of property, 
not withstanding his well established rights to it, was subject to the will of 
the community and upon the commission of any act contrary to the desire 
of the community he would be banished or have to submit to gross 
degradation imposed by the people (underscoring added). Id. at 137.

The Court seems to be talking about some form of ownership different from the traditional papalagi concept of fee simple. Five years later, the court held:

...It would be a disastrous shock to the social system of Samoa under 
which it has progressed already so far towards civilization to permit a 
member of a family to withdraw entirely and grant him a fee-simple title 
of land which he had previously occupied and cultivated under the 
control of the head of the family. Sapela v. Mageo (1910) 1 ASR 223, 
224.

And even as late as 1932 we see:

The Court does not favor the holding of large tracts of land by individual 
Samoans, --it is manifestly better for the interests of all the Samoans that 
land be more or less equally distributed among the respective matais in 
Samoa. Satele v. Afoa, 1 ASR 467, 471 (1932). [1ASR2d52]

While in 1900 there had been only two types of land, freehold and native land, the decisions cited above unwittingly recognized two divisions of native land: native land in which a trust is imposed on the matai, and another form ut land not specifically defined, but having some of the qualities of fa'a Samoa and some of the qualities of fa'a papalagi .

World War II seems to have brought on an awareness of the potential in these decisions cited above. In Tiumalu v. Simaile (1945) 2 ASR 222, 224, the court recognized specifically the ownership of land other than freehold as personal. The presumption of individual ownership in absence of evidence of communal ownership was established in this case, as well as the right of the estate being inheritable.

In 1947, in a case involving the Defendant in this action, the court belatedly recognized problems of alienation caused by its prior decisions, and supported , a statute prohibiting alienation of land on the basis of blood. Willis v. Willis 2 ASR 276, 278-279 (1947). This decision was based on blood lines and was a departure from the court's previous decisions in which they supported those who cultivated and used the land. This departure may be reconciled because it was decendents of the first users who received the land. Also in 1947, the Court held that virgin bush cleared by a matai could be individually-owned and could be inherited. Tago v. Mauga, 2 ASR 285 (1947)

In Letele Family v. Lagoga 2 ASR 466 (1949), the Court adopted a rebuttable presumption that when a matai or his family clears bush land, he do so for the communal family. 2 ASR 466, 469. This case again focused on the use and cultivation as the key to ownership. Accord, Toomata v. Ve'a, 2 A.S.R. 564, 571 (H.C.T.D.1950); Soliai v. Levu (1949) 2 ASR 440, 442-443.

These decisions suffer from a lack of consistency. When reviewing the lot, we sence [sic] the Court was improvising decisions ad hoc to fit the equities of each case. Having established individual ownership, the court then had to prevent alienation of land to non-Samoans; thus theWillis case cited above, which upheld racial classifications for purposes of ownership. Although the 3/4 blood requirement has been modified by subsequent statutes, it remains a racial classification which controls the ownership of land in this Territory. Such a constitutionally suspicious vehicle would not be necessary if the concept of communal land had been faithfully embraced.

In 1948 Justice Morrow started defining individually-owned land by attributing certain characteristics to it. Justice Miyamoto provides an excellent collection of these cases in his opinion in Fanene v. Talio LT No. 64-77 (1977). We draw heavily on the citations in his opinion, but come to a different conclusion because of a different perception of Samoan custom.

One of the first decisions in which the words "individually-owned land" are used, is the case of Taatiatia v. Misi, 2 ASR 46 (1948), in which the Court stated that which the Defendant did to justify his claim to individual ownership of the land, and enunciated the legal basis for the conclusion he reached:

It is our conclusion from the evidence, which in some respect is conflicting, 
that Misi entered upon the land in 1919 while it was bush and cut the large 
trees thereon and that after letting the trees lie for a year he burned them and 
proceeded to put in plantations, and that he has used the land ever since for 
plantation purposes. The land being bush and not occupied by anyone was 
res nullius, the property of no one. When [1ASR2d53] Misi entered upon it 
and cut down the trees and put in his plantations and claimed the land as his 
own, it became his in accordance with the customs of the Samoans, which 
customs, when not in conflict with the laws of American Samoa or the laws 
of the United States concerning American Samoa, are preserved. Sec. 2 of 
the A.S. code. There is no law of American Samoa or of the United States 
concerning American Samoa in conflict with the customs of the Samoans with 
respect to the acquisition of title to bush land. Blackstone considered that an 
original title to property was acquired by the first occupant under a claim of 
ownership. II Blackstone's Commentaries, pp.8-10.See also Maine on Ancient 
Law, 5th Ed. pp.242-246. With him was such an occupant. Taatiatia v. Misi 
(1948) 2 ASR 346, 347.

It seems to us that Justice Morrow misstated Samoan custom (that the virgin bush belonged to no one), and then applied the law of old England (Blackstone and Maine) to a land system and culture completely different. It is no wonder he got such a result as the concept of homesteading individually-owned land. Six months later, Justice Morrow decided individually-owned land may be acquired if a matai gives it away as such. His citation of authority for this is his judicial knowledge that it has been done in the past:

...We know judicially that some matais in American Samoa have, with 
the consent of their family members, given family lands outright to certain 
members of their families. Taetafea testified that she was present and 
heard old Gi in 1905 make a gift of this land to her and her husband and 
that such gift was a reward for splendid service rendered by her husband 
and herself to the then Gi; also that such gift was followed by possession 
by the donees. Gi v. Taetafea, 2 ASR 401, 403 (1948).

It is hard for us to "judicially know" that the old Gi, by giving away the land "outright " intended to gi ve a fee simple, a concept we "judicially know" existed then only through a few prior decisions of Samoan courts. Maybe what the old Gi intended when he gave away the land outright was to designate that communal land for a particular family's use. From the authorities we have cited above, that seems more in keeping with the Samoan tradition than does a gift in fee.

Two weeks later, Justice Morrow stated if virgin, unclaimed land is cleared and occupied for individual benefit, the Court will find this sufficient to support a claim of individual ownership. His citations of authority for this are again Maine and Blackstone. Muli v. Ofoia 2 ASR 408, 410 (1948).

More recently, in a landmark case in individually-owned land, the Court decided portions of a large parcel of land near the airport were individually-owned. The justification for this was:

This court has ruled many times that Samoans may acquire title 
to land through first occupancy accompanied by claim of ownership. 
Soliai v. Lagafua, No. 5-1949 (H.C. of Am. S.); Faatiliga v. Fano, 
No. 89- 1948 (H.C. of Am. S.);Gi v. Te'o, No. 35-1961 (H.C. of 
Am. S.); Magalei et. al., v. Lualemaga et. al., No. 60-1961 (H.C. 
of Am. S.). This doctrine of the acquisition of title by first occupancy 
coupled with a claim of ownership is approved in Main's Ancient Law 
(3rd Am. Ed.) 238. See also 2 Black-[1ASR2d54]stone 8. The most 
common way for a Samoan to acquire title to land is to clear a portion 
of the virgin bush, put in plantations on the cleared area, and claim it 
as his own land or the communal land of his family. This is a recognized 
way of acquiring land according to Samoan customs. Government v.
Letuli LT No.016-63 (1963).

In Haleck v. Tuia (1974) LT No.1386-74, the Court found:

The Plaintiff entered upon the land in 1947 and began to clear it and 
use it. At the time of entry it was virgin bush land. That no other person 
ever worked upon this land. That after viewing the property the Court 
is satisfied that the plaintiff has substantially cleared the entire tract and 
a considerable plantation was developed. That no objections were ever 
made by anyone during the entire period from 1947 to the time of filing 
the petition for registration. The Court further finds that the plaintiff went 
upon the land as an individual and not under the direction of a matai; that 
the work done was entirely at his individual expense, and not as a 
communal effort.

Based on these findings of fact, the Court reached the following conclusion of law:

When an individual goes upon virgin bush land, clears it and develops 
a plantation, using his own personal resources, and it is done without 
direction of the matai of the family, and without communal family funds or 
donated help of the members of the family, the property becomes the 
individually owned land of the developer, and he is entitled to have the 
land registered as his individually owned property.

Having reviewed these cases, in Fanene v. Talio, LT No.64-77 (1977), Justice Miyamoto described individually owned land as that land:

...(1) cleared in its entirety or substantially so from the virgin bush by an 
individual through his own initiative and not by, for or under the direction 
of his aiga or the senior matai, (2) cultivated in its entirety or substantially 
so by him, and (3) occupied by him or his family or agents continuously 
from the time of the clearing of the bush.

In trying to define individually-owned land, it would be helpful have been provided guidance by the Fono, for after all, the legislators are the elected representatives of the people, and if policy decisions are to be made which will affect all or almost all of the people, it is better to have the duly elected representatives make these decisions than it is to have judges make them as appears to have been done in the past.

Unfortunately, neither the Fono nor the preceding governors appointed by the Secretary of Interior have been of much help. The definitions of Native land and freehold land5appeared in the American Samoa Code of 1949 (4), and remain unchanged today. (5) In 1962, the legislature passed laws [1ASR2d55] recognizing the concept of individually-owned land, (6) and actually did define individually-owned land in Public Law 7-19 (1962) (7) as follows:

Sec. 9.0103 -INDIVIDUALLY OWNED LAND: Individually owned 
land means land that is owned by a person in one of the first two categories 
named in Sec. 9.0102 , or that is owned by an individual or individuals except 
lands included in court grants prior to 1900. Such land may be conveyed only 
to a person or family in the categories mentioned in Sec . 9.0102, except that 
it may be inherited by devise or descent under the laws of intestate succession, 
by natural lineal descendants of the owner. If no person is qualified to inherit,
the title shall revert to the family from which the title was derived.

As originally enacted, the categories of individuals referred to in Sec. 9.0102 were (1) full blood American Samoan, and (2) a person who is of at least one-half Samoan blood, was born in American Samoa, is a descendant of an American Samoan family, lives with Samoans as a Samoan, has lived in American Samoa for more than five years, and has .officially declared his home for life. (8) There is no indication that Secs. 9.0102 and 9.0103 were passed by two successive legislatures as required by Article I, Section 3, and Article II, Section 9, Const. Am. Samoa. (1960). In the last four years, there have been seven attempts to define individually-owned land , none of which has passed both houses. (9)

We are left then, with little legislative guidance, and case law founded on English common law, Blackstone' s Commentaries, Maine's Ancient Law, and customs previous high court justices have judicially known.

CONCLUSIONS OF LAW

1. Plaintiffs' father abandoned the land in 1966. In order to maintain an action based upon original occupancy and use, there must be a present use of the land. The evidence shows that Plaintiffs have not used or otherwise occupied the land since 1966. Ilaoa v. Toilolo, 1 ASR 602, 606; Fanene v. Talio LT No.64-77 (1977). So even individually-owned land is that which Justice Morrow may have partially defined, this land is not that.

2. The land is not the individually-owned land of Defendant. We make this conclusion without deciding the validity of the deed though which Willis claims the land. We have found that Willis and his co-tenants were deeded only the flat land of the valley. Since we have found that the land in question is not part of the flat land of the valley, Willis cannot claim this land by the deed, whether or not the deed is valid.

**********

1. Kessing, Modern Samoa, its government and changing life, 268 (1978 reprint of 1934 ed.).

2. We find it interesting that a culture founded upon its communal land system has approximately 17 pages of laws covering the entire area of real property, while the juvenile act of 1980 consists of 58 pages and has been applied Less than ten times this year.

3. While it is unclear how the High Court became the arbiter of matai titles, the first law we can find giving the court the power was Regulation No. 8--1900, enacted September 14,1906 by C.B.T. Moore, Commander, U.S.N., Governor. When the court became involved with disputes as to matai titles, it also became involved with disputes as to land titles.

4. A.S. Code 1280 states in part: "... The term 'native land' shall mean communal land. The term 'freehold lands' shall mean all those lands included in court grants prior to 1900 which have not, at the request of the owner, been returned to the status of other land in American Samoa surrendering its freehold characteristic.

5. 5.27 A.S.C. 201.

6. 27 A.S.C. 402(a) and 27 A.S.C. 1202(c).

7. Act of April 7, 1962, Pub. L. 7-19, codified IX Code American Samoa, section 9.0103 (1961).

8. See note 7, supra.

9. S.107, 15th Fono, 3d Sess. (1978); H.157, 15th Fono, 3d Sess. (1978); H.220, 15th Fono, 4th Sess. (1978); S.2, 16th Fono, 1st Sess. (1979); S.59 , 16th Fono, 2nd Sess. .(1979); H.119, 16th Fono, 2nd Sess. (1979); S.97, 16th Fono, 3d Sess. (1980).

Leomiti; Te`o v.


UIVA TE'O, Appellant,

v.

FANENE FAMILY, FONOTI AUFATA, SALOFI R. SOTOA 
PEMERIKA TAUILIILI, and MOETAI LEOMITI, Appellees.

High Court of American Samoa 
Appellate Division

AP No. 13-78

February 25, 1980

__________

Term "natural justice and convenience" embraces due process of law, but procedures adopted to accommodate complex litigation which do not prejudice the opportunity of any party to be fully and effectively heard do not offend due process.

Before MURPHY, Associate Justice, presiding, SCHWARTZ*, Acting Associate Justice, SHRIVER**, Acting Associate Justice, TA'IAU, Associate Judge, and ASUELU, Associate Judge.

PER CURIAM.

This case came before the trial division of this court as a consolidation of 11 separate cases involving disputes over title to a large tract of land approximately 265 acres in area. In preparation for the trial, the court held three pre-trial conferences during which the procedure for the trial was established. This procedure was agreed to by all parties; and on October 24, 1977, what was to be a two week trial began. Appellant made a motion for a new trial on substantive and procedural grounds~ said motion being denied by the trial division. Appellant now appeals the decision of the lower court on the ground that the procedure used below denied appellant due process of law. For the reasons discussed below, the judgment of the trial court is affirmed.

Appellant claims that the procedure adopted by the trial court denied him the right to cross-examine all witnesses. Because of this Appellant argues he was deprived of a full hearing or opportunity for a full hearing and thereby denied due process of law. In support of his proposition, counsel for appellant cites several U.S. Supreme Court cases. Although they do support the broad hypothesis, they do not really address the issue at bar.

Due process of law has never been a term of fixed and invariable content (Federal Communications Commission v. WJR, The Goodwill Station, 337 U.S. 265 (1949)). Ordinarily, the courts do not attempt to define in a few words what is meant by this term, but are disposed to ascertain their intent and application by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require (Wolf v. People of the State of Colorado, 338 U.S. 25 (1949)). It is well established that a litigant who is not permitted a full hearing or opportunity for a full hearing has not been afforded due process of law. The issue presented in this case is whether or not this Appellant was deprived of an opportunity for a full hearing.

The procedural limitations section 412(b), which states in act in each case in such manner for this territory are contained in 5 ASC part, "...the Land and Titles Division may as it considers to be most consistent with[1ASR2d4] natural justice and convenience. Whether or not "natural justice and convenience" encompasses due process of law is an issue which has never been resolved by this Court.

The fifth amendment to the U.S. Constitution and Article I, Section 2 of the Revised Samoan Constitution both state that no person shall be deprived of his property without due process of law. To permit the Land and Titles Division of this court to handle each case in any manner it felt convenient would permit that court to make up its own rules as it wept along, with no discernible standard. This is particularly offensive here because the issues most frequently presented in the Land and Titles Division are issues which most affect the people of American Samoa, namely the land on which they live. To permit someone to take another's home and surrounding property without due process of law goes against the very foundation upon which both American law and natural justice are based. We hold therefore that the concept of due process of law is encompassed within the meaning of natural justice and convenience as used in 5 ASC 412(b).

The question presented then is did the procedure established by trial court afford this appellant due process of law?

In the case at bar, the trial court directed each person who claimed land within the 265 acres to file a claim with the territorial registrar. All eligible people were then given 60 days to object to all applicants' claims of land. Prior to trial, the order in which the claimants would present their cases was established. Each applicant for registration of title was permitted to present his case in chief. All persons objecting to that claim were permitted to cross-examine each witness after his direct testimony. Each applicant, when his turn came, was permitted to present his case in full, by calling all witnesses he felt necessary. Adverse witnesses could be declared hostile witnesses at the outset of the questioning if counsel deemed it necessary. Objectors with no claim were given opportunity to present their testimony also.

The crux of Appellant's argument is that he was not permitted to cross-examine certain witnesses immediately after their testimony. Procedurally, this was not permitted because Appellant had not objected to that applicant's claim of land. As noted above, counsel for Appellant was permitted to call any witnesses he felt necessary when it came time to prove his claim to the land in dispute. And in fact, he did call one of the opposing parties as a hostile witness and was permitted to cross-examine him at that time.

Having considered the briefs filed in this case, the partial transcript of the case below, and the argument of counsel, we find that the procedure followed by the trial court did not prejudice the Appellant in any way, and this procedure did not violate either the notions of convenience and natural justice, or due process of law. That being the case, the judgment of the trial court is affirmed.

**********

*Honorable Edward J. Schwartz, Chief United States District Court Judge, Southern District of California, sitting by designation of Secretary of the Department of the Interior.

**Honorable Paul D. Shriver, United States District Court Judge, Retired, Territory of Guam, sitting by designation of the Secretary of the Department of the Interior.

 

Kalea v. Tavai,


KALAEA aka TALAEA JENNINGS, et.al., Appellants,

v.

TAVAI, K.V. et.al., Appellee.

High Court of American Samoa 
Appellate Division

AP No. 25-82

March 30, 1983

__________

When parties maintain that they have settled a claim after trial had begun but thereafter submit separate proposed judgements, court may treat submissions as cross motions for summary judgement.

Before GARDNER, Chief Justice, presiding, KING, Acting Associate Justice, WILKINS*J(Acting Associate Justice, FAOA, Associate Judge, and [1ASR2d82] POUTOA, Associate Judge.

PER CURIAM.

Kalaea Jennings appeals a judgment filed on June 28th, 1982 respecting certain communal lands known as Gataivai in the village of Utulei, a portion of Fagatogo. Tavai Kaleopa is a senior Matai having pule over several lesser Matai's and over substantial parcels of land, at least including the land "Gataivai." See Nomaaea and Tavai Esera v. Lauulusa, 2 ASR 619 (1951).

This case begins with an action for eviction filed by Plaintiff/Appellee on March 7, 1981. A hearing was held on March 29, 1982. The pertinent facts were not in dispute. Defendant/Appellant was at one time, in the absence of the Tavai senior Matai, given permission to use and build on the Tavai communal land by a lesser Matai of the Tavai family:

The Court: Number 2 being received. Apparently, there's no dispute that 
the land is Gataivai Is there any dispute that Gataivai is 
communal land df the Tavai family?
Mr. Tuinei: To tell you the truth, your honor---
The Court: It's always a good policy. 
Mr. Tuinei: My clients have been led all along ---all these years that land 
was Laulusa land and they served that Matai and he executed 
the separation agreement. 
The Court: But there's no dispute that this communal land of --- that 
Gataivai is communal land of the Tavai family. You're claiming 
he has a separation and valid reasons to construct his house 
and it is with the permission of Matai Laulusa,is that right? 
Mr. Tuinei: Yes.

Transcript of Trial Proceedings at 17.

It became apparent that the dispute at trial turned essentially upon whether defendant was abiding by the terms which authorized his use of the communal land. After more testimony the court recessed and directed counsel to chambers. The court did not reconvene as the matter was settled at that time. Transcript at 23. By minute entry of March 29, 1982, counsel were to meet and prepare a stipulated judgment to be filed by April 2, 1982. On April 2, the court signed the "stipulated judgment" which had been submitted by Plaintiff/Appellee. On April 5, 1982, the Court granted Defendant/Appellant's motion to set aside the judgment on the asserted grounds that it was not stipulated and did not represent the settlement agreement. By order of April6, 1982, Defendant/Appellant was to submit an alternative judgment if counsel were unable to stipulate. On May 27, 1982, Defendant/Appellants filed their proposed judgement. By order of June 28, 1982, the court below rejected that judgment as being inconsistent with matters agreed upon by counsel at trial and entered judgment in accordance with the Judgment submitted by Plaintiff/Appellee on April 2, 1982.

Defendant/Appellant's Motions for a new trial or Judgement notwithstanding the verdict were denied on August 2, 1982.Defendant/Appellant noticed this appeal on August 10, 1982. It was timely prosecuted thereafter.

The issue on appeal is whether the court may properly enter judgment where the parties allege that they have settled the matter and thereafter submit separate proposed findings.

Trial had begun and was recessed at the request of counsel. Transcript at p. 23. Because counsel thereupon indicated to the court that [1ASR2d83] the matter had been settled it was not reconvened. At all times thereafter, until the entry of final judgment, neither party asserted that the settlement agreement had failed. Instead, counsel each submitted a proposed findings and judgment. It was an inherent implication of this procedure that the court would enter judgment that was consistent with the facts previously found and fair to the parties. It would have been impossible for the court to enter judgment consistent with both submissions. We note that the pertinent aspects of the judgment appealed from are favorable to Defendant/Appellant. That judgment provides that the Jennings family will retain use of the land with all rights and privileges so long as they serve the Matai and refrain from conducting themselves in a disrespectful manner. Those requirements, and all other provisions of the judgment having legal significance were not disputed. It must be presumed that any conflicts that were presented were resolved in favor of the judgment. The record does not support a claim that it was clearly erroneous.

It is apparent, however, that this case does not present an appeal from a stipulated judgment. The court below had before it the pleadings of the parties. Both counsels indicated that the matter had been settled in accordance with facts elicited in the partial trial and oral representations made in chambers. Counsel, however, submitted separate proposed judgments. At that point, the court was actually considering cross motions for judgment on the pleadings which had been supplemented by matters outside the pleadings, hence, crossmotions for summary judgment. SeeRule 56, Federal Rules of Civil Procedure. We find no error in the judgment thus entered.

Affirmed.

**********

*Honorable Samuel P. King, United States District Court Judge, District of Hawaii, sitting by designation of the Secretary of the Interior.

**Honorable Phillip C. Wilkins, United States District Court Judge, Northern District of California, sitting by designation of the Secretary of the Interior.

In re Matai Title “Tuiolesega”,


IN THE MATTER OF THE REGISTRATION OF THE MATAI TITLE
TUIOLESEGA, OLOSEGA VILLAGE, MANU'ATELE DISTRICT

High Court of American Samoa
Land and Titles Division

MT No. 17-79

September 23, 1980

__________

Court is not bound by Federal Rules of Civil Procedure in cases involving title to land or Matai title disputes and therefore findings of facts and conclusions of law are not required. Grounds for disqualification of judges must be affirmatively shown in a timely fashion in order to provide an appealable issue.

MURPHY, Associate Justice.

This cause came on regularly for trial with six candidates seeking the title of Tuiolosega. Candidate Tupuola L. Pa'u was chosen by the associate judges using the criteria established in 1 ASC 757, and an order and certification were issued in accordance therewith. The five other candidates have made motions for new trial stating various grounds. Some of the grounds made by counsel are without merit; we comment briefly on the others.

Several candidates move this Court for a new trial because we did state specifically our findings of fact and conclusions of law in our certification and order filed June 20, 1980.

In cases involving matai titles and titles to land, this Court is not governed by the Federal Rules of Civil Procedure, and need not issue findings and conclusions. See 5 ASC 412. Secondly, the parties did not request findings and conclusions prior to trial, and in fact did not request them until now, when they complain that the court did not provide them. Third, should we specify in our certifications and orders why certain candidates were not chosen, we would in a sense be issuing negative findings. We have already decided negative findings of fact are not required. M-C International v. Island Pacific Agencies, Inc., CA No. (August 7, 1980); Schilling v. Schwitzer (DC Cir. 1944) 142 F.2d 82; Cohen v. Globe Indemnity Co. (E.D. Pa. 1941) 48 F.Supp 1. And fourth, an objection to the form of the judgment, even if well taken, does not constitute grounds for a new trial.

It has been suggested in one motion for a new trial that two of the [1ASR2d38] judges are "very close relatives" of the winning candidate, and counsel requested and was given time to propound written interrogatories to the judges in question. The answers to these interrogatories have been filed, and as can been seen from the answers, the judges are either not related to the winning candidate, or if by some chance they are, neither of them know what that relation is.

We note that the adult population of American Samoa is approximately 9,000 people, and that a high percentage of the families in American Samoa have been here since time immemorial. Given the small adult population, and until recent years the limited amount of travel, the number of cases in which one or more judges or their wives may be related in some remote degree to a candidate in matai title cases is statistically significant.

We note also that at the beginning of this trial counsel for one candidate requested and was given an opportunity to ask each member of the Court if he was related to any of the candidates, and each judge said he believed he was not. Not one objected at that time, and all were given the opportunity to do so. In accord with this decision is Iosia v. Heirs of Lemeanai, 3 ASR 482(1954) .In that case, then Chief Justice Morrow said:

...If Iosia had any objection to Judge Noa's sitting in the case, he
should have voiced it when the case came on for hearing, and not
waited until after the case was decided. In other words, he should
not have gambled on winning his case and then, after learning that
the decree went against him, complain that the associate judge was
ineligible to sit. Id. at 486.

Even if it had turned-out that some of the judges in the case or their wives had been distantly related to one of the candidates or their wives, that would not have been sufficient to disqualify a judge. 5 ASC 207 governs disqualification of judges in this Territory:

(a) No judge shall sit in any case in which he, or a family of which
he is a member, has a substantial interest, or in which he has been
counsel, is or has been a material witness, or is a member of the
same family with any party to the case.

There being no such showing in this case, this is not an adequate ground to grant the motion for new trial.

We have read Sauafea v. Filipo (1949) 2 ASR 477, an earlier case also written by Justice Morrow in which he reached an opposite conclusion. That decision was based on Wiedemann v. Wiedemann (Minn. 1949) 36 N.W. 2d 810, which we distinguish on its facts from this case on two points. First, in Minnesota it seems, there are alway [sic] other judges available, where as here, four judges out of a total of six heard this case. Second, in Wiedemann, there apparently were circumstances which gave a bona fide appearance of bias to the litigants. We find no such bias in this case.

There being no ground on which to grant a new trial, IT IS ORDERED that the five motions for new trial in this case be and hereby are denied.

**********

In re Matai Title “Maga”,


IN THE MATTER OF THE REGISTRATION OF THE
MATAI TITLE "MAGA" OF THE VILLAGE OF MASEFAU,
TUTUILA, AMERICAN SAMOA

High Court of American Samoa
Land and Titles Division

MT No. 04-79

September 29, 1980

__________

Only in rare and equitable circumstances will court allow intervention in Matai title case by candidate who did not timely proceed before the territorial registrar.

MIYAMOTO, Chief Justice.

INTRODUCTION

This motion concerns whether a contender for a matai title may be joined as a candidate despite his failure to comply with the 60 day counterclaim filing provisions.

At all times relevant Movant was on active duty in the military. Although the Territorial Registrar posted notice of the filing of claim to the matai title in question in accordance with 1 ASC 754, Movant did not file an objection or counterclaim during the 60 day period as provided for in 1 ASC 755. Despite his failure to file a counterclaim, Movant now moves this Court to allow him to be included as a candidate for the matai title. This motion was entertained September 5th, 1980, both written and oral arguments were considered, and this motion was taken under submission. We now render our opinion and ruling.

OPINION

Asofa'afetai A. Maga, a qualified candidate, has agreed to relinquish his candidacy provided Movant may be substituted in his stead. Thus, the issue before us is whether a title contender, who has not complied with the counterclaim filing requirements, can be substituted for an agreeing candidate, who has complied. The present statutes do not expressly address the matter of substitution, nor does the dearth of reasoning in the substitution cases cited afford us much guidance [footnote omitted].

We look first to the pertinent statutory provisions. Pursuant to 1 ASC 753, if one claims succession to a matai title, then he must file a written claim with the Territorial Registrar. The Territorial Registrar then posts notice of the claim, and for a 60 day period objections and counterclaims may be filed. 1 ASC 755(a) expressly states that "The Territorial Registrar shall not accept any counterclaims or objections filed after the 60th day..." The manifest intent of this language is that at some definitive point in time all candidates and objectors can be ascertained so that the dispute may proceed to a timely resolution. The legislature has selected that point in time to be the 60th day after the notice is posted pursuant to 1 ASC 754. Initially it appears that strict compliance with the counterclaim filing provisions, that is, filing of the counterclaim within the 60 day period, is an essential procedural predicate to candidacy for the disputed title. Indeed there are sound reasons for establishing a definitive point in time when candidacy must be closed. The unrest occurring within a leaderless family fosters the interest in expedient resolution of title disputes. As long as the doors to candidacy remain open [1ASR2d40] neither the Office of Samoan Affairs, nor the Court, can appropriately proceed toward final resolution. Nevertheless, we do not find that strict compliance with the 60 day claim filing provisions is an absolute requisite to candidacy. 5 ASC 412(b) provides in pertinent part:

In any matter of practice of procedure not provided for, or where the
strict compliance with any rule of practice or procedure may be inequitable
or inconvenient, the land and titles division may act in each case in such
manner as it considers to be most consistent with natural justice and
convenience.

Consequently, we hold that failure to comply with the 60 day claim filing provisions precludes candidacy for matai title succession unless there are overriding considerations of equity or convenience. Before addressing the equitable and convenience consideration in this case , we pause to address the issue of substitution.

As mentioned, the statutes do not expressly address substitution. In this legislative lacuna, as provided for in 5 ASC 412(b), the Court "may act...in such manner as it considers to be most consistent "with natural justice and convenience." A black letter rule endorsing substitution would not only lead to uncertainties impairing expedient resolution of title disputes, but may, in some circumstances, militate against the notions of natural justice and convenience. We hold that substitution alone is not a viable avenue of attaining candidacy. If a contender desires to relinquish his candidacy, he may do so. If another contender, who has failed to properly establish his candidacy desires to become a candidate, then the Court should allow or disallow him to be a candidate based on equitable and convenience considerations in the field of natural justice. Substitution may be one aspect to consider, but standing naked and alone it is not sufficient.

Turning now to the equitable and convenience consideration, we find, at the outset, that Asofa'afetai A. Maga's agreement to substitution is of little weight. Although it would result in one less candidate and perhaps a shorter trial and more expedient resolution, the benefits are of slight consequence.

We are cognizant of the welter of correspondence between Movant and members of the Court staff. Movant repeatedly and vigorously asserted his right to succession. This correspondence initiated some four years ago and continued during the removal adjudication of the previous title holder and the initial stages of the succession dispute now before this Court. There is no indication that correspondence with the Territorial Registrar was conducted. There is no indication that misstatements or misrepresentation regarding the status of the title or the requisites for candidacy status were ever made by the Territorial Registrar or the members of the Court staff to the Movant. We recognize that because Movant was on active duty in the military service and off-island, he may not have had direct personal knowledge of the notice posted and direct access to the Territorial Registrar. To that extent Movant was subject to some inconvenience. On the other hand, we note the significant role of the title holder in the Samoan custom, the monumental esteem accompanying the title, the fervor with whichs succession matters are pursued, and the concomitant general famillarity of ranking Samoans with the qualifications for succession: Furthermore, the dragging on of this case should be discouraged. Jousting contenders should not, in the final stages of combat, be confronted with a new foe. In balancing all factors we find that the interposition of Movant at this stage of the proceedings would be inconvenient for the other candidates. Movant, [1ASR2d41] who claims to be the most qualified to hold the title, should have been aware of the procedural requisites for candidacy standing. Movant was not mislead nor misinformed by the Court staff nor the Territorial Registrar, nor any other candidate. The equities do not favor Movant's position.

As stated, Movant was on active military duty at all relevant times. Via his correspondence, Movant has adequately applied to his Court for a stay of proceedings under the Soldiers' and Sailors' Civil Relief Act of 1940. (1) The Act is applicable in American Samoa. (2) The Act provides for the suspension of legal proceedings which may prejudice the civil rights of persons in the armed forces. (3) The Act specifically provides for a stay of proceedings "unless, in the opinion of the Court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service." (4) However, this provision only applies where the military person is involved in the Court proceeding: "either the plaintiff or defendant." (5) As hereinabove determine, Movant is not entitled to be a candidate in this action. Hence, Movant is not involved in this action as plaintiff or defendant. Furthermore, because Movant is not entitled to be a candidate, we find that the resolution of this title succession matter will not materially affect any rights of Movant.

RULING

The motion to allow Misiuaita A. Maga to be a candidate is denied.

**********

1. 50 USCA section 501 et seq.

2. 50 USCA section 512.

3. 50 USCA section 510.

4. 50 USCA section 521.

5. 50 USCA section 521.

Immigration Bd.; Yamazaki v.


">

HARUO YAMAZAKI, Appellant,

v.

IMMIGRATION BOARD OF AMERICAN SAMOA, Appellee.

High Court of American Samoa 
Appellate Division

AP No. 14-79

April 16, 1980

__________

Lawful immigration board quorum requires presence of sufficient number of persons specified in statute, and members may not delegate authority to sit on board in abscence of statute to that effect.

Before MURPHY, Associate Justice, presiding, SCHWARTZ*, Acting Associate Justice, SHRIVER**, Acting Associate Justice, POUTOA, Associate [1ASR2d9] Judge, and SEVA'AETASI, Associate Judge.

PER CURIAM.

Petitioner was charged with violation of 9 ASC 10 and 208(b) by failing to give information or notice of a change of address and by becoming employed without the approval of the Immigration Board of American Samoa. After a hearing on these issues, the Immigration Board of American Samoa (sometimes herein after the Board) ruled that Petitioner should be deported from this territory. Prior to the deportation, Petitioner sought and received an order staying deportation. There was a factual dispute as to whether or not the office of the Attorney General had notice of the stay order and Petitioner was deported. At a prior hearing before this Court, the Government of American Samoa (sometimes hereinafter the Government) was ordered to permit the re-entry of the petitioner giving him the immigration status he held as of the date of the stay order. The issues presented are: was the Board properly constituted; did it have the quorum required to hold a hearing; and can the Petitioner be deported under the facts of this case. Because of our resolution of the first two issues, we need not address the third. The applicable Sections of Title 9 [now ASCA sections 41.0505 and 41.0506], American Samoa Code are quoted here in full:

"Section 261. Creation, composition, chairman. There is hereby created the immigration board of American Samoa, consisting of the Attorney General, the chief immigration officer, the President of the Senate, the Speaker of the House of Representatives, and the Secretary of Samoan Affairs. The board shall elect its own chairman at its first meeting each year.

"Section 262. Meetings, quorum, vote. The board shall meet at times and places determined necessary by the chairman for conducting business of the board. The presence of at least three members shall be necessary to constitute a quorum and a vote of the majority will be required to decide any issue. All members of the board including the chairman shall be entitled to one vote."

One other statute is useful in analyzing this case. Title 3, American Samoa Code, section 14 (delegation of executive authority):

Authority but not the responsibility vested in the Governor or any other persons in the executive branch of the Government of American Samoa may be delegated by that person to other officers and employees of the executive branch (as amended in 1977).

Respondent argues that the topic of Immigration law in American Spmoa is an important topic and should not be treated lightly. We are of the same belief and judging from the blue ribbon panel established under 9 ASC 261, it appears that the Fono feels similarly. The members of the Fono were very explicit as to who would be the members of the Board, how many there would be, and how many would constitute a quorum. The Fono is aware that a statute is necessary if any officials of the Government are to be permitted to delegate their powers, 3 ASC 14, which permits the delegation of powers for the executive branch of the Government was placed in the 1961 version of the American Samoa Code and amended as recently as 1977. Knowing the Fono has given only the Executive Branch the power to delegate authorty, we [1 ASR2d 10] compare the members of the Petitioner's Board to the board required by law.

Page 1 of the transcript of the Petitioner's hearing before the Board indicates the following people were present: Chief Fealofani, representing the Secretary of Samoan Affairs, Senator Fa'amausili of the Senate, Representative Frank Reed of the House of Representatives, Chief Immigration Officer So'oso'o Tuiolemotu, Acting Chairman Aviata Fa'alevao, Reporter Miss Tia Aitaoto, counsel for the Petitioner and the Petitioner. Petitioner requested that Mr. Aviata fa'alevao and Chief Immigration Officer So'oso'o Tuiolemotu disqualify themselves from hearing Petitioner's case because they were directly involved in the prosecution of the criminal case against Petitioner. This was agreed to by the board. This action left Chief Fealofani, representing the Secretary of Samoan Affairs, Senator Fa'amausili of the Senate, and Representative Frank Reed of the House of Representatives. Respondent admits that Senator Fa'amausili is not the President of the Senate and that Frank Reed is not the Speaker of the House of Representatives.

Although there was no proof submitted as to this delegation it is possible under 3 ASC 14, that if the Secretary of Samoan Affairs delegated his authority to sit on the Board to Chief Fealofani, then Chief Fealofani would be one member of three required for a quorum by 9 ASC 262. There being no statute permitting delegation of authority for members of the Legislative Branch of the Government, and neither the President of the Senate nor the Speaker of the House being present, we find no quorum present. Without a quorum, the action taken by the people hearing Petitioner's case can be of no effect.

We hold that a person is entitled to due process of law before he can be deported from American Samoa. Because Petitioner did not receive a hearing before a Board constituted as required by statute, we find that Petitioner was deprived of the due process of law to which he was entitled.

IT IS ORDERED that the Order of the Immigration Board of American Samoa dated August 22, 1979, and directed towards Haruo Yamazaki be and hereby is vacated.

IT IS FURTHER ORDERED that Haruo Yamazaki is hereby restored to the immigration status that he held as of August 21, 1979.

**********

*Honorable Edward J. Schwartz, Chief United States District Court Judge, Southern District of California, sitting by designation of the Secretary of the Department of the Interior.

**Honorable Paul D. Shriver , United States District Court Judge , Retired, Territory of Guam, sitting by designation of the Secretary of the Department of the Interior.


Hi v. Coleman,


YOUNG HI AND JANE WOO, Petitioners,

v.

PETER TALI COLEMAN, COMMISSIONER OF REVENUE, 
AMERICAN SAMOA GOVERNMENT, Respondents.

High Court of American Samoa 
Trial Division

CA No. 83-79

July 30, 1980

__________

Rule providing for admission to tax court of persons who have demonstrated expertise b,y examination does not entitle person not so admitted to represent clients before High Court of American Samoa on matters of taxation.

MURPHY, Associate Justice. [1ASR2d36]

Petitioners , through their counsel, have moved this Court to permit Mr. J.P. King, a resident of American Samoa, to practice law before the High Court of American Samoa when that Court sits as a tax court. Because there was no proof of service in the Court's file, the Court: served a copy of the motion on Respondent and requested a response. That response was filed shortly thereafter. For the reasons given below, we deny Petitioners' motion.

Admissions to the American Samoa Bar Association are governed by Rules of Admission and Practice of Attorneys before the High Court of Samoa, promulgated by then Chief Justice, McKnight on May 1, 1974, as they have been amended. However, we have previously held that we sit as a tax court in this case, and we have applied the Tax Court Rules of Practice throughout. That being so, and because Petitioners only seek to have Mr. King admitted to practice before the High Court when it sits as a tax court, Petitioners rightfully direct us to Rule 200 of those rules. Mr. King is not an attorney at law, so subsection (a)(3) entitled "Other Applicants" is applicable. We quote a portion here for ease of reference.

(3) Other Applicants. An applicant, not an attorney at law, must file 
with the Admissions Clerk a completed application accompanied by 
a fee of $10. In addition, such an applicant, as a condition of being 
admitted to practice, must give evidence of his qualifications satisfactory 
to the Court by means of a written examination given by the Court, and 
the Court may require such person, in addition, to give similar evidence 
by means of an oral examination....

While there may be"very few, if any, attorneys who are as knowledgeable as Mr. King in this area of practice" (Petitioners' Motion for Practice, filed July 11, 1980, page 1), it seems to us that the proper approach for Mr. King to be admitted would be to provide the Clerk of the High Court with some form of documentation showing his admittance practice before the U.S. Tax Court. Upon such application, and with approval of the Chief Justice, any person, including Mr. King, probably be admitted. The reason we chose to adopt this rule without some form of restriction on who may practice before this court, lay persons not skilled in the rules of the Court, the tax laws, or the rules of evidence, could retain a client and through some inadvertently mistake or because of lack of knowledge, lose an otherwise valid claim for the client.

This is not to say, however, Mr. King cannot assist counsel for Petitioners in the preparation of their case. Canon 3 of the American Bar Association's Code of Professional Responsibility , "A lawyer should assist in Preventing the Unauthorized Practice Law," [sic] does not require a lawyer to do all his work himself. In fact, ethical consideration (EC) 3-6 permits the lawyer to delegate certain tasks in an effort: to render legal service more economically and efficiently. In part EC 3-6 reads:

EC 3-6. A lawyer often delegates tasks to clerks, secretaries and 
other lay persons. Such delegation is proper if the lawyer maintains 
a direct relationship with his client, supervises the delegated work, 
and has complete professional responsibility for the work product...

ABA Opinion 316 ( 1967) further defined this relationship :

A lawyer cane employ lay secretaries, lay investigators , lay detectives, 
lay researchers, accountants, lay scriveners nonlawyer draftsmen or 
nonlawyer researchers. In fact, he may employ nonlawyers to do 
any task for [1ASR2d37] him except counsel clients about law matters, 
engage directly in the practice of law, appear in court or appear in formal 
proceedings a part of the judicial process, so long as it is he who takes 
the work and vouches for it to the client and becomes responsible to 
the client.

Petitioners having not provided, sufficient evidence as to the qualifications of Mr. King, and Mr. King presently not being a member of the American Samoa Bar Association, Petitioners' motion is denied.

**********

Gobrait v. American Hotels, Inc.,


FLETTERS L. GOBRAIT, JR., and 
FLETTERS L. GOBRAIT, Plaintiffs,

v.

AMERICANA HOTELS, INC., et al., Defendants.

High Court of American Samoa 
Trial Division

CA No. 12-78

November 2, 1978

__________

Tort claim against government is jurisdictionally deficient until it has been presented to the Attorney General as required by statute. Trial by jury in a civil case is not constitutionally mandated and any change in court rule would be prospective only.

MIYAMOTO, Acting Chief Justice.

Fletters L. Gobrait, Jr., suffered cervical injuries at the Rainmaker Hotel swimming pool on August 23, 1975. He and his father filed this tort complaint over two years later, on February 21, 1978. The governmental defendants (Government of American Samoa, American Samoa Development Corporation, and LBJ Tropical Medical Center) promptly moved to dismiss the complaint as to them on March 8, 1978, on the grounds that plaintiffs had failed to comply with the requirements of the Government Tort Liability Act (11 ASC 7281 et. seq.). Basically, the Act provides that a tort action may not be instituted against governmental entities unless and until a claim has been presented to the Attorney General of American Samoa and the "claim shall have been finally denied by the Attorney General in writing..." or six months have passed without a final disposition of the claim. 11 ASC 7285(a).

After the Attorney General noticed this motion on behalf of the governmental defendants, plaintiffs filed a claim with the Attorney General on March 29, 1978. (1) The record is silent concerning any action on this claim, but it appears that six months have passed without there being a final disposition of the claim, and so, at plaintiffs' option, it can be deemed denied by operation of law. Nevertheless, the complaint, when filed, was jurisdictionally deficient for failure to exhaust administrative remedies. 11 ASC 7285(a); see also 28 USC 2675(a). The identical provisions in the Federal Tort Claims Act have been held numerous times to be mandatory, and any action instituted without a prior claim on the appropriate government official must be dismissed. Blain v. United States (9th Cir. 1977) 552 F.2d 289; see 28 USC 2675, n. 1. Plaintiffs have never moved to amend their complaint nor have they filed supplemental pleadings [1ASR2d2]setting forth compliance with the Government Tort Liability Act, and so the governmental defendants' motion to dismiss the complaint as to them is granted.

Plaintiffs have requested a jury trial (2) in spite of rule 3, High Court Rules, which provides that references in the federal rules concerning jury trials are inapplicable to this court. Essentially, plaintiffs are asking this court to change that rule so that there will be a right to a jury trial in civil cases. They concede that there is no federal constitutional right to a civil jury trial in state or territorial courts under the Seventh and Fourteenth Amendments. Although in criminal cases the right to trial by jury embodied in the Sixth Amendment has been held to apply to the states under the due process clause of the Fourteenth Amendment (Duncan v. Louisiana (1968) 391 U.S. 145, 149), no court has held that the federal right to a civil jury trial found in the Seventh Amendment is a necessary component of due Process, at least under the federal constitution. In fact, a long line of cases has held the opposite. Edwards v. Elliot (1874) 88 U.S. 532; accord, Pearson v.Yewdall (1877) 95 U.S. 294.) The Supreme Court has also stated that the federal right to trial by jury in civil cases does not apply to unincorporated territories' courts. Puerto Rico v. Shell Oil Co. (1937) 302 U.S. 253, 258.

But plaintiffs argue that the due process clause of the American Samoa Constitution (Art. 1, sec. 2) should be interpreted to require civil jury trials. Using the test discussed by the United States Supreme Court in Duncan v. Louisjana, supra, 391 U.S. at 149, namely, is the right to a jury trial in civil cases "basic in our system of jurisprudence" or is it "a fundamental right, essential to a fair trial," it can be seen that the use of a jury is not essential to a fair fact-finding process in civil trials. As noted inMcKeiver v. Pennsylvania (1971) 403 U.S. 528, 543, which refused to require jury trials in juvenile cases, "...one cannot say that in our legal system the jury is a necessary component of accurate fact-finding. There is much to be said for it, to be sure, but we have been content to pursue other ways for determining facts. Juries are not required, and have not been, for example, in equity cases, in workmen's compensation, in probate, or in deportation cases. Neither have they been generally used in military trials.

Although there is no requirement under current law that there be civil jury trials, the Chief Justice, pursuant to his rule-making and supervisory powers (5 ASC 202(c)), may promulgate rules to provide for a right to civil jury trials in the future in certain classes of actions, as has already been done in criminal cases. The matter is being considered by the Acting Chief Justice, but any rules to be promulgated to allow for civil jury trials would be prospective only and would not apply to this case.

The motion of the governmental defendants to dismiss the complaint against them is granted without prejudice to refile a proper complaint; plaintiffs' motion for a jury trial is denied.

____________________

1. Some months previously plaintiffs had filed a claim with the Secretary of the Interior, purportedly pursuant to the Federal Tort Claims Act (see 28 USC section 2671 et. seq.), but that act is inapplicable here in light of the existence of a virtually identical act in this jurisdiction.

2. This request is now moot as to the governmental defendants because the complaint against them will be dismissed, but it must still be considered as to the remaining defendants.

French v. Fa'alevao,


THOMAS A. FRENCH, Petitioner,

v.

AVIATA FA'ALEVAO IN HIS CAPACITY AS CHAIRMAN 
OF THE IMMIGRATION BOARD, Respondent.

High Court of American Samoa
Appellate Division

AP No. 35-80

November 25, 1980

__________

Approach to question whether administrative decision is final and therefore appealable is essentially pragmatic concern for just, speedy, and inexpensive determination of every action.

Determination that person is United States citizen precludes deportation or exclusion inquiry by immigration board.

Before SHRIVER*, Acting Associate Justice, presiding, MURPHY, Associate Justice, McNICHOLS**, Acting Associate Justice, POUTOA, Associate Judge, and SEVAAETASI, Associate Judge.

PER CURIAM.

This matter comes before us upon a most confused record. It appears to be an appeal under 9 ASC 552 from a decision of the Immigration Board of American Samoa. We are able to glean the following facts from the documents filed in this case:

Thomas French is a U.S. citizen who came to American Samoa with his wife. His wife is employed under contract with the American Samoa Government and her contract prohibits her from engaging in business in this territory during its term. Mr. French is a marine mechanic. He joined another man in a motor repair business. When the other man decided to drop out Mr. French applied Ito the American Samoa Government for a business license under 12 ASC 1346, (1)apparently to continue the business on his own. His application was favorably endorsed by the Territorial Planning Commission of American Samoa (Commission). The application then went to the Immigration Board who disapproved it on two grounds: The provision discussed above in his wife's contract, and the existence of other similar businesses presently operating here.

The Immigration Board took the additional step of directing or ordering Mr. French to leave this territory. Presumably, if he did leave, it would be without his wife, since her contract requires her to remain until at least August 12, 1981. The constitutional and public policy questions thereby raised by this result are intriguing and perhaps someday will need to be addressed. Curiously, the order to deport tells Mr. French he must leave within "________"days. [1ASR2d45]

The Government has moved to dismiss this appeal since it was not filed within 15 days as provided in 9 ASC 552. The Government contends this requirement is jurisdictional; the appellant contends it is discretionary. This point is interesting, but need not be ruled upon since we find the order or orders entered by the Immigration Board are not final orders. The Federal courts, including the U.S. Supreme Court have adopted essentially practical tests for identifying those judgments which are, and those which are not, to be considered "final." A pragmatic approach to the question of what is a final judgment being essential to the achievement of the just, speedy, and inexpensive determination of every action. Brown Shoe Co. v. U.S., 370 U.S. 294, 306 (1962). Applying that standard to this case, we note the granting of rehearings and the re-issuing of orders of the Board after meetings between Appellant and the Chairman of the Board, and we find it impossible for anyone to tell exactly which order is supposed to be the final, and therefore appealable, order.

As previously stated, in the matter of business license applications it appears that it would be proper to determine the immigration status of an applicant. The Immigration Board found that he is. an American citizen, legally in this territory. That is all it needed to do. The wisdom of the issuance of a business license is more appropriately within the province of the Planning Commission. There is no showing that French is a person to be excluded and subject to deportation under 9 ASC 377.

**********

* Honorable Paul D. Shriver, United States District Court Judge, Retired, Territory of Guam, sitting by designation of the Secretary of the Department of the Interior.

**Honorable Ray McNichols, United States District Court Judge, District of Idaho, sitting by designation of the Secretary of the Department of the Interior.

1That section presupposes license applications going to the Governor, who refers the application to the Territorial Planning Commission, which then refers the matter back to the Governor. Just how the Immigration Board gets into the pi.cture, let alone, apparently, makes the final decision as to who gets a business license is unclear.

Foma'i; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

FOMA'I, et al., Defendants.

High Court of American Samoa 
Trial Division

CR No. 72-82
CR No. 73-82
CR No. 75-82
CR No. 76-82
CR No. 77-82
CR No. 78-82
CR No. 79-82

December 3, 1982

__________

Provision in American Samoa constitution that requires exclusion of evidence does not entitle Defendant to litigate fourth amendment claim before magistrate as well as trial court.

GARDNER, Chief Justice.

MOTION TO DISMISS THE INFORMATION

The basis for the motion was that the magistrate erred under Rule 5.1 of the Rules of the Criminal Procedures of American Samoa in refusing to consider defendant's motion to suppress under Fourth Amendment grounds. That section provides: "Objections to the evidence on the ground that it was [1ASR2d62] acquired by unlawful means are not properly made at the preliminary examination. Motion to suppress must be made to the High Court..."

This Rule of course, is simply an adoption of the Federal Rule as set forth in the Federal Rules of Criminal Procedures, Rule 5.1. This rule has never ben a subject of a direct attack, but has been approved, albeit obliquely, in a series of cases. See Giordenello v. U.S., 357 U.S. 480;Costello v. U.S., 350 U.S. 359; U.S. v. Blue, 384 U.S. 251.

However; the defendants contend that American Samoa has a peculiar situation which would distinguish it from the Federal Rule since the Exclusionary Rule here exists by constitutional mandate and is not court imposed as in the Federal system.

Section 5 of the American Samoa Revised Constitution, after setting forth the provisions of the Fourth Amendment of the United States Constitution provides: "Evidence obtained in violation of this section shall not be admitted in any court." As indicated, it is the defendants' contention that since the Federal Exclusionary Rule is court mandated and the American Samoa Rule is expressly set forth "in the constitution, the approval by the courts of the Federal Rule has no application and that under this constitutional mandate, they were entitled to press their Fourth Amendment claims in the District Court. They contend that the District Court is a"court," and therefore they have a right under this section to present and litigate their Fourth Amendment contentions in that court as well as in this court. Thus, they demand two bites of the apple, one before the magistrate and one before the High Court. While this procedure is approved by statute in some state jurisdictions, we decline to apply it to this jurisdiction under some kind of constitutional interpretation ploy. Insofar as this argument is concerned, we are singularly unimpressed and equally unpersuaded.

A constitution is not a document etched in steel. It is a flexible, vital living document drafted for the operation and perpetuation of government and able to accommodate itself to changes in the lives of those who must live under it. A constitution is designed to meet new conditions that may arise in the progress of a community. It must be interpreted in such a flexible way as to bring it in accord with the public interest. Ullman v. U.S., 350 U.S. 422. Such is the history of the United States Constitution. For example:

The first amendment prohibits any abridgment of the freedom "of speech. This is in absolute terms, yet one only has to remember the words of Justice Holmes that that amendment gives no one the right to shout "fire"' in a crowded theater. Additionally, assaultive language and pornography are subject to control in spite of the seemingly absolute language of the amendment.

So too, the right of the people to bear arms (amendment II) is being infringed daily and no one contends that this is a violation of the constitution.

The Fifth Amendment provides that noone shall be held to answer for a serious crime except upon a presentation or indictment of a grand jury. obviously, this seemingly absolute command is nothing of the kind. Perhaps 90 percent of all criminal prosecutions in the United States are by the complaint-preliminary information manner. As a matter of fact, as we all know, there is no such thing as a grand jury in American Samoa and if Article 5 were to be applied, literally, a criminal could never be tried here. (See American Samoa v.Willis, 1 ASR 675.)

We point out these rather obvious items because they reflect the concept that a constitution, to exist throughout the years and centuries, [1ASR2d63] must be able to adapt itself to contemporary situations and must be interpreted in a flexible way for the reasonably efficient operation of the community.

The fact that this language appears in this constitution as contrasted with the existence of the Exclusionary Rule by court fiat is, in our opinion, immaterial.

The United States Supreme Court has long since held that the Exclusionary Rule need not cover all proceedings or all persons. "As with any remedial device, the application of the Rule has ben restricted to those areas where its remedial objectives are thought most efficaciously served." U.S. v. Calandra, 94 S.Ct. 613, 620. In dealing with grand jury proceedings, the court held that an extension of the Exclusionary Rule would seriously impede the grand jury. "Because the grand jury does not finally adjudicate guilt or innocense, it has traditionally been allowed to pursue its investigative and accusatorial functions unimpeded by the evidentiary and procedural restrictions applicable to a .criminal. Permitting witnesses to invoke the Exclusionary Rule before a grand jury would precipitate adjudications of issues hitherto reserved for trial on the merits and would delay and disrupt grand jury proceedings. Suppression hearings would halt the orderly progress of an investigation and might necessitate extended litigation of issues only tangentially related to the grand jury's primary objective." U.S. v. Calandra, 94 S.Ct. 613, 620. The court went on to explain that while suppression might be an important method of effectuating the Fourth Amendment, it does not follow that the Fourth Amendment requires adoption of every proposal that might deter police misconduct. The court felt that it would be unrealistic to assume that application of the Exclusionary Rule to grand jury proceedings would significantly further the goal of that rule.

Calandra dealt with the grand jury. As far as we are concerned, the rationale of Calandrais equally applicable to preliminary proceedings before a magistrate. We see nothing to be obtained by imposing the Exclusionary Rule on those proceedings. This would do nothing to deter illegal police conduct and would seriously impair the magistrate's ability to carry out his responsibilities in winnowing out needless prosecutions and seeing to it that only those against whom the prosecution could show probable cause be brought to trial.

A magistrate does not sit as a tribunal which is empowered to conduct a trial. The District Court may, as a District Court, conduct trials of misdemeanors and certain civil matters. However, when the District Court Judge becomes a magistrate for the purpose of conducting a preliminary examination, he merely decides whether or not a defendant should be held for trial. Courts have jurisdiction to try cases. A magistrate does not. A magistrate is not a court. Therefore, the word "court" in Section 5 of the American Samoa Revised Constitution does not apply to a magistrate conducting a preliminary examination. A magistrate exercises no trial jurisdiction when conducting a preliminary examination. This is not simply a matter of semantics. It is basic and fundamental. The magistrate, in short, acts as an arm of the High Court in winnowing groundless and needless cases that would otherwise appear before the High Court and ascertains that only those against whom probable cause has been shown should be held for trial. The magistrate acts as a substitute for a constitutionally mandated grand jury. The only distinction is one which inures to the benefit of the defendant inasmuch as he is allowed to cross examine witnesses at a preliminary and is not allowed to do so before a grand jury.

In short, we can find no distinction between the Exclusionary Rule as [1ASR2d64] mandated by the Supreme Court of the United States and that mandated by the Constitution of American Samoa and find no constitutional flaw in Rule 5.1, Criminal Court Rules of American Samoa. Therefore, the motion to dismiss the information will be denied.

**********

Fisher v. Fa'alevao,


DOUGLAS ALLEN FISHER AND 
JOHN FRANKLIN RHODES, Appellants,

v.

AVIATA FA'ALEVAO, Chairman of the 
Immigration Board, Appellee.

High Court of American Samoa 
Appellate Division

AP No. 40-80

December 24, 1980

__________

Court will not enforce a contested deportation order unless the record includes a statement of facts and authority upon which the immigration board relies.

MURPHY, Associate Justice.*

This cause came before the Court on an expedited hearing on November 28th,1980. Both parties were given five days to file proposed orders which the Court could then issue. Neither party has filed a proposed order and I take it upon myself to issue the following:

The Immigration Board of American Samoa is restrained from taking any further action to deport Appellants without further order of this court. The record before the Court consists of a "petition for stay pending appeal," an "order allowing voluntary departure from American Samoa," and an "Authorization to remain in American Samoa." The petition rambles and the order allowing voluntary departure makes so little sense as to be void on its face. If the American Samoa Government expects to have its orders enforced it is going to have to make findings of fact and state the authority upon which it is deporting these American Citizens which it refers to as aliens. In general, once the Board has made its findings and stated the authority under which it intends to deport any person, the individual who will be deported can then file a brief with the Appellate Division of this court stating the facts as he understands them and citing the law he believes applicable to the deportation. Without those two steps, it is impossible for any court to make a final determination of cases such as these.

If there were a hearing in this case at which notes were taken, a transcript should be filed within 60 days of this date. If no reporter was present at the hearings, or if there were no hearings in this matter, Appellee has 60 days to file findings upon which it intends to deport Appellants, and the authority upon which it relies to do so. If the Government does not file these pleadings within 60 days, it will be deemed to have reconsidered its decision to deport Appellants, and the Court will consider, ex parte, the relief prayed for in Appellant's prayer.

Upon the filing of the pleadings above, Appellants will have 21 days to file a coherent opening brief conforming to the requirements of the Rules of Practice of the High Court of American Samoa. Should such brief not be filed within the prescribed time, Appellants will be deemed to have waived their right to appeal the decision of the Immigration Board, and the Court will dissolve the restraining order presently in effect against Appellee.

**********

*Sitting alone pursuant to 5 ASC 409(d).

Fala; Fala v.


FA'AOSO MAFUA FALA, Petitioner,

v.

SOKELATI FALA, Respondent.

High Court of American Samoa 
Trial Division

DR No. 02-82

August 22, 1983

__________

Congressional response to McCarty case allows each jurisdiction to resolve issue of divisibility of military pension in divorce action in a manner consistent with local law. Presumption favoring equivalent distribution of marital assets in American Samoa pertains as well to military pension earned during the marriage.

GARDNER, Chief Justice.

By minute entry dated October 28, 1982 the parties in the above entitled matter were granted an absolute divorce. Various properties were divided among Petitioner and Respondent at that time, and an order entered in regard to child support and spousal maintenance. The court reserved ruling, however, on the division of Respondent's military pension until such time Congress shall have reacted to the decision of the United States Supreme Court in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589, (1981).

In deference to Congress and the superiority of federal law, the McCarty court held that military retirement benefits were not divisable in state courts upon the dissolution of a marriage. Congress promptly manifested a contrary intent and eventually enacted the Uniformed Services Former Spouses Protection Act. The key provision in that law is 10 USC 1408(c)(1) (Supp. 1983), which states:

Subject to the limitations in this section, a court may treat disposable 
retired or retainer pay payable to a member for pay periods beginning 
after June 25, 1981 either as property solely of the member or as 
property of the member and his spouse in accordance with the law 
of the jurisdiction of such court.

The proposition that both parties to a marriage contribute equally to the union can hardly be challenged. It has therefore been the policy of this court to divide the property acquired during a marriage equally among the spouses upon dissolution. Congress has specifically determined that the High Court of American Samoa is competent to divide a military pension under the circumstances presented by this case. 10 USC 1408(a)(1). The rule generally prevailing in community property states provides that the portion of a pension earned during the marriage is divisible when the marriage fails. A like rule now pertains in American Samoa.

It appearing that Petitioner and Respondent were married during Respondent's entire term of military service, Petitioner is entitled to one half of the pension earned if and when it becomes payable. Her entitlement shall not be affected by her remarriage, but her interest cannot be disposed of by will or any other type of transfer. 10 USC 1408(c)(2). Having determined Petitioner's entitlement, we turn now to the means by which it[1ASR2d114] may be realized. In overruling McCarty, Congress provided procedures for enforcing the substantive rights it created. Because the duration of both the marriage and the military service in this case was more than 10 years, these direct enforcement procedures are available to Petitioner. 10 USC 1408(d).Counsel is directed to 10 USC 1408(b)(1)(A). That section provides that service is effected by forwarding a copy of this order to the secretary or designated agent of the appropriate service branch. The addresses of the respective secretaries are listed in the appendix to this order. Compliance with the congressionally mandated procedures and the regulations promulgated thereunder will result in direct payment to Petitioner of that portion of the pension to which she is entitled if and when the same becomes payable to Respondent.

WHEREFORE, IT IS ORDERED that Petitioner shall receive, during her lifetime, 50% of any military pension due and payable to Respondent.

IT IS FURTHER ORDERED that Petitioner's share of the pension be paid directly by the paymaster.

**********

Esera; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT, Appellant,

v.

FA'ATOA ESERA, Appellee.

High Court of American Samoa 
Appellate Division

AP No. 38-81

March 30, 1983

__________

Family members of senior matai may not grant police permission to enter certain communal land in order to conduct a search. [1ASR2d91]

Before GARDNER, Chief Justice, KING*, Acting Associate Justice, WILKINS**, Acting Associate Justice, POUTOA, Associate Judge, and FAOA , Associate Judge.

PER CURIAM.

Police obtained permission to go upon certain communal land from the son in law of the senior matai who controlled that communal land. From there they observed marijuana plants in plain sight on Defendant's land. The question presented is whether the officers had the right to be on the land from which they made their observations. The trial court held they did not. We agree.

Under Samoan custom, the senior matai controls the use of communal land. Whether such a matai could have given the police permission to go upon that land is a question we need not answer; Clearly, the son in law of a matai has no such authority. If we place the badge of authority on a son in law, where do we stop? A fourth cousin twice removed? A matai may possibly give such permission. A member of his family cannot.

Judgment affirmed.

**********

*Honorable Samuel P. King, United States District Court Judge, Northern District of Hawaii, sitting by designation of the Secretary of the Department of the Interior.

**Honorable Phillip S. Wilkins, United States District Court Judge, District of California, sitting by designation of the Secretary of the Department of the Interior. 

Bernard v. American Samoa Gov’t,


TOLO BERNARD aka ALAPATI BERNARD, Appellant,

v.

GOVERNMENT OF AMERICAN SAMOA, Appellee.

High Court of American Samoa 
Appellate Division

AP No. 23-80

November 26, 1980

__________

Crime of trespass requires entry and intent which are present. where person passes under roof of house to view inhabitant for criminal purposes.

Before McNICHOLS*, Acting Associate Justice, presiding, MURPHY, Associate Justice, SHRIVER**, Acting Associate Justice, POUTOA, Associate Judge, and SEVAAETASI, Associate Judge. [1ASR2d46]

PER CURIAM.

The Appellant was convicted of trespass in violation of 15 ASC 1413(a). The Appellant was seen on the porch of a home peeping through a wire mesh into the house, then occupied by a woman. He fled and when captured a few minutes later was unclothed. We are of the view that by being on the porch, with eaves extending over the porch, the appellant had made an entry into the house within the meaning of the statute. In the Samoan culture, where houses are more open than would ordinarily be the case, it is considered very wrong to spy on a neighbor.

Samoa does not have a "Peeping Tom" statute to cover situations such as this. The Attorney General may wish to recommend such a statute to the Samoan legislature. 15 ASC 1413 provides:

(a) A person commits the crime of trespass if he knowingly enters 
unlawfully or knowingly remains unlawfully in a building or inhabitable 
structure or upon real property. (Emphasis supplied) 
(b) A person does not commit the crime of trespass by entering or 
remaining upon real property unless the real property is fenced or 
otherwise enclosed in a manner designed to exclude intruders or as to 
which notice against trespass is given by: 
1. actual communication to the actor, or 
2. posting in a manner reasonably likely to come to the attention of 
intruders.

We must first consider what we are not dealing with here. We are not dealing with a Samoan house open on all sides except when the weather requires closure. We are concerned here with a palagi style house with a front door which must be opened to permit entry. The evidence does not indicate that the appellant either entered or attempted to enter the house through the door. The occupant of the house at no time knew of the defendant's presence looking into the living room.

Trespass is well known to the law from the earliest days of the common law and Roman law. 87 CJS 1102. The general trespass provisions by Justice Black in Martin v. City of Struthers(1943) 319 U.S. 141, 147 (1943):

Traditionally the American law punished persons who enter onto the 
property of another after having been warned by the owner to keep 
off. General trespass after warning statutes existing at least twenty 
states while similar statutes of narrower scope are on the books of at 
least twelve states more (footnotes omitted).

The instant statute clearly requires an intent to trespass. The person charged must have entered knowingly and unlawfully.

We must now determine what "enter" means in the context of the statute. We conclude in this case that we are justified in applying the construction that the Appellant entered the house when he passed under the eaves with the criminal intent of viewing the occupant for possible sexual purposes. Ordinarily, such conduct would lead to a breach of the peace if discovered at the time. The general principle is stated in 75 Am.Jur. 2d section 87:

Criminal intent is an essential element of the statutory offense of trespass, 
even though the statute is silent as to intent, and if the act prohibited is 
committed in good faith under claim of right or color of title, although 
the accused is mistaken as to his right, unless it is committed with force 
or violence or a breach of .[1ASR2d47] the peace, no conviction will 
lie, since it will not be presumed that the legislature intended to punish 
criminal acts committed in ignorance, by accident or under claim of right, 
and in the bona fide belief that the land is the property of the trespasser, 
unless the terms of the statute forbid any other construction. A statute 
penalizing every trespass upon the property of another committed with 
a malicious and mischievous intent is not void on the ground of vagueness, 
there being no lack of notice and nothing to entrap the unwary; the 
requirement of "a malicious and mischievous intent," narrowing rather than 
broadening the scope of the offense, makes its meaning more understandable 
and clear (footnotes omitted).

The judgment of the District Court is AFFIRMED.

**********

*Honorable Ray McNichols, United States District Court Judge, District of Idaho, sitting by designation of the Secretary of the Department of the Interior.

**Honorable Paul D. Shriver , United States District Court Judge, Retired, Territory of Guam, sitting by designation of the Secretary of the Department of the Interior.

Aumua v. American Samoa Gov’t,


ATAPANA AUMUA, Appellant,

v.

GOVERNMENT OF AMERICAN SAMOA, Appellee.

High Court of American Samoa 
Appellate Division

November 21, 1980

AP No. 25-79

__________

District court lacks jurisdiction to try unsworn complaint.

Before MIYAMOTO, Chief Justice, presiding, McNICHOLS*, Acting Associate Justice, NEILSEN**, Acting Associate Justice, POUTOA, Associate Judge, and SEVA'AETASI,Associate Judge.

PER CURIAM.

This is a direct appeal from the District Court on the issue of whether the defendant in a traffic case may be tried upon an unsworn complaint. Pursuant to law, the police officers of the Government of American Samoa utilize a Uniform Traffic Ticket and Complaint which must be sworn to by the citing officer before a person authorized to administer oaths.

22 ASC 2409 (b) provides in part:

Before any offense shall be heard by the court, or any plea taken, 
there shall be filed with the clerk of the court a complaint signed 
and sworn to by a police officer of American Samoa which shall 
set forth the particulars of the alleged offense.

The law is clear. The requirement of a sworn complaint is jurisdictional. The District Court, in this case, had no jurisdiction to proceed with the trial and to sentence the Defendant.

Accordingly, the conviction of the Appellant-defendant is reversed.


**********

*Honorable Ray McNichols, United States District Court Judge, District of Idaho, sitting by designation of the Secretary of the Departemnt of the Interior.

**Honorable Leland C. Nielsen, United States District Court Judge, Southern District of California, sitting by designation of the Secretary of the Department of the Interior.

Van Camp; Siofele v.


PAPU SIOFELE et al., Plaintiffs,

v.

VAN CAMP et al., Defendants.

High Court of American Samoa
Trial Division

CA No. 62-79

October 11, 1983

__________

Foul, sickening, and noxious odors emitted by tuna cannery may form basis of tort recovery for nuisance; damages thereby occasioned for involuntary abandonment of homestead are the fair market value of similar quarters.

GARDNER, Chief Justice.

***

However, the court does find that the Defendant Starkist has committed a nuisance. By the emission of foul, sickening and noxious odors from its reduction plant it has unreasonably interfered with the full use and enjoyment by plaintiffs of their land. Mr. Gregory, with commendable loyalty to his employer, felt these odors emitted from Starkist were not dissimilar to those in a kitchen when fish are being cooked. However, the overwhelming evidence is that from time to time the odors were dreadful. Mr. Gregory had to admit that when there was a breakdown in the rendering plant the odors did become somewhat stronger. Unless one were completely bereft of his olfactory senses anyone ever exposed to that smell would have to agree. The existence of a nuisance was well established.

There was agreement by all concerned that the causes of the bad odors were frequent equipment breakdowns in the reduction plant as a result of which piles of fish residue accumulated and stank. Starkist now has plans for improvements in this phase of its operation with the replacement of [1ASR2d115] inadequate, obsolete and antiquated equipment. Starkist assured the court that these improvements will do away with the foul odors no resulting from these breakdowns. This new equipment is to be installed by December 1983 or January 1984. (1)

***

The court believes that the Plaintiffs were driven from their home by reason of these noxious odors. However, the court does not believe their testimony that they are paying a son $600 of their $1,000 monthly income as rent.

When the Plaintiffs were forced to vacate their premises by reason of these odors, it must be remembered that they left a tumble down shack. They could not then move into the Mouna Rea Hotel at $250 per day and expect the Defendant to pick up their hotel tab. They are entitled to live in similar premises. The court feels that $50.00 per month is reasonable amount of rent for similar premises. Thus, Plaintiffs are entitled to $50.00 per month for the period 1976 to 1983 for a total of $4,200.00 to the present plus $50.00 a month until the nuisance is abated.

There remains the problem of abating this continuing nuisance. Starkist has plans for improvements that they allege will cure this problem. These are to be installed by December 1983 or January 1984. The court will order that this nuisance be abated by Wednesday, February 1, 1984 or that Starkist show cause in this court on that date why injunctive relief should not be granted by way of stopping the operation of the reduction plant or taking any other steps necessary to abate this nuisance.

**********

1. It is high time Starkist does something constructive about this problem. Each year they obtain from the Government a tax exemption in which they agree to "eliminate odors to the best of their ability." If Van Camp has the ability, Starkist has too. The inaction of the Government of American Samoa during the years is puzzling.

Aufata; Te'o v.


UIVA TE'O, Appellant,

v.

FANENE FAMILY, FONOTI AUFATA, SALOFI R. SOTOA 
PEMERIKA TAUILIILI, and MOETAI LEOMITI, Appellees.

High Court of American Samoa 
Appellate Division

AP No. 13-78

February 25, 1980

__________

Term "natural justice and convenience" embraces due process of law, but procedures adopted to accommodate complex litigation which do not prejudice the opportunity of any party to be fully and effectively heard do not offend due process.

Before MURPHY, Associate Justice, presiding, SCHWARTZ*, Acting Associate Justice, SHRIVER**, Acting Associate Justice, TA'IAU, Associate Judge, and ASUELU, Associate Judge.

PER CURIAM.

This case came before the trial division of this court as a consolidation of 11 separate cases involving disputes over title to a large tract of land approximately 265 acres in area. In preparation for the trial, the court held three pre-trial conferences during which the procedure for the trial was established. This procedure was agreed to by all parties; and on October 24, 1977, what was to be a two week trial began. Appellant made a motion for a new trial on substantive and procedural grounds~ said motion being denied by the trial division. Appellant now appeals the decision of the lower court on the ground that the procedure used below denied appellant due process of law. For the reasons discussed below, the judgment of the trial court is affirmed.

Appellant claims that the procedure adopted by the trial court denied him the right to cross-examine all witnesses. Because of this Appellant argues he was deprived of a full hearing or opportunity for a full hearing and thereby denied due process of law. In support of his proposition, counsel for appellant cites several U.S. Supreme Court cases. Although they do support the broad hypothesis, they do not really address the issue at bar.

Due process of law has never been a term of fixed and invariable content (Federal Communications Commission v. WJR, The Goodwill Station, 337 U.S. 265 (1949)). Ordinarily, the courts do not attempt to define in a few words what is meant by this term, but are disposed to ascertain their intent and application by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require (Wolf v. People of the State of Colorado, 338 U.S. 25 (1949)). It is well established that a litigant who is not permitted a full hearing or opportunity for a full hearing has not been afforded due process of law. The issue presented in this case is whether or not this Appellant was deprived of an opportunity for a full hearing.

The procedural limitations section 412(b), which states in act in each case in such manner for this territory are contained in 5 ASC part, "...the Land and Titles Division may as it considers to be most consistent with[1ASR2d4] natural justice and convenience. Whether or not "natural justice and convenience" encompasses due process of law is an issue which has never been resolved by this Court.

The fifth amendment to the U.S. Constitution and Article I, Section 2 of the Revised Samoan Constitution both state that no person shall be deprived of his property without due process of law. To permit the Land and Titles Division of this court to handle each case in any manner it felt convenient would permit that court to make up its own rules as it wept along, with no discernible standard. This is particularly offensive here because the issues most frequently presented in the Land and Titles Division are issues which most affect the people of American Samoa, namely the land on which they live. To permit someone to take another's home and surrounding property without due process of law goes against the very foundation upon which both American law and natural justice are based. We hold therefore that the concept of due process of law is encompassed within the meaning of natural justice and convenience as used in 5 ASC 412(b).

The question presented then is did the procedure established by trial court afford this appellant due process of law?

In the case at bar, the trial court directed each person who claimed land within the 265 acres to file a claim with the territorial registrar. All eligible people were then given 60 days to object to all applicants' claims of land. Prior to trial, the order in which the claimants would present their cases was established. Each applicant for registration of title was permitted to present his case in chief. All persons objecting to that claim were permitted to cross-examine each witness after his direct testimony. Each applicant, when his turn came, was permitted to present his case in full, by calling all witnesses he felt necessary. Adverse witnesses could be declared hostile witnesses at the outset of the questioning if counsel deemed it necessary. Objectors with no claim were given opportunity to present their testimony also.

The crux of Appellant's argument is that he was not permitted to cross-examine certain witnesses immediately after their testimony. Procedurally, this was not permitted because Appellant had not objected to that applicant's claim of land. As noted above, counsel for Appellant was permitted to call any witnesses he felt necessary when it came time to prove his claim to the land in dispute. And in fact, he did call one of the opposing parties as a hostile witness and was permitted to cross-examine him at that time.

Having considered the briefs filed in this case, the partial transcript of the case below, and the argument of counsel, we find that the procedure followed by the trial court did not prejudice the Appellant in any way, and this procedure did not violate either the notions of convenience and natural justice, or due process of law. That being the case, the judgment of the trial court is affirmed.

**********

*Honorable Edward J. Schwartz, Chief United States District Court Judge, Southern District of California, sitting by designation of Secretary of the Department of the Interior.

**Honorable Paul D. Shriver, United States District Court Judge, Retired, Territory of Guam, sitting by designation of the Secretary of the Department of the Interior.

 

American Samoa Gov’t v. Williams,


AMERICAN SAMOA GOVERNMENT, 
Petitioner,

v.

SUAFALA SIMOA aka SUAFALA WILLIAMS, 
Respondent.

High Court of American Samoa
Trial Division

CR No. 34-81

May 13, 1983

__________

Although power to govern derives from Congress, government of American Samoa possesses characteristics of a state and local government, and may therefore prosecute felonies by information rather than indictment.

MURPHY, Associate Justice.

Petitioner was informed against at a preliminary hearing and was thereafter convicted of murder in a jury trial. He seeks release by writ of habeas corpus on the ground that he is entitled to indictment by a grand jury. On appeal, the case was remanded to determine whether indictment by grand jury would be anomalous to the culture and conditions prevailing in [1ASR2d92] American Samoa. The Court finds that grand jury proceedings would not be anomalous and will thereof consider the merits of the petition.

The Constitution bars prosecution by the United States for a capital or infamous crime except upon indictment by a grand jury (Amend. V). The states are not bound by that provision, and may subject an accused to prosecution in any manner consistent with due process and fundamental fairness. Petitioner asserts that because American Samoa is an unincorporated United States territory, rather than a state, he could not be prosecuted except upon indictment and that therefore his conviction upon charges brought by information must be reversed. Petitioner does not claim that his preliminary hearing was unfair or that it denied him due process of law.

United States sovereignty over its territories vests Congress with the powers of both a local and a national government and it can do for a territory whatever a state can do for itself or one of its political subdivisions. Cincinnati Soap Co. v. U.S., 301 U.S. 208 (1937); American Insurance Co. v. 356 Bales of Cotton, 26 U.S.511 (1828). Governance of a territory rests primarily with Congress and secondarily with such agencies as Congress may establish for that purpose. Snow v. U.S., 85 U.S. 317 (1873). The power which Congress may thus delegate, subject to subsequent revision or revocation, includes all matters which could be regulated by the laws of a state. District of Columbia v. John R. Thompson Co., 346 U.S. 100 (1953). Congress nevertheless retains all legal authority over the people of this territory and all departments of its government, and may legislate directly for the territory, abrogate its laws, void a valid act, or validate a void act. Inter-Island Steam Nav. Co. v. Territory of Hawaii, 305 U.S.306 (1938); First Nat. Bank v. Yankton County, 101 U.S. 129 (1879).

Through delegation of its authority, Congress has entrusted the governance of American Samoa with the Department of the Interior. The Department of the Interior has approved the adoption of a constitution, the formation of a local government, and the promulgation of laws for American Samoa. This approval could be rescinded at any time. The Government of American Samoa, its policies and departments, in other words, exist solely because Congress or the Department of the Interior has not yet said that they do not exist. ASCA 46.1220 is among the laws which have, by silence, been endorsed by Congress and the Department of the Interior. It provides for preliminary determinations of probable cause by information in all felony prosecutions. The procedure is fair and consistent with due process guarantees. It regulates prosecutions for violations of the American Samoa Code Annotated only and has no impact beyond the territory. It is clear that Congress or any authorized agent thereof may enact any provision in regard to a territory that could otherwise have been enacted by a state.

ASCA46.1220, providing for prosecution by information, is not unconstitutional as applied in American Samoa. The petition is dismissed.

**********

American Samoa Gov’t v. Tavili,


AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

TAVILI (aka) STUCKA, Defendant.

High Court of American Samoa 
Trial Division

CR No. 103-82

January 12, 1983

__________

Legislature proscribed possession of all species of marijuana in statute specifying Cannabis Sativa L.

GARDNER, Chief Justice.

In this case the prosecution offered evidence by way of a forensic chemist that the substance found in the possession of the defendant was Marijuana. The defendant then offered evidence by an agronomist that marijuana is Cannabis and there are three recognized types of Cannabis of which Cannabis Sativa L is but one. Then, based on the fact that 13.1001 ASCA defines Marijuana as "all parts of the plant Cannabis Sativa L.," he moved for a dismissal on the grounds that there was no proof that the substance identified by the chemist as Marijuana wasCannabis Sativa L. That motion was denied and a proposed instruction to the same effect refused. I observed that the matter had been litigated thoroughly and that the contention was without substance. However, I chose not to delay a jury trial to research the matter. Nevertheless, counsel are entitled to an explanation of the basis for the court's ruling. That explanation follows.

The phrase Cannabis Sativa L. has uniformly been held to have the same popular or common meaning as Marijuana. Some botanical taxonomists consider Marijuana a polytypical plant and recognize as many as four species of Marijuana other than Cannabis Sativa L. Others hold that Marijuana is purely monotypic in species but with several varieties. Regardless of the merits of this scientific controversy, the United States Supreme Court has flatly held that there is only one species of Marijuana. Leary v. U.S., 395 U.S. 689, 77 S.Ct. 1532 (1957). Serious constitutional Due Process and Equal Protection problems arise with any other interpretation (People v. Alstyne, 46 Ca(3) 917, 121 Cal.Rep. 363). Therefore, the proper holding is that the term Cannabis Sativa L. must be construed as a general term which includes all plants popularly known as Marijuana that contain the toxic agent THC (People v. Alstyne, supra, 46 Ca(3) 917, 121 Cal.Rep. 363; People v. Hamilton, 105 Ca(3) 117, 166 Cal.Rep. 153; People v. Spurlock, 112 Ca(3) 326, 169 Cal Rep. 320). Federal cases dealing with this subject reach the same conclusion (U.S. v. Walton, 514 F(2) 201, U.S. v. Honneus, 508 F(2) 566, and cases from other Federal circuits listed at page 155 of People v. Hamilton, supra, 166 Cal.Rep. 153).

In enacting 13.1001 ASCA the 0 Legislature intended to proscribe [1ASR2d73] possession of all species of Marijuana. The evidence of the agronomist was irrelevant and should have been objected to by the prosecution on that ground.

**********

Willis; Leuma v.


EVE LEUMA, TAVITA AVEGALIO, and
JOSEPH AVEGALIO, Plaintiffs,

v.

TONY WILLIS, Defendant.

High Court of American Samoa
Land and Titles Division

LT No. 47-79

December 16, 1980

__________

In order to maintain an action claiming individual title to real property based upon original occupancy and use, there must be present use of the land.

MURPHY, Associate Justice.

STATEMENT OF THE CASE

This action arose in 1979 when Defendant, Tony Willis, began construction of a house on a portion of the land claimed by Plaintiffs. Plaintiff Eve Leuma, Tavita Avegalio and Joseph Avegalio claim to be the individual owners of certain real property located on or near the land known as "Lega'oa." They claim that their father, Avegalio Eseese, gained individual ownership of the land by originally clearing, planting, and occupying said land. The father died in 1973 and Plaintiffs claim title by intestate succession.

Defendant Tony Willis claims he is the owner of the disputed land, that it is a portion of a much larger parcel of land he and others own, which they refer to as "Lega'oa." He does not dispute that Eseese cleared and planted on the subject property, but contends that the clearing and planting was by virtue of an oral license granted by Willis' mother, Defendant's predecessor in interest. Willis also contends that whatever interest Eseese may have had in the property has been abandoned. Willis' claim of ownership is founded entirely upon a deed referred to in a judgment entered by the High Court on May 4, 1906, To'omata v. People of Leone (CA No.5-1906), and further construed in Falesau v. Tuitele (CA No.19-1918).

Plaintiffs, inter alia, seek to restrain defendant from continuing construction of the house: Defendant seeks to enjoin Plaintiffs from use or [1ASR2d49] possession of the subject property.

FINDINGS OF FACT

Based upon the testimony and evidence presented in Trial September 16, 17, & 18, 1980, as well as an inspection of the property by the court we make the following findings of fact:

1. The subject property consists of broken land, slopes rising to ridges, and sheer cliffs. It is at the end of a large valley which runs from the sea and ends at the waterfall. No part of the property in dispute appears to be flat land of the valley; although the site for the house is level, it is considerably higher than the valley floor.

2. During the 1940's, the Government (Territorial or United States) constructed a road through the subject property to a waterfall where it constructed a catchment and a pipe system, a modification of which is still in use by the village of Leone. The area around the waterfall consists of virgin jungle, cliffs, and a stream bed which runs through Lone and into the sea.

3. At least some portions of the subject property were cleared and planted by Eseese approximately 40 years ago.

4. In 1966 most of the crops planted by Eseese were destroyed by hurricane. Since then, Plaintiffs have had little or nothing to do with the land. Some other people, with Plaintiffs' permission, have planted and harvested crops (mostly bananas) on portions of the disputed land. Some of these banana plants were destroyed by Defendant in preparing the foundation for the house.

5. Defendant began clearing and planting some portions of the subject property in 1975.

6. The Court takes judicial notice of the proceedings in 5-1906 and 19-1918.

7. None of the parties has constructed a house or lived on the subject land until 1979 when Defendant began construction.

8. Some of the plaintiffs reside in California and resided there at the time of their father's death.

OPINION

Since both parties claim individual ownership of this property, a review of the history of the concept of individual ownership in American Samoa is useful.

HISTORY OF LAND OWNERSHIP IN AMERICAN SAMOA

I. General Trends

Prior to 1899, land in American Samoa was subject to similar laws and customs as in that which is now Western Samoa, for as most readers of this opinion know, for many thousands of years, there was only one Samoa. It has only been in recent history that the people from other countries have come to the Samoan islands, exerting their foreign laws and customs on the descendants of the original inhabitants of these islands.

Of the total area of that which is now American Samoa (excluding Swain's island and the uninhabited Rose Island), or about 45,500 acres, approximately 550-600 acres were acquired by papalagis before 1889, the freehold title being confirmed by the Land Commission. (1) This land commission [1ASR2d50] s created in the Berlin Act of 1889. One of the purposes of the Berlin Act was that Samoans might "keep their lands for cultivation by themselves and by their children after them. " The Act declared that all further alienation of native lands to non-natives should be prohibited, with two exceptions- The land commission and the Apia Court heard all land matters or all u[ the Samoan Islands until 1899 when Tutuila and Manu'a islands were ceded to the United States. At that time, there was only freehold land created by the Apia Court, and native or communal land. With the cession of Tutuila and Aunu'u the High Court of American Samoa commenced hearing disputes as to title to land, and it was at this point that land law in American Samoa began diverging from land law in what is now Western Samoa.

Although not well documented, it seems that previous and present custom .n Western Samoa was not to separate title to land from a matai title. When a village was established, the land in that valley belonged to the people of hat village. A matai could claim land for his family or clan by clearing and then working. Any land that was not under the direct "pule" of a matai remained belonging to the people of the village. Paramount chiefs would ave a more general control of larger areas. It is important to keep in ind that the power of a matai was really defined not by title name, but by the land over which he had control. Through this system, ownership of land rom the mountain peak to the reef defined among the various families, villages, land districts. Under the present Western Samoa Constitution there re thre( types of Land in Western Samoa: Government, freehold, and customary (ie:communal).

II. History of Individually Owned Land in American Samoa

"Can't you stop thinking about 'owning things,' said Vai. How many
times have I told you that no one owns things in Samoa. We only 'use'
them. If we clear and plant this Land it is ours. If we stop using it someone
else can have it." Calkins, My Samoan Chief, The University Press of
Hawaii (1962), at 92.

Given the scanty number of statutes in this Territory covering the subject of alienation and title to real property, (2) the quagmire we find ourselves in presently has developed through 80 years of case law. While succession to matai titles was originally governed by custom and tradition, it was soon changed so it was determined by statute. (3) Succession to land seems to have been governed by possession and control. See Sapela v. Veeval, 1 ASR 124, 129 (1905), and Siopitu v. Faiivae, 1 ASR 138 (date unknown), in which this court was already trying to apply the common law concept [1ASR2d51] of adverse possession to the Samoan land system, the foreign concept of adverse possession being based on possession and control.

A review of these early land title cases leads us to believe that the reasoning behind the decisions was that title to native or communal land (these terms will be used synonymously throughout this opinion) was never legally bound to the matai titles. As mentioned previously. the two titles have remained in tact in Western Samoa. The Court then began securing claims to title to land by means of surveys and registration of title. See Vili v. Faiivae 1 ASR138,139 (date unknown); Maloata v. Leoso, 2 ASR 2 (1938) As lands were surveyed and registered , the remaining areas (most of the land on the island), primarily virgin forest, remained unclaimed and unregistered. We can find nothing in the cases or early statutes in which the Court recognized the superior claim of a paramount chief or the people of a village to all the lands extending from the ocean to the mountain peaks. In fact, the Court specifically rejected claims to land title made by Tuimanu'a on the grounds that the title was political. Alesana v. Siupolu (1922) 1 ASR 346. 351. This is another example of the court limiting the title to the land to the cultivator or user of the land. As we look back at these cases in general. and the Tuimanu'a case in particular, we note that the court constantly refers to English common law, Tiffiny of Real Property. Maine Ancient Law. or tries to compare the King of Manu'a to the King of England, and this was the rationale on which the Court limited land title to the cultivator or user.

In the years from the cession of the eastern Samoan islands to the United States until the beginning of World War II, the Court, unwittingly we think, laid the precedents necessary to file a claim of individual ownership by leaving virgin land unregistered and by favoring the user or cultivator in land disputes.

It is clear from early decisions that all surveyed and registered native land vested a fee in someone or something. Maloata v. Leoso,1 ASR 134, 138 (1905). But in the same case, the court also said:

It was well known custom in Samoa that the individual owner of property,
not withstanding his well established rights to it, was subject to the will of
the community and upon the commission of any act contrary to the desire
of the community he would be banished or have to submit to gross
degradation imposed by the people (underscoring added). Id. at 137.

The Court seems to be talking about some form of ownership different from the traditional papalagi concept of fee simple. Five years later, the court held:

...It would be a disastrous shock to the social system of Samoa under
which it has progressed already so far towards civilization to permit a
member of a family to withdraw entirely and grant him a fee-simple title
of land which he had previously occupied and cultivated under the
control of the head of the family. Sapela v. Mageo (1910) 1 ASR 223,
224.

And even as late as 1932 we see:

The Court does not favor the holding of large tracts of land by individual
Samoans, --it is manifestly better for the interests of all the Samoans that
land be more or less equally distributed among the respective matais in
Samoa. Satele v. Afoa, 1 ASR 467, 471 (1932). [1ASR2d52]

While in 1900 there had been only two types of land, freehold and native land, the decisions cited above unwittingly recognized two divisions of native land: native land in which a trust is imposed on the matai, and another form ut land not specifically defined, but having some of the qualities of fa'a Samoa and some of the qualities of fa'a papalagi .

World War II seems to have brought on an awareness of the potential in these decisions cited above. In Tiumalu v. Simaile (1945) 2 ASR 222, 224, the court recognized specifically the ownership of land other than freehold as personal. The presumption of individual ownership in absence of evidence of communal ownership was established in this case, as well as the right of the estate being inheritable.

In 1947, in a case involving the Defendant in this action, the court belatedly recognized problems of alienation caused by its prior decisions, and supported , a statute prohibiting alienation of land on the basis of blood. Willis v. Willis 2 ASR 276, 278-279 (1947). This decision was based on blood lines and was a departure from the court's previous decisions in which they supported those who cultivated and used the land. This departure may be reconciled because it was decendents of the first users who received the land. Also in 1947, the Court held that virgin bush cleared by a matai could be individually-owned and could be inherited. Tago v. Mauga, 2 ASR 285 (1947)

In Letele Family v. Lagoga 2 ASR 466 (1949), the Court adopted a rebuttable presumption that when a matai or his family clears bush land, he do so for the communal family. 2 ASR 466, 469. This case again focused on the use and cultivation as the key to ownership. Accord, Toomata v. Ve'a, 2 A.S.R. 564, 571 (H.C.T.D.1950); Soliai v. Levu (1949) 2 ASR 440, 442-443.

These decisions suffer from a lack of consistency. When reviewing the lot, we sence [sic] the Court was improvising decisions ad hoc to fit the equities of each case. Having established individual ownership, the court then had to prevent alienation of land to non-Samoans; thus theWillis case cited above, which upheld racial classifications for purposes of ownership. Although the 3/4 blood requirement has been modified by subsequent statutes, it remains a racial classification which controls the ownership of land in this Territory. Such a constitutionally suspicious vehicle would not be necessary if the concept of communal land had been faithfully embraced.

In 1948 Justice Morrow started defining individually-owned land by attributing certain characteristics to it. Justice Miyamoto provides an excellent collection of these cases in his opinion in Fanene v. Talio LT No. 64-77 (1977). We draw heavily on the citations in his opinion, but come to a different conclusion because of a different perception of Samoan custom.

One of the first decisions in which the words "individually-owned land" are used, is the case of Taatiatia v. Misi, 2 ASR 46 (1948), in which the Court stated that which the Defendant did to justify his claim to individual ownership of the land, and enunciated the legal basis for the conclusion he reached:

It is our conclusion from the evidence, which in some respect is conflicting,
that Misi entered upon the land in 1919 while it was bush and cut the large
trees thereon and that after letting the trees lie for a year he burned them and
proceeded to put in plantations, and that he has used the land ever since for
plantation purposes. The land being bush and not occupied by anyone was
res nullius, the property of no one. When [1ASR2d53] Misi entered upon it
and cut down the trees and put in his plantations and claimed the land as his
own, it became his in accordance with the customs of the Samoans, which
customs, when not in conflict with the laws of American Samoa or the laws
of the United States concerning American Samoa, are preserved. Sec. 2 of
the A.S. code. There is no law of American Samoa or of the United States
concerning American Samoa in conflict with the customs of the Samoans with
respect to the acquisition of title to bush land. Blackstone considered that an
original title to property was acquired by the first occupant under a claim of
ownership. II Blackstone's Commentaries, pp.8-10.See also Maine on Ancient
Law, 5th Ed. pp.242-246. With him was such an occupant. Taatiatia v. Misi
(1948) 2 ASR 346, 347.

It seems to us that Justice Morrow misstated Samoan custom (that the virgin bush belonged to no one), and then applied the law of old England (Blackstone and Maine) to a land system and culture completely different. It is no wonder he got such a result as the concept of homesteading individually-owned land. Six months later, Justice Morrow decided individually-owned land may be acquired if a matai gives it away as such. His citation of authority for this is his judicial knowledge that it has been done in the past:

...We know judicially that some matais in American Samoa have, with
the consent of their family members, given family lands outright to certain
members of their families. Taetafea testified that she was present and
heard old Gi in 1905 make a gift of this land to her and her husband and
that such gift was a reward for splendid service rendered by her husband
and herself to the then Gi; also that such gift was followed by possession
by the donees. Gi v. Taetafea, 2 ASR 401, 403 (1948).

It is hard for us to "judicially know" that the old Gi, by giving away the land "outright " intended to gi ve a fee simple, a concept we "judicially know" existed then only through a few prior decisions of Samoan courts. Maybe what the old Gi intended when he gave away the land outright was to designate that communal land for a particular family's use. From the authorities we have cited above, that seems more in keeping with the Samoan tradition than does a gift in fee.

Two weeks later, Justice Morrow stated if virgin, unclaimed land is cleared and occupied for individual benefit, the Court will find this sufficient to support a claim of individual ownership. His citations of authority for this are again Maine and Blackstone. Muli v. Ofoia 2 ASR 408, 410 (1948).

More recently, in a landmark case in individually-owned land, the Court decided portions of a large parcel of land near the airport were individually-owned. The justification for this was:

This court has ruled many times that Samoans may acquire title
to land through first occupancy accompanied by claim of ownership.
Soliai v. Lagafua, No. 5-1949 (H.C. of Am. S.); Faatiliga v. Fano,
No. 89- 1948 (H.C. of Am. S.);Gi v. Te'o, No. 35-1961 (H.C. of
Am. S.); Magalei et. al., v. Lualemaga et. al., No. 60-1961 (H.C.
of Am. S.). This doctrine of the acquisition of title by first occupancy
coupled with a claim of ownership is approved in Main's Ancient Law
(3rd Am. Ed.) 238. See also 2 Black-[1ASR2d54]stone 8. The most
common way for a Samoan to acquire title to land is to clear a portion
of the virgin bush, put in plantations on the cleared area, and claim it
as his own land or the communal land of his family. This is a recognized
way of acquiring land according to Samoan customs. Government v.
Letuli LT No.016-63 (1963).

In Haleck v. Tuia (1974) LT No.1386-74, the Court found:

The Plaintiff entered upon the land in 1947 and began to clear it and
use it. At the time of entry it was virgin bush land. That no other person
ever worked upon this land. That after viewing the property the Court
is satisfied that the plaintiff has substantially cleared the entire tract and
a considerable plantation was developed. That no objections were ever
made by anyone during the entire period from 1947 to the time of filing
the petition for registration. The Court further finds that the plaintiff went
upon the land as an individual and not under the direction of a matai; that
the work done was entirely at his individual expense, and not as a
communal effort.

Based on these findings of fact, the Court reached the following conclusion of law:

When an individual goes upon virgin bush land, clears it and develops
a plantation, using his own personal resources, and it is done without
direction of the matai of the family, and without communal family funds or
donated help of the members of the family, the property becomes the
individually owned land of the developer, and he is entitled to have the
land registered as his individually owned property.

Having reviewed these cases, in Fanene v. Talio, LT No.64-77 (1977), Justice Miyamoto described individually owned land as that land:

...(1) cleared in its entirety or substantially so from the virgin bush by an
individual through his own initiative and not by, for or under the direction
of his aiga or the senior matai, (2) cultivated in its entirety or substantially
so by him, and (3) occupied by him or his family or agents continuously
from the time of the clearing of the bush.

In trying to define individually-owned land, it would be helpful have been provided guidance by the Fono, for after all, the legislators are the elected representatives of the people, and if policy decisions are to be made which will affect all or almost all of the people, it is better to have the duly elected representatives make these decisions than it is to have judges make them as appears to have been done in the past.

Unfortunately, neither the Fono nor the preceding governors appointed by the Secretary of Interior have been of much help. The definitions of Native land and freehold land5appeared in the American Samoa Code of 1949 (4), and remain unchanged today. (5) In 1962, the legislature passed laws [1ASR2d55] recognizing the concept of individually-owned land, (6) and actually did define individually-owned land in Public Law 7-19 (1962) (7) as follows:

Sec. 9.0103 -INDIVIDUALLY OWNED LAND: Individually owned
land means land that is owned by a person in one of the first two categories
named in Sec. 9.0102 , or that is owned by an individual or individuals except
lands included in court grants prior to 1900. Such land may be conveyed only
to a person or family in the categories mentioned in Sec . 9.0102, except that
it may be inherited by devise or descent under the laws of intestate succession,
by natural lineal descendants of the owner. If no person is qualified to inherit,
the title shall revert to the family from which the title was derived.

As originally enacted, the categories of individuals referred to in Sec. 9.0102 were (1) full blood American Samoan, and (2) a person who is of at least one-half Samoan blood, was born in American Samoa, is a descendant of an American Samoan family, lives with Samoans as a Samoan, has lived in American Samoa for more than five years, and has .officially declared his home for life. (8) There is no indication that Secs. 9.0102 and 9.0103 were passed by two successive legislatures as required by Article I, Section 3, and Article II, Section 9, Const. Am. Samoa. (1960). In the last four years, there have been seven attempts to define individually-owned land , none of which has passed both houses. (9)

We are left then, with little legislative guidance, and case law founded on English common law, Blackstone' s Commentaries, Maine's Ancient Law, and customs previous high court justices have judicially known.

CONCLUSIONS OF LAW

1. Plaintiffs' father abandoned the land in 1966. In order to maintain an action based upon original occupancy and use, there must be a present use of the land. The evidence shows that Plaintiffs have not used or otherwise occupied the land since 1966. Ilaoa v. Toilolo, 1 ASR 602, 606; Fanene v. Talio LT No.64-77 (1977). So even individually-owned land is that which Justice Morrow may have partially defined, this land is not that.

2. The land is not the individually-owned land of Defendant. We make this conclusion without deciding the validity of the deed though which Willis claims the land. We have found that Willis and his co-tenants were deeded only the flat land of the valley. Since we have found that the land in question is not part of the flat land of the valley, Willis cannot claim this land by the deed, whether or not the deed is valid.

**********

1. Kessing, Modern Samoa, its government and changing life, 268 (1978 reprint of 1934 ed.).

2. We find it interesting that a culture founded upon its communal land system has approximately 17 pages of laws covering the entire area of real property, while the juvenile act of 1980 consists of 58 pages and has been applied Less than ten times this year.

3. While it is unclear how the High Court became the arbiter of matai titles, the first law we can find giving the court the power was Regulation No. 8--1900, enacted September 14,1906 by C.B.T. Moore, Commander, U.S.N., Governor. When the court became involved with disputes as to matai titles, it also became involved with disputes as to land titles.

4. A.S. Code 1280 states in part: "... The term 'native land' shall mean communal land. The term 'freehold lands' shall mean all those lands included in court grants prior to 1900 which have not, at the request of the owner, been returned to the status of other land in American Samoa surrendering its freehold characteristic.

5. 5.27 A.S.C. 201.

6. 27 A.S.C. 402(a) and 27 A.S.C. 1202(c).

7. Act of April 7, 1962, Pub. L. 7-19, codified IX Code American Samoa, section 9.0103 (1961).

8. See note 7, supra.

9. S.107, 15th Fono, 3d Sess. (1978); H.157, 15th Fono, 3d Sess. (1978); H.220, 15th Fono, 4th Sess. (1978); S.2, 16th Fono, 1st Sess. (1979); S.59 , 16th Fono, 2nd Sess. .(1979); H.119, 16th Fono, 2nd Sess. (1979); S.97, 16th Fono, 3d Sess. (1980).

Immigration Bd.; Ki v.


MRS. TU'UGA KI, Petitioner,

v.

THE IMMIGRATION BOARD, AMERICAN
SAMOA GOVERNMENT, Respondent.

High Court of American Samoa
Appellate Division

AP No. 04-82

June 2, 1983

__________

Citizens and nationals of the United States may reside in American Samoa as of right. Such persons are not subject to arbitrary and capricious limitations regarding sponsorship of aliens; rather, matter is determined with reference to valid statutes and regulations.

Before GARDNER, Chief Justice, presiding, MURPHY, Associate Justice, TAUANUU, Associate Judge, and FAOA, Associate Judge.

PER CURIAM.

FACTS

Petitioner, Mrs. Tu'uga Ki was born in American Samoa. Presumably she is either a U.S. National or a U.S. Citizen.. Her husband is Korean. She [1ASR2d100] operates a variety store in Atu'u. Its customers are mainly Korean or Chinese fishermen. It is necessary that she employ a clerk who speaks Korean as she does not and her husband is engaged in other enterprises.

Hyun Lee is a Korean Citizen who came to American Samoa to work for Korea Marine Industry Development Corporation. In 1980 Mrs. Ki hired Mr. Lee to work in her store. She filed a request to sponsor Mr. Lee with the Immigration Board. The board granted the request and Mr. Lee was given a one year permit to remain in the Territory. She later again applied to the board and a second one year permit was issued which contained a provision that no further permits would be granted after 1982. In December 1981 Mr. Lee married a Korean citizen. She came into the territory on a tourist permit for 30 days, sponsored by Mrs. Ki. Mrs. Ki then filed petitions to sponsor Mr. & Mrs. Lee. The Immigration Board denied both petitions. The matter is before the appellate division for review of that decision.

Testimony before the Court showed that (1) Mr. & Mrs. Lee are law abiding people and will not become a public charge (2) Mrs. Ki wants to sponsor Mr. & Mrs. Lee as well as other members of Mr. Ki's family (3) Mrs. Ki has advertised for Korean speaking clerks but only Mr. Lee applied.

ISSUES

Did the Immigration Bo9rd abuse its discretion or otherwise violate the test set forth in ASCA section 41.0649 by failing to grant Mrs. Ki's petitions to sponsor Mr. & Mrs. Lee?

DISCUSSION

At the outset it might be helpful to make some rather elementary observations: American Samoa is an unincorporated territory of the United States. Cession of Tutuila and Aunuu (April 17, 1900); Cession of Manu'a Islands (July 14, 1904); 48 USCA As such, only U.S. citizens and U.S. Nationals (i.e. American Samoans) are in the Territory as a matter of right. See ASCA section 41.0201 ("alien means all persons who are not nationals or citizens of the United States of American"). All others are aliens and are here by sufference of the U.S. ex rel the Secretary of the Interior or its designated progeny, the Government of American Samoa.

The Island of Tutuila has a total area of 56 square miles, much of which is jungle covered cliffs, rugged and uninhabitable (Coastal Zone Management Atlas of American Samoa(1981)). Water, power, housing, food and space are all limited. The environment is fragile and it is the responsibility of the Government to carefully protect it. To do so requires rules regarding aliens. As such, the Fono has passed legislation attempting to address these matters. (ASCA Title 41, Citizenship, Alienage, and Immigration.) This opinion will examine the rules to determine whether they accomplish their legitimate purpose.

Mrs. Ki seeks to sponsor Mr. & Mrs. Lee under ASCA section 41.0606 . If she is not allowed to sponsor the Lees they will be excluded pursuant to ASCA section41.0601(3). The Immigration Board has, apparently, denied Mrs. Ki's sponsorship and issued an oxymoronic "order allowing Voluntary Departure." In passing the court again notes that the form is not helpful. It is confusing and its use ;is disapproved.

There appears no reason why Mrs. Ki cannot act as a sponsor under ASCA section 41.0606. Further. section 606 sets no limits or quotas and a resident is therefore entitled to sponsor as many aliens qualifying under ASCA section 41.0601 as he pleases, so long as they are not agricultural or domestic workers. The statute obviously benefits the canneries, but is a potential disaster to American Samoa. If the Fono wishes to enact a statute [1ASR2d101] restricting the number of aliens that a resident may sponsor it may do so. Until it has, the Immigration board may not say "its alright for resident A to sponsor 50 aliens, but resident B cannot sponsor anyone." Clear guidelines must be established so that the legitimate purpose of the Immigration act, i.e. limiting aliens in the territory, may be carried out on an evenhanded basis, affording due process to all and affording all so entitled an equal right to sponsorship.

Presumably, the Board's tenuous section 606 decision was an indirect attempt to avoid consideration of the petition under section 601. That section, however, sets forth the statutory test for the admission or exclusion of all aliens, and the Immigration Board is bound by ASCA section 41.0601 authorizes the board to exclude an alien unless he establishes that:

1. he is of good moral character ( there is no showing that the Lees fail this test; to the contrary, Mrs . Ki testified they were of good moral character),

2. he offers a skill or expertise not readily available in American Samoa (Mrs. Ki testified that she needed Mr. Lee's services in her business and that no Samoan is available who possesses Mr. Lee's ability to speak Korean; no showing was made on behalf of Mrs. Lee.),

3. he has a local sponsor (there is no question but that Mrs. Ki wants to sponsor Mr. & Mrs. Lee), and

4. he will not become a financial burden (this is not the case here).

The thrust of ASCA section 41.0601 is readily apparent. The board must admit any person, regardless of nationality, who meets the four specified criteria. It has discretion to admit or exclude any other" person who is not an American Samoan. The Fono may have intended to grant the board discretion to admit persons who are not American Samoans but who meet the designated requirements, and require exclusion of all other persons who are not American Samoans. However, the Court cannot interpret a statute in a manner clearly opposite to its plain meaning just because that: is what the legislature probably intended.

Nevertheless, the statute has a fatal defect both in its present form and in the form which may have been intended. The legislature simply cannot have admission or exclusion rest upon the whim of another branch of government. Delegation of legislative authority is proscribed by the separation of powers doctrine (See Tribe, American Constitutional Law sections 5-17.) It would, however permissible for the Fono to establish some general rules, as it has arguably done, so long as the administrative agency is required to and does promulgate specific, objective guidelines. Id. That has not occurred. Without such guidance, moreover, immigration determinations may constitute special legislation prohibited by 48 USCA 1471, regardless of whether the Fono or its delegate is making the decisions.

Since the statute in its present form improperly delegates excess discretion only where the applicant does not meet the specified criteria, it is only partially invalid. To the extent that the statute requires admission of any person who meets the criteria, it is valid. ASCA section 42.0601 , until altered by the Fono, therefore operates to entitle any person within its terms to immigration status, and to deny all others except as provided by law.

Mr. Lee, who meets the enumerated criteria of ASCA section 41.0601 , is entitled to remain in American Samoa. No evidence, however, was presented [1ASR2d102] on Mrs. Lee's behalf in regard to the second criterion. She is not therefore entitled to admission under section 601, but that does not end the inquiry.

ASCA section 41.0615 provides that an otherwise excludable alien may be issued permission to remain in American Samoa if his or her spouse is lawfully admitted for permanent residency and will otherwise suffer extreme hardship, so long as the permission will not endanger the safety or security of American Samoa. A person is entitled to apply for permanent resident status after residing in American Samoa for ten years (ASCA section 41.0603 ).

Mr. Lee is obviously not a permanent therefore avoid exclusion under section 615. Although the statute is harsh, it is within the authority of the Fono to provide for the admission of an alien and the exclusion of his wife.

For the reasons foregoing, the Immigration Board is ordered to allow sponsorship of Mr. Lee, but may exclude Mrs. Lee.

**********

Yamazaki v. Immigration Bd.,


HARUO YAMAZAKI, Appellant,

v.

IMMIGRATION BOARD OF AMERICAN SAMOA, Appellee.

High Court of American Samoa
Appellate Division

AP No. 14-79

April 16, 1980

__________

Lawful immigration board quorum requires presence of sufficient number of persons specified in statute, and members may not delegate authority to sit on board in abscence of statute to that effect.

Before MURPHY, Associate Justice, presiding, SCHWARTZ*, Acting Associate Justice, SHRIVER**, Acting Associate Justice, POUTOA, Associate [1ASR2d9] Judge, and SEVA'AETASI, Associate Judge.

PER CURIAM.

Petitioner was charged with violation of 9 ASC 10 and 208(b) by failing to give information or notice of a change of address and by becoming employed without the approval of the Immigration Board of American Samoa. After a hearing on these issues, the Immigration Board of American Samoa (sometimes herein after the Board) ruled that Petitioner should be deported from this territory. Prior to the deportation, Petitioner sought and received an order staying deportation. There was a factual dispute as to whether or not the office of the Attorney General had notice of the stay order and Petitioner was deported. At a prior hearing before this Court, the Government of American Samoa (sometimes hereinafter the Government) was ordered to permit the re-entry of the petitioner giving him the immigration status he held as of the date of the stay order. The issues presented are: was the Board properly constituted; did it have the quorum required to hold a hearing; and can the Petitioner be deported under the facts of this case. Because of our resolution of the first two issues, we need not address the third. The applicable Sections of Title 9 [now ASCA sections 41.0505 and 41.0506], American Samoa Code are quoted here in full:

"Section 261. Creation, composition, chairman. There is hereby created the immigration board of American Samoa, consisting of the Attorney General, the chief immigration officer, the President of the Senate, the Speaker of the House of Representatives, and the Secretary of Samoan Affairs. The board shall elect its own chairman at its first meeting each year.

"Section 262. Meetings, quorum, vote. The board shall meet at times and places determined necessary by the chairman for conducting business of the board. The presence of at least three members shall be necessary to constitute a quorum and a vote of the majority will be required to decide any issue. All members of the board including the chairman shall be entitled to one vote."

One other statute is useful in analyzing this case. Title 3, American Samoa Code, section 14 (delegation of executive authority):

Authority but not the responsibility vested in the Governor or any other persons in the executive branch of the Government of American Samoa may be delegated by that person to other officers and employees of the executive branch (as amended in 1977).

Respondent argues that the topic of Immigration law in American Spmoa is an important topic and should not be treated lightly. We are of the same belief and judging from the blue ribbon panel established under 9 ASC 261, it appears that the Fono feels similarly. The members of the Fono were very explicit as to who would be the members of the Board, how many there would be, and how many would constitute a quorum. The Fono is aware that a statute is necessary if any officials of the Government are to be permitted to delegate their powers, 3 ASC 14, which permits the delegation of powers for the executive branch of the Government was placed in the 1961 version of the American Samoa Code and amended as recently as 1977. Knowing the Fono has given only the Executive Branch the power to delegate authorty, we [1 ASR2d 10] compare the members of the Petitioner's Board to the board required by law.

Page 1 of the transcript of the Petitioner's hearing before the Board indicates the following people were present: Chief Fealofani, representing the Secretary of Samoan Affairs, Senator Fa'amausili of the Senate, Representative Frank Reed of the House of Representatives, Chief Immigration Officer So'oso'o Tuiolemotu, Acting Chairman Aviata Fa'alevao, Reporter Miss Tia Aitaoto, counsel for the Petitioner and the Petitioner. Petitioner requested that Mr. Aviata fa'alevao and Chief Immigration Officer So'oso'o Tuiolemotu disqualify themselves from hearing Petitioner's case because they were directly involved in the prosecution of the criminal case against Petitioner. This was agreed to by the board. This action left Chief Fealofani, representing the Secretary of Samoan Affairs, Senator Fa'amausili of the Senate, and Representative Frank Reed of the House of Representatives. Respondent admits that Senator Fa'amausili is not the President of the Senate and that Frank Reed is not the Speaker of the House of Representatives.

Although there was no proof submitted as to this delegation it is possible under 3 ASC 14, that if the Secretary of Samoan Affairs delegated his authority to sit on the Board to Chief Fealofani, then Chief Fealofani would be one member of three required for a quorum by 9 ASC 262. There being no statute permitting delegation of authority for members of the Legislative Branch of the Government, and neither the President of the Senate nor the Speaker of the House being present, we find no quorum present. Without a quorum, the action taken by the people hearing Petitioner's case can be of no effect.

We hold that a person is entitled to due process of law before he can be deported from American Samoa. Because Petitioner did not receive a hearing before a Board constituted as required by statute, we find that Petitioner was deprived of the due process of law to which he was entitled.

IT IS ORDERED that the Order of the Immigration Board of American Samoa dated August 22, 1979, and directed towards Haruo Yamazaki be and hereby is vacated.

IT IS FURTHER ORDERED that Haruo Yamazaki is hereby restored to the immigration status that he held as of August 21, 1979.

**********

*Honorable Edward J. Schwartz, Chief United States District Court Judge, Southern District of California, sitting by designation of the Secretary of the Department of the Interior.

**Honorable Paul D. Shriver , United States District Court Judge , Retired, Territory of Guam, sitting by designation of the Secretary of the Department of the Interior.


Hartford v. Workman's Comp. Comm’n,


HARTFORD FIRE INSURANCE COMPANY, Appellant ,

v.

WORKMEN'S COMPENSATION COMMISSION
OF AMERICAN SAMOA, AND VI TUATUA FOR
HERSELF AND HER CHILDREN, Appellees.

High Court of American Samoa
Appellate Division

AP No. 15-79

January 13, 1981

__________

In regard to causal connection between work and death for purposes of workmen's compensation, presumption of causation shifts the burden of proof to the employer.

Before McNICHOLS*, Acting Associate Justice, presiding, NIELSEN**, Acting Associate Justice, SHRIVER***, Acting Associate Justice, TAGO, Associate Judge, and TAUANU'U, Associate Judge.

PER CURIAM.

This case concerns a claim for Workmen's Compensation benefits by the survivors of an employee of the American Samoan Government who died of a heart attack while at work during his normal working hours. The Workmen's Compensation Commission awarded benefits to his wife and children. Appellant appealed this decision to the Trial Division of this Court on the basis that an insufficient causal connection was shown between decedent's death and any work-related cause. In fact, no evidence was introduced about the cause of the heart attack by either side. The trial court affirmed the decision of the Commission, holding that the presumption codified in 24 ASC 452 operated to shift the burden of proof on the issue of causation to Appellant, and required Appellant to meet that burden by substantial evidence. As Appellant had made no showing that the heart attack was caused by other than work-related factors, the Chief Justice held that it must be presumed to have been caused by a work-related accident. We affirm.

The section in question here was taken verbatim from a provision of the Longshoremen's and Harbor Workers' Compensation Act (18 USC section 901 et. seq.), 18 USC section 920. Thus, any law on that section must be afforded great persuasive weight in interpreting the section at issue here. Of the cases cited by Chief Justice Miyamoto in his decision below, Wheatly v. Adler, 407 F.2d 307 (D.C. Cir en banc 1968) is particularly close to the facts in the case at bar. InWheatley, another worker died of a heart attack of indeterminate cause. The circuit court held the presumption to be effective in that situation (see opinion below at p.5).

For the above reasons, and for the others stated by Chief Justice Miyamoto in his decisions, the judgment is AFFIRMED.

**********

*Honorable Ray McNichols, United States District Court Judge, District of Idaho, sitting by designation of the Secretary of the Department of the Interior.

**Honorable Leland C. Nielsen, United States District Court Judge, Southern District of California, sitting by designation of the Secretary of [1ASR2d58] the Department of the Interior.

***Honorable Paul D. Shriver, United States District Court Judge, Retired, Territory of Guam, sitting by designation of the Secretary of the Department of the Interior.

Hall; Rose v.


ANDREW ROSE, Plaintiff,

v.

ROY J.D. HALL JR., an individual; HALL & ASSOCIATES,
a professional corporation; and DOES I through X, Defendants.

High Court of American Samoa
Trial Division

CA No. 29-79

April 30, 1980

__________

Partnership may be dissolved by mutual consent prior to time set partnership agreement and such consent may be implied. Partners modify terms of dissolution set forth in partnership agreement hut modification agreement must be complete as to all its material terms.

Fraud recovery in American Samoa requires proof 1) that there was material representation of fact, 2) that the representation was false, that the representation was made with intent to deceive, 4) that representation was relied on by the person complaining, 5) that complainant had a right to rely on the representation, and 6) that complainant was injured by his reliance.

Statements published in connection with litigation privilege and may not form the basis of a tort recovery Breach of contract is not such extreme and outrageous In may such a 3) the the the enjoy judicial for defamation. conduct as will [1ASR2d18] subject the breacher to liability for reckless or intentional infliction of emotional distress.

MURPHY, Associate Justice.

This matter came on for trial to the Court, commencing April 8, 1980. The issues were defined by the pleadings. Plaintiff-Counterdefendant, Andrew D. Rose (hereinafter referred to as Rose) testified and introduced evidence. Defendant-Counterclaimant, Roy J.D. Hall, Jr. (hereinafter referred to as Hall) testified and introduced evidence. The parties were the only witnesses. Both parties rested, the matter having been fully submitted and taken under advisement April 10, 1980.

During the course of the trial, Rose withdrew his claim against Defendant, Hall and Associates, on all claims for relief except thnt numbered fifth in the complaint. The Court granted Hall's motion to dismiss Plaintiff's fifth claim for relief as to both Hall, and Hall and Associates, we also granted Hall's motion to dismiss as against Hall, the fourth, fifth, and sixth claims for relief as numbered in the complaint. The Court took under advisement Hall's motion to dismiss Rose's remaining claims for relief. The Court also took under advisement Rose's motion to dismiss Hall's counterclaim. The following findings of fact, conclusions of law, opinion, and order, are dispositive of all issues and matters under advisement. The findings of fact are made pursuant to Rule 52, Fed. R. Civ. P.

FINDINGS OF FACT

In 1976 Rose was employed as a law clerk for Justice Leslie N. Jochimsen the High Court of American Samoa, at a salary of $16,000-$18,000 per year. His previous work experience in the legal profession had been as clerk, earning a relatively insignificant salary. Hall was in private practice in American Samoa as a sole practitioner. His practice was relatively successful with increasing earnings. In 1976, he earned a net income of approximately $46,000. During November, 1976, Hall and Rose agreed to form a partnership for the practice of law, commencing January 1, 1977, and to continue for a term of three years. The parties commenced practice as Hall & Rose. After commencement of the partnership operations, Hall became dissatisfied with Rose for the following reasons, among others:

1. Rose experienced marital problems in that his wife was discontent in American Samoa. In an effort to appease her discontent, Rose took her on trips to the United States and New Zealand at firm expense and began spending more time during business hours with her and devoted less time to the office. He became unable to devote needed time to the office.

2. Rose advised some of the firm's business clients that it was necessary and customary to have monthly director's meetings at which he acted as chairman. The clients complained about being billed for his attendance at those meetings.

3. Clients complained about Rose's billings insofar as they did not feel he was putting in the hours reflected in the bill.

4. Rose suggested that Hall & Rose invest in in business opportunities obtained as a result of information gained through representation of certain clients, to the probable disadvantage of the client.

5. Rose did not produce clients as he had promised.

In October, 1977, Hall announced his desire to terminate the partnership. Rose consented to the dissolution provided the fees owed could [1ASR2d19] be collected and divided between them. Hall and Rose commenced negotiation of the terms of the dissolution which included, inter alia, division of fees, allocation of accounts payable, division of assets and liabilities, and relocation money for Rose and his family.

The terms of the division of assets and liabilities were never agreed upon or reduced to writing.

The partnership practice terminated in November, 1977.

Rose returned to the mainland in January, 1978, and obtained a job with his present employer, General Dynamics, at approximately $22,000 per year, He presently earns $27,500 per year. His income from Hall & Rose in 1977 was $37,658.00, plus reduced rent for family housing and the trips mentioned above.

Subsequent to the termination of the partnership, Hall paid Rose $3,000. Hall also paid income taxes due the American Samoa Government by Rose in the amount of $5,178.30 when the American Samoa Government filed a lien on both partners' bank account.

Both Rose and Hall claim they are entitled to damages as a result of the wrongful acts of the other, and have presented detailed accountings in support of their claims.

CONCLUSIONS OF LAW

1. The evidence presented at trial by both parties was sufficient to constitute the accounting to which both parties claim to be entitled.

2. Because we have found that the original oral partnership agreement entered into between the parties was terminated by mutual consent, neither party breached that agreement.

3. Because we have found the parties never agreed as to the terms of the partnership dissolution agreement, there was no legally enforceable agreement which could be breached.

4. Plaintiff had no right to rely on the alleged false representations made by Defendant to him. Because we have found that the Defendant did not make any false representations of fact, and because we have concluded Plaintiff had no right to rely on the misrepresentations even if they were made, Plaintiff does not have a valid claim for relief for fraud.

5. There was insufficient proof to show by a preponderance of the evidence that Hall, or Hall & Associates, a professional corporation! converted any assets of the partnership of Hall & Rose.

6. Because we have found neither party committed acts of extreme and outrageous conduct, either intentionally or recklessly, neither party has a claim for relief for infliction of severe emotional distress.

7. Although Rose did misrepresent material facts to Hall in the formation of the partnership of Hall & Rose, Hall did not have a right to rely on those misrepresentations.

8. Because parties to judicial proceedings have an absolute privilege to publish defamatory matter concerning another in communications preliminary to a judicial proceeding and during the course of the proceedings, and because there was no evidence of unprivileged communications, Hall does not have a claim for relief against Rose for defamation.

MEMORANDUM OPINION

There is little, and in some cases no statutory or case law on some of the areas of law involved in this case. In such situations, this Court will normally refer to Federal statutory law, and in its absence, Federal common [1ASR2d20]law. In particular, partnership law is of the nature that there is little Federal law on the subject, so, as a necessity, state common law was turned to in some issues. Most states have adopted the Uniform Partnership Act and have been operating under that act or other statutory acts for many years. As a result of this, the cases cited in this opinion are often very old. Nevertheless, they do still reflect the common law of partnerships as best we could determine it and do produce an equitable result.

BREACH OF CONTRACT FOR THE FORMATION OF THE
PARTNERSHIP OF HALL & ROSE

Since partnerships are formed by the mutual agreement of all partners they may be altered, modified, or dissolved by like agreement. Meyer v. Sharp, 341 Ill.App. 431, 94 N.E. 2d 510 (1950). The intent to dissolve a partnership by mutual consent may be evidenced by the act of the partners in the absence of formal articles of dissolution. Cave v. Cave, 81 NM 797, 474 P.2d 480 (1970). The dissolution of a partnership by mutual consent is not restricted to partnership by will. Notwithstanding that a time for the dissolution of the partnership may be fixed by the partnership arttcles (or in this case by oral agreement), the partners may by their mutual assent dissolve their relation by agreement before such time, and this may be accomplished either by an express agreement or by words and acts implying an intention to dissolve the partnership. See Evatt v. Campbell, 234 SC 1, 106 S.E.2d 447 (1959). And when a partnership is terminated by the mutual con~ent of the partners, no damages lie for the termination thereof, Meyer v. Sharp, 341 Ill.App. 431, 94 N.E.2d 510 (1950).

BREACH OF THE CONTRACT TO DISSOLVE THE
PARTNERSHIP OF ROSE & HALL

Partners may agree upon terms of a dissolution differing from those originally provided in the partnership agreement, but where the partnership agreement and dissolution agreement conflict, the latter controls. Guenther v. Kutz, 270 Pa. 144, 112 A. 919 (1921). However, in agreements to dissolve partnerships, as with all contracts which are later to be reduced to writing, there must be agreement as to all the terms of the contract. Even when there is no agreement as to all the terms, the parties may proceed with their negotiations as to these other terms, without any new and distinct reference to the terms to which they have already assented. There is no contract until agreement is reached on all terms, the preliminary and partial agreements being expressly or impliedly incorporated into the final offer and acceptance. Purrington v. Grimm, 83 Vt. 466, 76 A. 158 (1910). While it is possible for parties to make an enforceable contract binding them to prepare and execute a subsequent documentary agreement, for it to be effective it is necessary that agreement shall have been expressed on all essential terms that are to be incorporated in the document. Shepard v. Carpenter, 54 Minn. 153, 55 N.W. 906 (1860). That document is understood to pe a mere memorial of the agreement already reached. If the document or contract that the parties agree to make is to contain any material term that is not already agreed upon, no contract has yet been made; and the so-called "contract to make a contract" is not a contract at all.Canadian Nat. R. George M. Jones Co., 27 F.2d 240 (6th Cir. 1928); Transamerica Equipment Leasing Corp. v. Union Bank, 426 F.2d 273 (9th Cir. 1970) National Tea Co. v. Weiss, 341 F.2d 331 (7th Cir.)

In this case we have found that the parties did not reach dissolution agreement. Although Rose repeatedly insisted at trial the terms of the dissolution agreement were settled and only the final that all monetary [1ASR2d21] values need be applied to formulae agreed to by both parties, Hall's testimony was to the contrary, and quite frankly, after hearing all the evidence, we found Hall's testimony to be consistent with the uncontested fact, and therefore more credible. Because we have found there was no separate dissolution agreement, no damages lie for any breach thereof.

FRAUD

Because we have found that Hall made no false representations, we will not discuss Rose's claim for relief based on fraud.

In regard to Hall's claim for relief for fraud, the law generally requires good faith in every business transaction, and does not allow one intentionally to deceive another by false representations or concealments, and if he does so, it will require him to make good such representations, but it does not make one party to a contract responsible in damages for every unauthorized, erroneous, or false representation made to the other, although it may have been injurious.

We have been unable to find any prior statements of the elements required to prove fraud in this jurisdiction. Having reviewed the common treatises on the subject and the recent federal cases, we hold that for a person to recover for fraud in American Samoa he must prove the following: (1) that there was a material representation of fact, (2) that the representation was false, (3) that the representation was made with the intent to deceive, (4) that the representation was relied on by the person complaining, (5) that the complainant had a right to rely on the representation, and (6) that the complainant was injured by his reliance.

Hall's case turns on whether or not he had a right to rely on Rose's misrepresentations. This hinges on whether or not Hall had a duty to investigate the representations made to him. See McCarthy v.Cahill, 249 F.Supp. 194 (D. DC 1966). It seems to us that the only factual misrepresentations Rose made were his statements that he had previously been an associate with a prestigious La Jolla law firm and that he would be able to produce new clients for the firm from his "contacts." Where truth falsity of the representation is obvious on its face, or a mere cursory glance would have revealed its falsity, a party would not necessarily be justified in relying upon the representation. McCarthy v. Cahill, supra. In this case, Hall could have investigated this statement by asking for references. The representations as to the number of clients Rose would bring in, etc., are not the kind which are actionable as they are only pinions. Jt. Holdings & Trade Ltd. v. P.J. Brennan, Inc. of Samoa, 4 ASR 812 (1974). Furthermore, once Hall became aware of the misrepresentations, he was no longer entitled to rely on them and thus cannot recover for lost profits incurred thereby. Magna Weld Sales Co., Inc. v. Magna Alloys and Research Pty. Ltd., 545 F.2d 668 (9th Cir. 1976). In order to assess actual damages under those circumstances we would, of necessity, be required to enter the realm of speculation, which we cannot do.

In summary, then, it appears to us that what happened is Rose repeatedly mislead Hall and Hall relying on the false representations entered into a partnership agreement with Rose. Because we have held one of the elements for actionable fraud in this territory is the right of the complainant to rely on the misrepresentation, and we have found that Hall did not have such a right, he cannot recover for fraud. This leaves Hall in the position of having contracted with someone who failed to meet Hall's hopes and expectations, and for this there is no recovery. Jt. Holdings, supra. Regrettably for Hall, he entered into a bad business deal and is now left holding the bag. [1ASR2d21]

CONVERSION

Conversion is an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, or the alteration of their condition, or acting to the exclusion of the owner's rights, or any unauthorized act which deprives any owner of his property permanently or for an indefinite time. Quaker Oats v. McKibben, 230 F2d 652 (9th Cir. 1956).

In this case, Rose complains that some of the assets of Hall & Rose (mostly office equipment) were converted to the use of Hall & Associates. After hearing the testimony of both parties and reviewing the accountant's documents submitted by them, we are not convinced by a preponderance of the evidence that any assets of Hall & Rose were converted by Hall & Associates or anyone else.

INFLICTION OF EMOTIONAL. DISTRESS

Both parties have made claims that the acts of the other have caused emotional distress. After reviewing the laws of the various states, we are persuaded that the Restatement of Torts, Second, contains a statement which will best protect the interests of the people residing in American Samoa. We adopt that portion of Section 46 of the Restatement of Torts, Second, that is necessary to resolve the dispute in this case. Namely:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Rose complains that the outrageous conduct committed by Hall was, inter alia, Hall's failure to accept collect overseas telephone calls from and failure of Hall to pay Rose payments required by the alleged dissolution agreement. Rose admits that failure to make payments required by contract is not sufficient to meet the requirements of this court. He argues that he purchased a home in Southern California, the loan payments for which were in excess of $700 per month, and without the payments from the alleged dissolution agreement he nearly went into default on the loan, thereby suffering severe emotional distress. The acts complained of here are not sufficient to meet the requirements of this tort. See generally Prosser, Law of Torts, 4th ed. Furthermore, we note no one forced Rose to move to Southern California and buy an expensive home. He admits to having left American Samoa with over $20,000 in cash, having come to this Territory with approximately one-tenth that amount. To complain that the emotional distress caused him by Hall failing to make payments on the alleged dissolution agreement goes too far for us. If it were appropriate, we would find that Mr. Rose caused his own emotional distress by getting himself into the predicament.

Hall's claim of outrageous conduct on the part of Rose is that Rose left the Territory without paying his taxes. As a result of this, a tax lien was placed on the accounts of Hall & Associates, thereby causing Hall severe emotional distress. Other conduct alleged to have caused Hall emotional distress was the collect telephone calls made to him by Rose from California, one of which is averred to have been made under the ruse of being an emergency call from a relative.

After reviewing these facts, even in the light of the circumstances of the time, we do not find the acts to be sufficiently outrageous to warrant recovery for infliction of emotional distress. [1ASR2d23]

DEFAMATION

Because of the factual circumstances surrounding Hall's claim against Rose for defamation, we need not address the elements required for proof of this tort, nor need we address the defamatory character of the allegations made by Rose in his complaint and while testifying as a witness in this case. Suffice it to say, all or nearly all jurisdictions provide the parties to a law suit an absolute privilege to publish defamatory matter concerning another in communications preliminary to a judicial proceeding and during the course of the proceedings. After reviewing the law in several jurisdictions we are persuaded that the statement of the privilege made in the Restatement of Torts, Second, section 587, is as good as any, and we adopt it as the law on this point in this Territory. Had Rose published the defamatory matter at times not related to this litigation, or had he published the matter excessively, it would be a different story. But, having reviewed the evidence, we find the preponderance of the evidence is that no such unprivileged communications were made.

ORDER

IT IS ORDERED that judgement be entered in accordance with the findings of fact and conclusions of law set forth above.

**********

Great American Ins. Co. v. Pacific Princess,


GREAT AMERICAN INSURANCE COMPANY,
Plaintiff,

v.

THE VESSEL PACIFIC PRINCESS n/k/a PACIFIC ISLANDER,
her engines, tackles, etc., Defendant.

High Court of American Samoa
Trial Division

CA No. 85-81

December 7, 1982

__________

High Court of American Samoa has jurisdiction over in rem admiralty proceedings so long as American Samoa remains without the jurisdiction of a United States District Court; court has corresponding discretion to transfer and receive causes to and from other courts of the United States the same as any federal court where to do so would join a timely complaint and a perfected service of process.

MURPHY, Associate Justice.

The above captioned matter came before the court on cross motions for summary judgment. Plaintiff, having subrogated to the rights of its insured, seeks partial recovery. We do not reach all of the issues asserted because Defendant's motion and the opposition thereto is dispositive. This action involves a contract for the carriage of goods by sea from a point in Australia to Guam and the Northern Marianas. The first count alleges damages in the amount of $7,500 for ruined chocolates. The second count alleges nearly $50,000 in damages for frozen meats that were destined for the Northern Marianas (Saipan) but which were destroyed in Guam due to spoilage occasioned by a malfunction of the container's refrigeration unit. The meat was in Guam on or about June 3, 1980 and assertedly would have been shipped to the Northern Marianas through Kobe, Japan but for condemnation by Guam authorities. The third count alleges slightly less than $2,700 in damages for rice that was lost or delivered wet. The rice arrived or should have arrived at its Guam destination on or about June 3, 1980. In the instant case, the sole defendant is the vessel Pacific Islander (Pacific Princess before changing hands after the present claim arose).

This controversy is also the subject of suits filed in Guam and the Solomon Islands. After filing in those jurisdictions, Plaintiff was frustrated in its attempts to serve process on the vessel. An in rem admiralty complaint was filed in this court on December 16,1981 after Plaintiff learned that the vessel was or would come within the territorial waters of American Samoa. A warrant for the arrest of the ship was also issued on that date. Subsequently, the vessel posted bond and was released.

The issue before the court on Defendant's Motion for Summary Judgment [1ASR2d65] is whether the claim here is barred by the one year statute of limitations provision in the Carriage of goods by Sea Act, (hereafter "COGSA") 46 USCA section 1303(6). Plaintiff asserts that the time period was tolled by defendant's actions and that otherwise the process and bond should be transferred to the Territory of Guam where the action was timely filed that it may be considered on its merits.

We note jurisdiction and hold that the instant claim is time barred by COGSA. The cause shall be dismissed and the bond returned to the vessel unless a party hereto diligently requests an order that will effect a joinder of the service perfected here and a timely filed claim in another jurisdiction.

Jurisdiction as to in rem admiralty proceedings is conferred upon the High Court of American Samoa by a circuitous route. Federal district courts have original and exclusive jurisdiction over "(a)ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." 28 USCA 1333(1). The "saving to suitors" clause operates to grant state and territorial courts concurrent jurisdiction with Federal courts over in personam admiralty proceedings. See Madruga v. Superior Court of California in and for the County of San Diego, 346 U.S. 556, 560 (1954); Meaamaile v. American Samoa, 550 F. Supp. 1227 (D. Hawaii 1982); The Vessel Fiiian Swift v. Trial Division, High Court of American Samoa, 4 ASR 982 (1975). Once the Plaintiff chooses a state or territorial forum, the cause may be removed pursuant to 28 USCA section 1441, upon Defendant's motion, to the district court of the place where the complaint was filed. See, e.g., Commonwealth of Puerto Rico v. Sea-Land Service, Inc., 349 F.Supp. 964 (D. Puerto Rico, 1970).

Contrarily, in rem admiralty jurisdiction may be exercised only in those courts that are established pursuant to Article III of the United States Constitution and those courts as to which Congress has granted such authority. See The "City of Panama" v. Phelps, 101 U.S. 453 (1879);United States v. Cantor, 26 U.S. 511 (1828); Meamaile, supra. The only Congressional act relating to the governance of American Samoa is 48 USCA 1661, which provides in part that all judicial powers "shall be vested in such person or persons and shall be exercised in such manner as the President of the United States shall direct." 48 USCA 1661(c). Pursuant thereto, the President has vested power over the judiciary of American Samoa in the Secretary of the Department of the Interior. The Secretary has delegated to American Samoa authority to establish a constitution and laws thereunder. This has been done and the Fono has enacted a provision granting jurisdiction in the High Court of American Samoa over in rem admiralty proceedings. 3 ASCA Section 3.208. The same has been approved by the Secretary of Interior and held to be a proper grant of admiralty competence. Meaamaile, supra.

We turn now to Defendant's averment that the instant claim is time barred by the one year COGSA limitations period. Application of COGSA is mandatory here as in any case involving the shipping of goods by sea between a foreign port and a port of the United States or its Territories. 46 USCA 1312. Moreover, the limitations period must be strictly enforced. COGSA derives from the Hague Rules of 1921 approved by the Brussels Convention of 1922-24 and has been adopted by nearly every major shipping nation for the express purpose of providing uniformity in international law. Fireman's Ins. Co. of Neward, N.J. v. Gulf Puerto Rico Lines, 349 F. Supp. 952, 955 (1972). Courts have uniformly dismissed cases brought beyond the statutory period without regard to the carrier's lack of diligence or the merits of the claim. E.g.,Medina v. South & Caribbean Line, Inc., 342 F. Supp. 498 (D.[1ASR2d66] Puerto Rico 1972); American Tobacco Co. v. Transport Corp., 277 F. Supp. 457 (D.Va. 1967). In M.V.M. Inc. v. St. Paul Fire & Marine Insurance Co., 156 F.Supp. 879 (S .D. NY 1957), the court stated that the effect of the time bar is absolute, extinguishing the remedy itself. Id. at 833. The M.V.M. court cited Midstate Horticultural Co. v. Pennsylvania RR. Co., 320 U.S. 356 (1943),which was decided under a time-for-suit clause of the Interstate Commerce Act exactly like COGSA's. Midstate defined the effect of the clause as that of the caducity clause in R.P. Farnsworth & Co. v. P.R. Urban Renewal Housing Corp., 289 F. Supp. 666 ( D .DC 1968): "It admits no interruption, that is, its extinguishing effect or barring effect is absolute and runs automatically with time." Further, the statute of limitations continues to run even if "the owners of the vessel kept it 'hidden' and changed her ownership and name in order to avoid, if possible, its being libelled." Rayon Y. Celanese Peruana, S.A. v. M/V Pugh, 471 F. Supp. 1363, 1372 (S.D. NY 1979).

There does appear, nevertheless, to be two situations in which the limitation period will be tolled. The first is where the carrier actually promises the prospective plaintiff, unequivocally, that its claim would be paid and then fails to do so. Lindsay v. Kissinger, 367 F. Supp. 949 (S.D. NY 1973). The second involves an agreement to extend the time for suit or which other encompasses consent to be sued beyond the statutory period. Toyomenka, Inc. v. Toko Kaiun Kabushiki Kaisha, 342 F. Supp. 292 (S.D. Tex. 1972 ); Sumitomo Shoji America, Inc. v. SS Aurora II, 342 F. Supp. 298 ( S .D . Tex. 1972). Neither situation arises under the facts of the case at bar. Although the date on which the goods which are the subject of Plaintiff's claim were or should have been delivered has not been adequately briefed by counsel as to all of the counts in the complaint, this fact does not militate against our conclusion that the time bar is herein applicable. The cases have construed COGSA's "were or should have been"language to mean the earlier of the two dates upon which delivery was effected or anticipated. See Cerro Sales Corporation v. Atlantic Marine Enterprises, 403 F.Supp. 562 (S.D. NY 1975); Western Corporation v. States Marine Lines, Inc., 362 F.2d 328 (9th Cir. 1966). As such Plaintiff's cause of action accrued sometime in June or July, 1980 at the very latest. The claim was filed in this court approximately a year and a half thereafter, well beyond the one year statute of limitations. Similar claims were filed in the district court for the District of Guam 9 and 12 months thereafter, presumably within the one year statute of limitations.

While it is clear that a suit in admiralty is commenced by the filing of a libel, United Nations Relief and Rehabilitation Administration v. the Mormacmail, 99 F.Supp. 552, 554 (S.D. NY 1951); Ore Steamship Corp. v. D/S A/S Hassel, 137 F.2d. 326 (2d Cir. 1942); 2 Benedict, Admiralty, section 276 (6th ed. 1940), it is equally clear that the filing of a libel in one jurisdiction does nothing to toll the statutes in another. Hugo Stinnes Steel& Metals Co. v. Oldendorff, 372 F.Supp. 705 (D.C. Ga. 1974). These were, in fact, the precipitating of the court's decision in Internatio-Rotterdam, Inc. v. Thomsen, 218 F. 2d 514 (4th Cir. 1955).

In Rotterdam, Plaintiff brought suit in New York against a vessel, alleging a breach of their shipping contract. Although the libel action was filed within the limitations period, the vessel was not arrested because it could not be found within the court's jurisdiction. After the expiration of the one year period, the libellants learned that the vessel would shortly be in Baltimore, and upon their motion the New York court transferred the action there as it was impossible to file in the latter jurisdiction within the time provided. Upon the vessel's motion, Judge Thomsen dismissed the [1ASR2d67] claim in his court, believing that the New York court was without authority to transfer the suit to Maryland. A mandamus proceeding was then brought before the fourth circuit, seeking to compel Judge Thomsen to accept jurisdiction Id. at 515.

The circuit court first noted that while Admiralty Rule 22 (28 USC), requires an allegation that the property to be libeled is within the district, the requirement is satisfied if the property is expected to be there, thereby preventing a 46 USCA 1303(6) time forfeiture. Id. at 515-16. The court then held that a transfer of actions among district courts in order to preserve anin rem admiralty claim and obtain service of process therefor is within both the letter and spirit of the federal venue statutes, 28 USC 1404(a) and 1406(a). Id. at 516. See also Rinaldi v. The Elzabeth Bakke, 107 F. Supp. 975, 976 (D. DC 1952). The court thus ordered Judge Thomsen to accept jurisdiction. The facts in the instant case are very much like those in Rotterdam, except that Plaintiff, in opposing defendant's motion for summary judgment, seeks a reverse Rotterdamtransfer, and asks this court to transfer the process to the court where the action was timely filed. Plaintiff's point is well taken. There is language in Rotterdam suggesting that approach:

...and the district judge ...[of the transferee district where the action was
time-barred but where service had been perfected] ...filed an opinion
stating that the proceedings would be dismissed unless the libelants should
indicate that they desired that the suits be sent back to the Southern District
of New York." Id. at 515.

The libelants did not do so, id., and the Rotterdam holding resulted. We note that Rotterdam was cited by the court in Goldlawr v. Heiman, 288 F. 2d 579 (2d Cir. 1961), and given no impact beyond its facts. Goldlawr was later reversed, however, by the United States Supreme Court,Goldlawr v. Heiman, 369 U.S. 463 (1962), because it conflicted with Rotterdam. Id. at 465, text and note 8. By implication, Rotterdam's holding was affirmed by the Court and its vitality has not since been questioned.

While no remedy can be obtained on the time-barred suit filed here, we are not unmindful of the difficulties that can ensue from the inherent mobility of vessels and the strict procedural rules relating to in rem service of process. Although much of the Plaintiff's claim is of doubtful merit, in that it asserts liability on the part of the carrier for a defect in the shipper's (plaintiff's insured) container, every cause should have a forum. Rotterdam was intended to achieve that end as to in rem admiralty proceedings and is therefore persuasive here. But for its holding, Defendant in the instant case conceivably could frustrate any decision on the merits of plaintiff's claim indefinitely, a result we are loathe to endorse.

Having concluded that a Rotterdam transfer is the proper vehicle with which to obtain a decision on the merits in the case at bar, and having also concluded that the transfer might be ordered in either direction, we note that the transfer in Rotterdam was effected between district courts. 218 F.2d at 515. An issue is thus presented regarding whether this court might participate in such a transfer.

The High Court of American Samoa clearly is not a district court, Meaamaile v. American Samoa, 550 F. Supp. 1227 (D. Hawaii 1982), but this not end the inquiry. We are perhaps the only "non Article III" court which has been authorized by Congress, albeit indirectly, to hear in rem admiralty cases. Meaamaile, supra. District courts are distinguished from other [1ASR2d68] courts by their jurisdiction, particularly, by their exclusive jurisdiction as to in rem admiralty cases. Madruga, supra. As to such cases, this court has been authorized to wear a federal robe because American Samoa is a United States Territory without the jurisdiction of any United States District Court. See Meaamaile, supra. Therefore we are a district court as to in rem admiralty proceedings and for purposes of a Rottendam transfer.

For the reasons foregoing, we hold that the untimely claim filed here cannot provide relief but also that service of process was properly perfected in this jurisdiction. It is our intention to dismiss the cause and return the bond to the vessel unless, upon prompt motion of either party, this court is requested to transfer the bond and process perfected here to the district court for the District of Guam or to receive the action timely-filed in Guam per order of that Court.

WHEREFORE IT IS ORDERED that Plaintiff take nothing by virtue of the complaint hereto pertaining. IT IS FURTHER ORDERED that Defendant's property be retained subject to a motion to transfer bond to the United States District Court for the District of Guam, provided, however, that if such motion is not filed within 30 days, the bond shall be returned to Defendant, except as hereinafter indicated. IT IS FURTHER ORDERED that Defendant's property be retained to preserve and vindicate a motion to the District Court for the District of Guam to transfer proceedings there filed against defendant to this court, provided, however, that if such motion is not filed within 30 days, the bond shall be returned to Defendant, except as hereinbefore indicated.

**********

Galea'i v. Tu'inauau,


PETESA CONGREGATIONAL CHRISTIAN CHURCH,
and REVEREND OTTO GALEA'I, Plaintiffs,

v.

FUIMAONO TU'INANAU, Defendant.

High Court of American Samoa
Land and Titles Division

LT No. 13-80

June 11, 1980

__________

Attempted transfer of real property to corporation that did not exist at the time of the transaction is void for lack of a lawful grantee.

MURPHY, Associate Justice.

This cause came before us on a complaint for permanent injunction. A temporary restraining order was issued to reduce the liklihood [sic] of physical confrontation. One month later the court modified the restraining order prohibiting all parties from further building or excavation of the land, title to which is issue in this case. On the date set for trial, agreed to submit the case to the Court on the pleadings and the testimony received at earlier hearings. Based on the pleadings, testimony of witnesses, and argument of counsel, the court makes the following findings of fact and conclusion of law:

FINDINGS OF FACT

1. On February 7, 1978, Fuimaono Tu'inanau and Fa'alua Fuimaono [1ASR2d24] purportedly conveyed by "deed of conveyance" to "Petesa Congregational Christian Church in Samoa of Tafuna Village" (hereinafter Church) approximately .749 acres of land located in the Village of Tafuna, Island of Tutuila, Territory of American Samoa. This deed was signed by FuimaonoTu'inanau and Fa'alua Fuimaono, as grantors, and by ten natural persons allegedly representing the Church, as grantees. At the time of the purported conveyance, Defendant was a member of the Church. The deed of conveyance was recorded with the office of the Territorial Registrar.

2. Sometime after February, 1978, a house was constructed on the land at issue and this house was used for Church meetings. Reverend O'Brien was named the pastor of the Church and apparently the church members agreed with his actions as pastor. In1978, Pastor O'Brien became sick and Reverend Otto Galea'i was selected to succeed Reverend O'Brien as pastor. A dispute arose between Pastor Galea'i and some members of the Church, Defendant being one of the members who disagreed with Pastor Galea'i.

3. In February, 1980, the dispute escalated, and at the direction of Defendant, dirt was offloaded on the land in such manner as to restrict access to the house described above. Shortly thereafter, the Court held hearings and issued a restraining order.

4. No evidence was submitted to show that the Church is incorporated in this Territory as a domestic profit corporation, an eleemosynary corporation , or a foreign corporation.

CONCLUSIONS OF LAW

1."Petesa Congregational Christian Church in Samoa of Tafuna Village" was not a legal entity on February 7, 1978, and as such did not have the capacity to act as grantee of real property.

MEMORANDUM OPINION It appears to us that the threshold issue in this case is: Can title to real property pass to a corporation which is not in existence at the time of the conveyance? Because we hold title cannot pass under such circumstances, we conclude that the purported deed of conveyance signed on February 7, 1978, is void, thereby conveying no title whatsoever.

There being no statutory or case law on this issue in this jurisdiction or in the Federal system, we turn to state statutes and case law to determine the law of other jurisdictions.

Courts throughout the United States have held that a valid deed of conveyance requires a grantee who is legally capable of accepting a deed at the time of conveyance. Any conveyance to one who is not capable of accepting title is void for want of a grantee capable of taking the estate conveyed. See generally 23 Am.Jur.2d section 47; 26 C.J.S. section 13. Specifically, it has been held in several jurisdictions that where a conveyance was made to a corporation which was not in existence at the time of the conveyance, title does not pass, and the deed is void. Allmon v. Gatschet (Mo.) 437 SW2d 70 (1969) is illustrative of these cases. This rule seems so well established that the court could find no jurisdictions contra to this position. Such a holding being in accord with the general, common law and consistent with related statutory provisions in American Samoa, (1) we [1ASR2d25] are persuaded by the rationale and adopt it as the rule on this issue in this Territory.

ORDER

IT IS ORDERED that the Plaintiffs take nothing, that the action be dismissed on the merits, and that defendant recover of the Plaintiffs his costs of action.

1. 14 ASC is the general corporation law in American Samoa and details the steps required to create a corporation. 14 ASC 202 prohibits corporations from acquiring land without the approval of the Governor. 14 ASC 609 makes it unlawful for a foreign corporation to conduct business in American Samoa without complying with the provisions of 14 ASC 601 et seq. Additional procedures to be followed by corporations acquiring land are contained in 27 ASC 203. These statutes are but part of an elaborate statutory and constitutional system of laws designed to protect the communal land system here in American Samoa. That being the law, this Court will not allow groups of individuals to acquire land by circumventing this established system.

**********

Yandall; Prosch v.


EDMUND J. PROSCH, Appellant,

v.

AGNES GABBARD and BARBARA YANDALL, Appellees.

High Court of American Samoa
Appellate Division

AP No. 11-79

November 21, 1980

__________

Determination of title to real property may involve complex issues of law and custom and should be avoided, if possible, in action for eviction which generally requires determination only of superior right to possession.

Before McNICHOLS*, Acting Associate Justice, presiding, NIELSEN*'*, Acting Associate Justice, MURPHY, Associate Justice, POUTOA, Associate Judge, and SEVAAETASI, Associate Judge. [1ASR2d42]

PER CURIAM.

This is an appeal from a decision and judgment entered February 21, 1979,evicting appellant Edmund Joseph Prosch by May 1, 1979 from a house he was occupying on land known as "Lalomago" in the village of Leloaloa. For the reasons stated below, we conclude that Appellees have a superior right to possession of the property in question and affirm the judgment of the trial court.

In 1941, Chief Uti conveyed to appellee Barbara Yandall, by deed approved by the Governor of American Samoa, approximately one-quarter acre of land. In1945, after receiving the permission of appellee Barbara Yandall, her son Leonard built a two-story structure on the land and resided there for about 30years. The trial court found that Leonard only had permission to construct the house, reside therein, and use the land for a period of time not specified. In effect, what Leonard had was an oral license which could be revoked at anytime. Tago v. Leota (1963) 4 ASR 341, 346. By bill of sale dated January 22,1975, Leonard Yandall purportedly conveyed title to the house he constructed to Donna Marie Prosch and appellant Edmund Joseph Prosch, his niece and nephew, as tenants in common. Consideration of $5,000 was furnished by Edmund James Prosch, father of the grantees and guardian of Donna Marie. The bill of sale, in effect, guaranteed the grantor's title and was recorded with the Territorial Registrar. Appellee Yandall did not object to this sale at the time. In 1977, appellee Yandall conveyed "Lalomago" by warranty deed to appellee Gabbard for consideration of $1 and love and care. The trial court concluded that "Lalomago" is individually-owned land and has been so since 1941, when Chief Uti, the senior matai of the Uti family, conveyed the land.

On appeal, both parties are arguing that ownership of the land is in dispute and that one or the other of them should be declared the individual owner of the land. In claiming ownership, both parties rely on the 1941 deed from Chief Uti to appellee Yandall. We find that the evidence was insufficient for the trial court to determine ownership of the land. Additionally, the following legal issues were raised but not briefed on appeal: Was the deed executed by Chief Uti. in 1941 valid? Does a matai have the power to transfer communal land to individuals in fee simple? If he does have that power, can the land become individually-owned? The trial Court need not have decided that issue, and in fact should not have because ejectment involves only a possessary right. Sun Oil Co. v. Fleming (l0th Cir. 1972) 469 F.2d 211. Ordinarily, actions for eviction involve only the right to possession and not title to the property. Gellespie v. Windust (D.C. Alaska 1956) 143 F. Supp. 555, 560. In the case at bar, we conclude that because of the insufficiency of the evidence and the lack of legal justification, any decisions made by the trial court which may be interpreted as determining title to the land were dicta. After having heard the evidence and observed the demeanor of the witnesses, the trial court concluded that Appellees have the superior right to possession, and we find that there was sufficient evidence to support the findings upon which that conclusion was based.

We affirm the judgment of the trial court which evicts Edmund Joseph Prosch from "Lagomago," make no ruling as to title to the land "Lalomago," and repeat that any reference to title to the land in question in the decision of the trial court is dicta.

The decision and judgment of the trial court is AFFIRMED.

**********

*Honorable Ray McNichols, United States District Court Judge, District of Idaho, sitting by designation of the Secretary of the Department of the Interior.

**Honorable Leland C. Nielsen, United States District Judge, Southern District of California, sitting by designation of the Secretary of the Department of the Interior.

American Samoa Gov’t v. Ybarra,


AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

STEVEN J. YBARRA, Defendant.

High Court of American Samoa
Trial Division

[1ASR2d93]

CR No. 100-82

May 17, 1983

__________

American Samoa's constitutional provision regarding reading and publication of bills does not require that an act of Congress adopted by reference be read and published anew.

Incorporated penal provision providing adequate notice of what is prohibited is not unconstitutional.

MURPHY, Associate Justice.

Defendant has been charged with two counts of willful failure to file an income tax return. He moves for dismissal, alleging that ASCA section 11.0413 is invalid. ASCA section 11.0413 is part of an enactment adopting the Internal Revenue Code of 1954 (hereafter "the Code") for taxation in American Samoa. It provides as follows:

Criminal Offenses. Any act or failure to act with respect to the American
Samoa income tax which constitutes a criminal offense under Chapter 75
of subtitle F of the United States Internal Revenue Code of 1954, as adopted
by this Chapter, is an offense against American Samoa and may be
prosecuted in the name of American Samoa by the appropriate officer thereof.

Ybarra first claims that the statute is repugnant to Article II, Sections 15 and 17 of the Revised Constitution of American Samoa. He next complains that ASCA section 11.0413 is impermissibly vague and that it constitutes an improper incorporation by reference of a substantive penal statute.

The pertinent portion of Section 15 provides:

...nor shall a bill become a law unless the same shall have been read on two
separate days in each house previous to the day of the final vote thereon.

Section 17 inclusively reads:

Amendments Revisions by Reference. No law shall be amended or revised
by reference to its title only; but in such case the act, as revised, or section
or subsection as amended, shall be re-enacted and published at full length.

Defendant's Section 15 argument asserts that the Code was never read at the Fono. His Section 17 argument alleges that incorporation of the Code constituted an amendment or revision thereof which required that it be republished anew as part of the American Samoa Code. Neither argument is persuasive.

A constitutional provision requiring publication of an amended act in its new form does not require publication of a law which has been incorporated by a new act. State ex rel. Washington Toll Bridge Authority v. Yelle, 200 P.2d 467 (1948). Such a constitutional prohibition must be specific, as it is in the North Dakota Constitution, Art. III, Sec. 64:

...but so much thereof as is revised, amended or extended, or so incorporated
shall be re-enacted and published at length (emphasis added).

Mr. Ybarra's Section 15 argument is superfluous in that he has presented no evidence indicating that the code was not read as assertedly required, Public officials are presumed to have acted legally. Nevertheless, a constitutional provision regarding the reading of a bill does not require [1ASR2d94] that everything which is to become a law by the adoption of the bill shall be thus read; it is enough to read the bill alone. Tanner v. Premier Photo Service, Inc., 125 SE2d 609 (1962). A reading and publication requirement for referential legislation would eliminate incorporation in some instances, eg., ASCA section 1.0201(2) (United States laws); ASCA section 1.0201(4) (Common Law of England), and subvert its purposes in all others. See 1A Sutherland, Statutory Construction, 576 (convenience and efficiency). That result should not be occasioned through a tenuous construction of a procedural provision.

Defendant's vagueness contention asserts that "(a) citizen cannot, by reference to the code section (ASCA Section 11.0413), know what conduct is proscribed." It appears that Section 11.0403 clearly indicates that subtitle F, Chapter 75 of the Internal Revenue Code of 1954 will govern violations of so much of the code as has been made applicable in American Samoa by ASCA Title 11. Mr. Ybarra's confusion could be more reasonably directed to other sections of Title 11, Chapter 4 [footnote omitted]. Section 403 is not vague.

The final inquiry raised by the instant motion is whether ASCA section 11.0413 constitutes an improper incorporation of a substantive penal provision. Defendant cites 1A Sutherland, Statutory Construction, section 22.25 as authority for the proposition that the incorporation is invalid. In discussing constitutional provisions like those in American Samoa's Constitution, that section states:

...it is generally held that these constitutional provisions have no
application to statutes adopting the provisions of prior acts by
reference in order to incorporate in the new act a substantive right
or duty or to provide a method of procedure for enforcing the
statute. Id. at 163 (citations omitted).

As such, there is nothing in American Samoa's constitution that proscribes incorporation of a statute which is substantive or penal. Nor is there any other body of law maintaining such a proscription. Defendant cites State v. Armstrong, 243 P. 333 (1926). That decision relied on New Mexico's constitutional limitation regarding referential legislation, and was not well-reasoned:

The Supreme Court of New Mexico has, however, by single eyed
devotion to the so-called "mischief" rule (the rule is Heydon's Case,
3 Co. 7 (1584)), absurdly concluded that an adoption into a statute
of that state of certain provisions of the National Prohibition Act by
a specific reference was a violation of the state's constitutional
proscription against extension by reference. Read, "Is Referential
Legislation Worthwhile?", 1A Sutherland, Statutory Construction
529, 545 n.86.

American Samoa is not bound by New Mexico's constitutional limitations or the decisions of her courts. Armstrong is not persuasive and neither is Defendant. When an issue regarding referential legislation is brought before this court, the same shall be judged in contemplation of three potential evils. The first is whether the duties created by the incorporation are unduly difficult to decipher. See Knill v. Towse (1889) (quoted at Sutherland, supra, p. 535). The second evil concerns whether the incorporation acted to conceal from legislators the true impact of the adopted law. See Quinlan v. Houston & Tex. Cert. Ry., 34 U.S. 738, 749 [1ASR2d95] (1896). The third evil involves the potential for the improvident enactment by incorporation of legislation which has not been amply contemplated. See Manchester Township Supervisors v. Wayne County Commissioners, 101 A. 736 (1917).

None of those potential evils is involved in the instant case. The duties created by the Fono's adoption, in a single chapter of a single title, of the income tax provisions of the Internal Revenue Code of 1954, save for insignificant exceptions, are no more difficult to decipher then is the revenue code itself. Presumably, a tax code drafted entirely by the Fono would have been no easier to interpret. Further, it is inconceivable that the Fono could have been unaware of the impact occasioned by the incorporation of a statute as popular as the 1954 tax code. That conclusion is buttressed by the subtle modifications effected with the referential adoption. Finally, it cannot rationally be asserted that the Internal Revenue Code of 1954 has not been the subject of meticulous contemplation, not by the Fono, but by the legislature ultimately responsible for every Fono enactment; the United States Congress [Footnote omitted]. The incorporation by reference of the penal provisions of the 1954 tax code are not improper.

**********

 

American Samoa Gov’t; Vaela'a v.


TUILEFANO VAELA'A, Appellant,

v.

AMERICAN SAMOA GOVERNMENT, Appellee.

High Court of American Samoa
Appellate Division

AP No. 33-82

January 4, 1983

__________

Electronic recording device satisfies statutory requirement for a stenographic record and a trial de novo is not required for an appeal from district court when an adequate record has been made below.

Before GARDNER, Chief Justice, MURPHY, Associate Justice, TAUANU'U, Associate Judge, and POUTOA, Associate Judge.

GARDNER, Chief Justice.

In this case we hold that the electronic recording device used in the District Court suffices for compliance with section 3.0309 ASCA.

Section 3.0309 reflects a common judicial practice involving appeals from inferior courts to Appellate tribunals. If there is an adequate record, normal appellate practices prevail, with a review of the record for correctness or in some cases for institutional or precedential purposes. If there is no adequate record, then of course, a trial is essential because without an adequate record there is nothing to review. So much for the obvious.

To carry out this concept, section 3.0309 provides that where there is a "stenographic record"the appellate division of the High Court reviews the record. If there is no such record a trial de novo is mandated in the trial -- division of the High Court. Defendant contends that since the phrase "stenographic record" is used, an electronically produced record does not comply with the section. We disagree. The operational word is "record." "Stenographic" is merely descriptive.

Appellant Tuilefano Vaela'a was charged with disturbing the peace in violation of ASCA 46.4501. He was found guilty in a bench trial in the District Court. There was a stenotype operator present taking notes for part of the proceedings. Part of the proceeding was recorded by means of an [1ASR2d71] electronic recording device maintained and operated by a court employee. Notice of Appeal was filed and the defendant's motion for a trial de novo was made. We deny that motion.

At one time in our judicial history, stenographers were used as court reporters and a few doddering oldsters (including the author of this opinion) can remember when stenographic court reporters squiggled madly with either Pittman or Gregg hieroglyphics on stenographic pads to maintain a record of all testimony. This practice fit the literal description of a stenographic reporter as the word "stenographic" is defined by Webster as writing in shorthand, stenography being the art or process of writing in shorthand. Shorthand notes were taken which were subsequently transcribed into typewritten records. Then, during the late 1930's or early 1940's, these stenographers were replaced by the more effective stenotype operators using machines to record speech by means of phonograms, by which a typed symbol is used to represent a word, syllable or single speech sound. After the operator takes down the "code" it is transcribed into a typed written record like that of the early stenographic court reporters. The "record" is non-existent until the reporter transcribes, types .and certifies it. The point of all this is that long before the enactment of section 3.0309 in 1979, when the District Court was established, stenographic reporters were a thing of the past.

Now, over the violent protest of court reporters (who face loss of employment) some jurisdictions are using electronic recording devices. These were pioneered in the military and adopted for the first time for civilian use in the then territory of Alaska. Other jurisdictions, for example Hawaii, have followed. Under this process the electronic recorder actually reproduces the oral statement of the individual which is then reduced to a written record. The system employed by the District Court is an electronic recording device designed specifically for use in the courtroom. (Model Lanier). It utilizes a four track system with a separate erasure mechanism, thereby insuring against an accidental destruction of the tape material.* The court personnel are trained in the system's maintenance and operation. For additional accuracy the reviewing court can, if it wishes, actually listen to the spoken words.

The point of all this, is that the phrase "stenographic record" is a phrase of art which realistically can only mean a process by which an accurate record may be made. Literally construed, no record since the late 1940's could be classified as one by a "stenographic reporter" since that process had long since given a way to the stenotype operator. The key word is "record" not "stenographic".

Legislation is enacted in broad strokes and interpreted and applied by courts and administrative agencies in a realistic manner in order to adjust to changing conditions, at the same time keeping intact the basic purpose of the Legislation. Here, the basic purpose is the preservation of a record. This is done by the use of the electronic recording device. It appears to us that the basic purpose of the section is the preservation of a record, a record that may be produced by any of several methods but results in the same product ---a typewritten, certified transcript of the court proceedings.

Therefore, the defendant's request for a trial de novo is denied. The appellant is given twenty days to obtain a transcript of the proceedings in [1ASR2d72] the District Court, thereafter the appeal is to follow normal appellate process.

**********

*If Nixon had used one he might still be president.

American Samoa Gov’t v. Salvage Pacific, Ltd.,


AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

SALVAGE PACIFIC, LIMITED, Defendant.

High Court of American Samoa
Trial Division

CA No. 61-83

May 31, 1983

__________

Single ship refloating transaction does not constitute doing business within meaning of statute requiring permit.

GARDNER, Chief Justice.

Defendant moves for an order dismissing this action brought by the Government of American Samoa against a Fijian Corporation. The Government alleges the Defendant was transacting business in the Territory in violation of ASCA section 30.0305 , which provides:

No foreign Corporation may transact any business in American Samoa
without first procuring a permit from the Governor to do so.

Defendant seems to contend, first, that it performed a single salvage operation at the behest of a Korean customer (ie: re-floating a partially sunken fishing boat in Pago Pago harbor). That its work was completed within 8 weeks, and it never intended nor did it in fact undertake any other business in the Territory. That it, in fact only had minimal contact. Defendant argues that ASCA section 30.0305 is intended to regulate businesses which are transacted on a more permanent or regular basis. Furthermore, Defendant contends ASCA section 30.0314 is a penal statute, which therefore should be strictly construed, and it provides only for a violation of the terms of the permit, not for operation without any permit [1ASR2d99] at all.

First then, we must determine whether Defendant was "transacting business" within the meaning of the statute. The term "transacting business" is not susceptible of precise definition automatically resolving every case; each case must be dealt with on its own circumstances to determine if a foreign corporation has engaged in local activity or only in interstate commence. Materials Research Corp. v. Mertron, Inc., 64 N.J. 74, 312 A.2d 147. The concept of minimal contacts for jurisdictional purposes was explored in International Shoe Co. v. State of Washington, 326 U.S. 310. Certainly in the case before us, the Defendant has submitted itself to the jurisdiction of the Courts of this Territory, but was it "doing business?" It would seem not to us and we so hold. In order to require a foreign corporation to qualify under our statute it must do more than perform a single act for a customer within the territory. For additional support the definition of "business" contained in ASCA section 27.0202 specifically exempts casual sales or personal service contracts. Engaging in or carrying on a business" in that same statute is defined as follows: "...on a continuing basis although one act may be sufficient if circumstances show a purpose to continue..." (emphasis added).

This is not to say that while the Defendant is not required to have obtained a permit under ASCA section 30.0305 it may not have incurred liability as to taxation. The standards there are likely to be quite different. Therefore, the Court will not dismiss the Government's complaint, but will strike those portions alleging a penalty for violation of Title 30 Chapter 03 ASCA and allow the Government 10 days to amend its complaint to state a claim for taxes due on income earned in the Territory.

**********

American Samoa Gov’t; Rees v.


SIMEAATI REES, Appellant,

v.

AMERICAN SAMOA GOVERNMENT, Appellee.

High Court of American Samoa
Appellate Division

AP No. 24-79

November 28, 1980

__________

In prosecution of driver for act of passenger government need not prove that driver knew part of passenger extended beyond interior of vehicle.

Before MIYAMOTO, Chief Justice, presiding, McNICHOLS*, Acting Associate Justice, NIELSEN**, Acting Associate Justice, POUTOA, Associate Judge, and SEVA'AETASI,Associate Judge.

PER CURIAM.

This is an appeal from a finding by the trial court that Appellant was guilty of a violation of 22 ASC 1002.1. The sole issue on the appeal is whether the government must prove at the trial that the driver of a vehicle knows a passenger in or on his vehicle has his body extending beyond the interior portion of the vehicle. We hold that the statute in question defines a crime we term "malum prohibitum" and which was within the proper legislative ambit of the Fono [1ASR2d48]and that it is not necessary for the government to prove knowledge on the part of the driver in order to support a finding of guilty.

**********

*Honorable Ray McNichols, United States District Court Judge, District of Idaho, sitting by designation of the secretary of the Department of the Interior.

**Honorable Leland C. Nielsen, United States District Court Judge, Southern District of California, sitting by designation of the Secretary of the Department of the Interior.

American Samoa Gov’t; Aumua v.


ATAPANA AUMUA, Appellant,

v.

GOVERNMENT OF AMERICAN SAMOA, Appellee.

High Court of American Samoa
Appellate Division

November 21, 1980

AP No. 25-79

__________

District court lacks jurisdiction to try unsworn complaint.

Before MIYAMOTO, Chief Justice, presiding, McNICHOLS*, Acting Associate Justice, NEILSEN**, Acting Associate Justice, POUTOA, Associate Judge, and SEVA'AETASI,Associate Judge.

PER CURIAM.

This is a direct appeal from the District Court on the issue of whether the defendant in a traffic case may be tried upon an unsworn complaint. Pursuant to law, the police officers of the Government of American Samoa utilize a Uniform Traffic Ticket and Complaint which must be sworn to by the citing officer before a person authorized to administer oaths.

22 ASC 2409 (b) provides in part:

Before any offense shall be heard by the court, or any plea taken,
there shall be filed with the clerk of the court a complaint signed
and sworn to by a police officer of American Samoa which shall
set forth the particulars of the alleged offense.

The law is clear. The requirement of a sworn complaint is jurisdictional. The District Court, in this case, had no jurisdiction to proceed with the trial and to sentence the Defendant.

Accordingly, the conviction of the Appellant-defendant is reversed.

 

**********

*Honorable Ray McNichols, United States District Court Judge, District of Idaho, sitting by designation of the Secretary of the Departemnt of the Interior.

**Honorable Leland C. Nielsen, United States District Court Judge, Southern District of California, sitting by designation of the Secretary of the Department of the Interior.

American Samoa Gov’t v. Stucka,


AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

TAVILI (aka) STUCKA, Defendant.

High Court of American Samoa
Trial Division

CR No. 103-82

January 12, 1983

__________

Legislature proscribed possession of all species of marijuana in statute specifying Cannabis Sativa L.

GARDNER, Chief Justice.

In this case the prosecution offered evidence by way of a forensic chemist that the substance found in the possession of the defendant was Marijuana. The defendant then offered evidence by an agronomist that marijuana is Cannabis and there are three recognized types of Cannabis of which Cannabis Sativa L is but one. Then, based on the fact that 13.1001 ASCA defines Marijuana as "all parts of the plant Cannabis Sativa L.," he moved for a dismissal on the grounds that there was no proof that the substance identified by the chemist as Marijuana wasCannabis Sativa L. That motion was denied and a proposed instruction to the same effect refused. I observed that the matter had been litigated thoroughly and that the contention was without substance. However, I chose not to delay a jury trial to research the matter. Nevertheless, counsel are entitled to an explanation of the basis for the court's ruling. That explanation follows.

The phrase Cannabis Sativa L. has uniformly been held to have the same popular or common meaning as Marijuana. Some botanical taxonomists consider Marijuana a polytypical plant and recognize as many as four species of Marijuana other than Cannabis Sativa L. Others hold that Marijuana is purely monotypic in species but with several varieties. Regardless of the merits of this scientific controversy, the United States Supreme Court has flatly held that there is only one species of Marijuana. Leary v. U.S., 395 U.S. 689, 77 S.Ct. 1532 (1957). Serious constitutional Due Process and Equal Protection problems arise with any other interpretation (People v. Alstyne, 46 Ca(3) 917, 121 Cal.Rep. 363). Therefore, the proper holding is that the term Cannabis Sativa L. must be construed as a general term which includes all plants popularly known as Marijuana that contain the toxic agent THC (People v. Alstyne, supra, 46 Ca(3) 917, 121 Cal.Rep. 363; People v. Hamilton, 105 Ca(3) 117, 166 Cal.Rep. 153; People v. Spurlock, 112 Ca(3) 326, 169 Cal Rep. 320). Federal cases dealing with this subject reach the same conclusion (U.S. v. Walton, 514 F(2) 201, U.S. v. Honneus, 508 F(2) 566, and cases from other Federal circuits listed at page 155 of People v. Hamilton, supra, 166 Cal.Rep. 153).

In enacting 13.1001 ASCA the 0 Legislature intended to proscribe [1ASR2d73] possession of all species of Marijuana. The evidence of the agronomist was irrelevant and should have been objected to by the prosecution on that ground.

**********

American Samoa Gov’t v. Simoa,


AMERICAN SAMOA GOVERNMENT,
Petitioner,

v.

SUAFALA SIMOA aka SUAFALA WILLIAMS,
Respondent.

High Court of American Samoa
Trial Division

CR No. 34-81

May 13, 1983

__________

Although power to govern derives from Congress, government of American Samoa possesses characteristics of a state and local government, and may therefore prosecute felonies by information rather than indictment.

MURPHY, Associate Justice.

Petitioner was informed against at a preliminary hearing and was thereafter convicted of murder in a jury trial. He seeks release by writ of habeas corpus on the ground that he is entitled to indictment by a grand jury. On appeal, the case was remanded to determine whether indictment by grand jury would be anomalous to the culture and conditions prevailing in [1ASR2d92] American Samoa. The Court finds that grand jury proceedings would not be anomalous and will thereof consider the merits of the petition.

The Constitution bars prosecution by the United States for a capital or infamous crime except upon indictment by a grand jury (Amend. V). The states are not bound by that provision, and may subject an accused to prosecution in any manner consistent with due process and fundamental fairness. Petitioner asserts that because American Samoa is an unincorporated United States territory, rather than a state, he could not be prosecuted except upon indictment and that therefore his conviction upon charges brought by information must be reversed. Petitioner does not claim that his preliminary hearing was unfair or that it denied him due process of law.

United States sovereignty over its territories vests Congress with the powers of both a local and a national government and it can do for a territory whatever a state can do for itself or one of its political subdivisions. Cincinnati Soap Co. v. U.S., 301 U.S. 208 (1937); American Insurance Co. v. 356 Bales of Cotton, 26 U.S.511 (1828). Governance of a territory rests primarily with Congress and secondarily with such agencies as Congress may establish for that purpose. Snow v. U.S., 85 U.S. 317 (1873). The power which Congress may thus delegate, subject to subsequent revision or revocation, includes all matters which could be regulated by the laws of a state. District of Columbia v. John R. Thompson Co., 346 U.S. 100 (1953). Congress nevertheless retains all legal authority over the people of this territory and all departments of its government, and may legislate directly for the territory, abrogate its laws, void a valid act, or validate a void act. Inter-Island Steam Nav. Co. v. Territory of Hawaii, 305 U.S.306 (1938); First Nat. Bank v. Yankton County, 101 U.S. 129 (1879).

Through delegation of its authority, Congress has entrusted the governance of American Samoa with the Department of the Interior. The Department of the Interior has approved the adoption of a constitution, the formation of a local government, and the promulgation of laws for American Samoa. This approval could be rescinded at any time. The Government of American Samoa, its policies and departments, in other words, exist solely because Congress or the Department of the Interior has not yet said that they do not exist. ASCA 46.1220 is among the laws which have, by silence, been endorsed by Congress and the Department of the Interior. It provides for preliminary determinations of probable cause by information in all felony prosecutions. The procedure is fair and consistent with due process guarantees. It regulates prosecutions for violations of the American Samoa Code Annotated only and has no impact beyond the territory. It is clear that Congress or any authorized agent thereof may enact any provision in regard to a territory that could otherwise have been enacted by a state.

ASCA46.1220, providing for prosecution by information, is not unconstitutional as applied in American Samoa. The petition is dismissed.

**********

Jennings v. Tavai,


KALAEA aka TALAEA JENNINGS, et.al., Appellants,

v.

TAVAI, K.V. et.al., Appellee.

High Court of American Samoa
Appellate Division

AP No. 25-82

March 30, 1983

__________

When parties maintain that they have settled a claim after trial had begun but thereafter submit separate proposed judgements, court may treat submissions as cross motions for summary judgement.

Before GARDNER, Chief Justice, presiding, KING, Acting Associate Justice, WILKINS*J(Acting Associate Justice, FAOA, Associate Judge, and [1ASR2d82] POUTOA, Associate Judge.

PER CURIAM.

Kalaea Jennings appeals a judgment filed on June 28th, 1982 respecting certain communal lands known as Gataivai in the village of Utulei, a portion of Fagatogo. Tavai Kaleopa is a senior Matai having pule over several lesser Matai's and over substantial parcels of land, at least including the land "Gataivai." See Nomaaea and Tavai Esera v. Lauulusa, 2 ASR 619 (1951).

This case begins with an action for eviction filed by Plaintiff/Appellee on March 7, 1981. A hearing was held on March 29, 1982. The pertinent facts were not in dispute. Defendant/Appellant was at one time, in the absence of the Tavai senior Matai, given permission to use and build on the Tavai communal land by a lesser Matai of the Tavai family:

The Court: Number 2 being received. Apparently, there's no dispute that
the land is Gataivai Is there any dispute that Gataivai is
communal land df the Tavai family?
Mr. Tuinei: To tell you the truth, your honor---
The Court: It's always a good policy.
Mr. Tuinei: My clients have been led all along ---all these years that land
was Laulusa land and they served that Matai and he executed
the separation agreement.
The Court: But there's no dispute that this communal land of --- that
Gataivai is communal land of the Tavai family. You're claiming
he has a separation and valid reasons to construct his house
and it is with the permission of Matai Laulusa,is that right?
Mr. Tuinei: Yes.

Transcript of Trial Proceedings at 17.

It became apparent that the dispute at trial turned essentially upon whether defendant was abiding by the terms which authorized his use of the communal land. After more testimony the court recessed and directed counsel to chambers. The court did not reconvene as the matter was settled at that time. Transcript at 23. By minute entry of March 29, 1982, counsel were to meet and prepare a stipulated judgment to be filed by April 2, 1982. On April 2, the court signed the "stipulated judgment" which had been submitted by Plaintiff/Appellee. On April 5, 1982, the Court granted Defendant/Appellant's motion to set aside the judgment on the asserted grounds that it was not stipulated and did not represent the settlement agreement. By order of April6, 1982, Defendant/Appellant was to submit an alternative judgment if counsel were unable to stipulate. On May 27, 1982, Defendant/Appellants filed their proposed judgement. By order of June 28, 1982, the court below rejected that judgment as being inconsistent with matters agreed upon by counsel at trial and entered judgment in accordance with the Judgment submitted by Plaintiff/Appellee on April 2, 1982.

Defendant/Appellant's Motions for a new trial or Judgement notwithstanding the verdict were denied on August 2, 1982.Defendant/Appellant noticed this appeal on August 10, 1982. It was timely prosecuted thereafter.

The issue on appeal is whether the court may properly enter judgment where the parties allege that they have settled the matter and thereafter submit separate proposed findings.

Trial had begun and was recessed at the request of counsel. Transcript at p. 23. Because counsel thereupon indicated to the court that [1ASR2d83] the matter had been settled it was not reconvened. At all times thereafter, until the entry of final judgment, neither party asserted that the settlement agreement had failed. Instead, counsel each submitted a proposed findings and judgment. It was an inherent implication of this procedure that the court would enter judgment that was consistent with the facts previously found and fair to the parties. It would have been impossible for the court to enter judgment consistent with both submissions. We note that the pertinent aspects of the judgment appealed from are favorable to Defendant/Appellant. That judgment provides that the Jennings family will retain use of the land with all rights and privileges so long as they serve the Matai and refrain from conducting themselves in a disrespectful manner. Those requirements, and all other provisions of the judgment having legal significance were not disputed. It must be presumed that any conflicts that were presented were resolved in favor of the judgment. The record does not support a claim that it was clearly erroneous.

It is apparent, however, that this case does not present an appeal from a stipulated judgment. The court below had before it the pleadings of the parties. Both counsels indicated that the matter had been settled in accordance with facts elicited in the partial trial and oral representations made in chambers. Counsel, however, submitted separate proposed judgments. At that point, the court was actually considering cross motions for judgment on the pleadings which had been supplemented by matters outside the pleadings, hence, crossmotions for summary judgment. SeeRule 56, Federal Rules of Civil Procedure. We find no error in the judgment thus entered.

Affirmed.

**********

*Honorable Samuel P. King, United States District Court Judge, District of Hawaii, sitting by designation of the Secretary of the Interior.

**Honorable Phillip C. Wilkins, United States District Court Judge, Northern District of California, sitting by designation of the Secretary of the Interior.

Fanene; Te'o v.


UIVA TE'O, Appellant,

v.

FANENE FAMILY, FONOTI AUFATA, SALOFI R. SOTOA
PEMERIKA TAUILIILI, and MOETAI LEOMITI, Appellees.

High Court of American Samoa
Appellate Division

AP No. 13-78

February 25, 1980

__________

Term "natural justice and convenience" embraces due process of law, but procedures adopted to accommodate complex litigation which do not prejudice the opportunity of any party to be fully and effectively heard do not offend due process.

Before MURPHY, Associate Justice, presiding, SCHWARTZ*, Acting Associate Justice, SHRIVER**, Acting Associate Justice, TA'IAU, Associate Judge, and ASUELU, Associate Judge.

PER CURIAM.

This case came before the trial division of this court as a consolidation of 11 separate cases involving disputes over title to a large tract of land approximately 265 acres in area. In preparation for the trial, the court held three pre-trial conferences during which the procedure for the trial was established. This procedure was agreed to by all parties; and on October 24, 1977, what was to be a two week trial began. Appellant made a motion for a new trial on substantive and procedural grounds~ said motion being denied by the trial division. Appellant now appeals the decision of the lower court on the ground that the procedure used below denied appellant due process of law. For the reasons discussed below, the judgment of the trial court is affirmed.

Appellant claims that the procedure adopted by the trial court denied him the right to cross-examine all witnesses. Because of this Appellant argues he was deprived of a full hearing or opportunity for a full hearing and thereby denied due process of law. In support of his proposition, counsel for appellant cites several U.S. Supreme Court cases. Although they do support the broad hypothesis, they do not really address the issue at bar.

Due process of law has never been a term of fixed and invariable content (Federal Communications Commission v. WJR, The Goodwill Station, 337 U.S. 265 (1949)). Ordinarily, the courts do not attempt to define in a few words what is meant by this term, but are disposed to ascertain their intent and application by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require (Wolf v. People of the State of Colorado, 338 U.S. 25 (1949)). It is well established that a litigant who is not permitted a full hearing or opportunity for a full hearing has not been afforded due process of law. The issue presented in this case is whether or not this Appellant was deprived of an opportunity for a full hearing.

The procedural limitations section 412(b), which states in act in each case in such manner for this territory are contained in 5 ASC part, "...the Land and Titles Division may as it considers to be most consistent with [1ASR2d4] natural justice and convenience. Whether or not "natural justice and convenience" encompasses due process of law is an issue which has never been resolved by this Court.

The fifth amendment to the U.S. Constitution and Article I, Section 2 of the Revised Samoan Constitution both state that no person shall be deprived of his property without due process of law. To permit the Land and Titles Division of this court to handle each case in any manner it felt convenient would permit that court to make up its own rules as it wept along, with no discernible standard. This is particularly offensive here because the issues most frequently presented in the Land and Titles Division are issues which most affect the people of American Samoa, namely the land on which they live. To permit someone to take another's home and surrounding property without due process of law goes against the very foundation upon which both American law and natural justice are based. We hold therefore that the concept of due process of law is encompassed within the meaning of natural justice and convenience as used in 5 ASC 412(b).

The question presented then is did the procedure established by trial court afford this appellant due process of law?

In the case at bar, the trial court directed each person who claimed land within the 265 acres to file a claim with the territorial registrar. All eligible people were then given 60 days to object to all applicants' claims of land. Prior to trial, the order in which the claimants would present their cases was established. Each applicant for registration of title was permitted to present his case in chief. All persons objecting to that claim were permitted to cross-examine each witness after his direct testimony. Each applicant, when his turn came, was permitted to present his case in full, by calling all witnesses he felt necessary. Adverse witnesses could be declared hostile witnesses at the outset of the questioning if counsel deemed it necessary. Objectors with no claim were given opportunity to present their testimony also.

The crux of Appellant's argument is that he was not permitted to cross-examine certain witnesses immediately after their testimony. Procedurally, this was not permitted because Appellant had not objected to that applicant's claim of land. As noted above, counsel for Appellant was permitted to call any witnesses he felt necessary when it came time to prove his claim to the land in dispute. And in fact, he did call one of the opposing parties as a hostile witness and was permitted to cross-examine him at that time.

Having considered the briefs filed in this case, the partial transcript of the case below, and the argument of counsel, we find that the procedure followed by the trial court did not prejudice the Appellant in any way, and this procedure did not violate either the notions of convenience and natural justice, or due process of law. That being the case, the judgment of the trial court is affirmed.

**********

*Honorable Edward J. Schwartz, Chief United States District Court Judge, Southern District of California, sitting by designation of Secretary of the Department of the Interior.

**Honorable Paul D. Shriver, United States District Court Judge, Retired, Territory of Guam, sitting by designation of the Secretary of the Department of the Interior.

 

Fala v. Fala


FA'AOSO MAFUA FALA, Petitioner,

v.

SOKELATI FALA, Respondent.

High Court of American Samoa
Trial Division

DR No. 02-82

August 22, 1983

__________

Congressional response to McCarty case allows each jurisdiction to resolve issue of divisibility of military pension in divorce action in a manner consistent with local law. Presumption favoring equivalent distribution of marital assets in American Samoa pertains as well to military pension earned during the marriage.

GARDNER, Chief Justice.

By minute entry dated October 28, 1982 the parties in the above entitled matter were granted an absolute divorce. Various properties were divided among Petitioner and Respondent at that time, and an order entered in regard to child support and spousal maintenance. The court reserved ruling, however, on the division of Respondent's military pension until such time Congress shall have reacted to the decision of the United States Supreme Court in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589, (1981).

In deference to Congress and the superiority of federal law, the McCarty court held that military retirement benefits were not divisable in state courts upon the dissolution of a marriage. Congress promptly manifested a contrary intent and eventually enacted the Uniformed Services Former Spouses Protection Act. The key provision in that law is 10 USC 1408(c)(1) (Supp. 1983), which states:

Subject to the limitations in this section, a court may treat disposable
retired or retainer pay payable to a member for pay periods beginning
after June 25, 1981 either as property solely of the member or as
property of the member and his spouse in accordance with the law
of the jurisdiction of such court.

The proposition that both parties to a marriage contribute equally to the union can hardly be challenged. It has therefore been the policy of this court to divide the property acquired during a marriage equally among the spouses upon dissolution. Congress has specifically determined that the High Court of American Samoa is competent to divide a military pension under the circumstances presented by this case. 10 USC 1408(a)(1). The rule generally prevailing in community property states provides that the portion of a pension earned during the marriage is divisible when the marriage fails. A like rule now pertains in American Samoa.

It appearing that Petitioner and Respondent were married during Respondent's entire term of military service, Petitioner is entitled to one half of the pension earned if and when it becomes payable. Her entitlement shall not be affected by her remarriage, but her interest cannot be disposed of by will or any other type of transfer. 10 USC 1408(c)(2). Having determined Petitioner's entitlement, we turn now to the means by which it [1ASR2d114] may be realized. In overruling McCarty, Congress provided procedures for enforcing the substantive rights it created. Because the duration of both the marriage and the military service in this case was more than 10 years, these direct enforcement procedures are available to Petitioner. 10 USC 1408(d).Counsel is directed to 10 USC 1408(b)(1)(A). That section provides that service is effected by forwarding a copy of this order to the secretary or designated agent of the appropriate service branch. The addresses of the respective secretaries are listed in the appendix to this order. Compliance with the congressionally mandated procedures and the regulations promulgated thereunder will result in direct payment to Petitioner of that portion of the pension to which she is entitled if and when the same becomes payable to Respondent.

WHEREFORE, IT IS ORDERED that Petitioner shall receive, during her lifetime, 50% of any military pension due and payable to Respondent.

IT IS FURTHER ORDERED that Petitioner's share of the pension be paid directly by the paymaster.

**********

Fairholt v. Mua'au,


CECIL FAIRHOLT, et. al., Plaintiffs,

v.

HIGH TALKING CHIEF AULAVA MUA'AU,
et. al., Defendants.

High Court of American Samoa
Land and Titles Division

LT No. 6-83

March 7, 1983

__________

Constitution forbids statute that restricts access to court in matters involving communal land to senior matai where disputed issue involves only a particular parcel assigned to plaintiff and matter cannot be otherwise resolved.

GARDNER, Chief Justice.

In this case we are asked to determine the constitutionality of section 43.1309 ASCA, which provides in part that only the Sa'o of a Samoan family is authorized to bring an action for an injunction in matters pertaining to communal land within his own family.

Plaintiffs, members of the family, have brought an action against the Sa'o on a matter concerning communal land. At this stage we know nothing of, nor are we concerned with, the merits of the case. Defendants have filed a motion to dismiss the complaint under this section. If the section passes constitutional muster, the action must be dismissed. If not, we will, at a later time, hear the case on its merits.

As we said in our preliminary ruling, the wisdom or folly of this legislation is of no concern to the court. It may be wise. It may be foolish. It may be "good." It may be "bad." The court can intervene only ;if the legislation is in clear violation of a specific constitutional provision.

Again, as we said in our preliminary ruling, this statute is clearly unconstitutional by statewise standards.

It is in violation of the U.S. Constitution in two respects.

First, it violates the due process clauses of the fifth and fourteenth amendments which provide that no one may be deprived of life, liberty, or property without due process of law. While due process is an elusive concept, unquestioned are the rights to notice and an opportunity to be heard. This section denies family members other than the Sa'o an opportunity to be heard on matters concerning communal land. To them the courthouse door is closed.

Second, it is clearly in violation of the equal protection of the laws provision of the fourteenth amendment since it denies equal protection of the law to those similarly situated. The Sa'o can bring an action concerning family lands. Individual family members cannot.[1ASR2d74]

While the Constitution of American Samoa contains no equal protection provision (probably in deference to the matai system) it does contain a due process clause (article I, section 2): "No person shall be deprived of life, liberty, or property without due process of law." (1)

We reject Defendants' contention that the unquestioned right of a family member to use communal land is not a property right under the due process clause of either the U.S. or Samoan constitutions. As the witness, attorney Michael Kruse, said, the right of a family member is a conditional entitlement to ownership no greater than that of another family member. This is a property right. Applying common law principles of private ownership of property in such a way as to deprive a Samoan of a constitutional right is simply unacceptable. As we will observe later, when the U.S. accepted this Territory it not only guaranteed the Samoan way of life, it also granted Samoans certain basic fundamental protections under the U.S. Constitution. We will not tolerate divesting a Samoan of his constitutional rights on such hair-splitting property distinctions. (It should be noted that equal protection pertains only to "persons, " not property. In an equal protection context property principles are academic.)

We also reject the contention that the due process clauses of the U.S. Constitution do not apply to communal land because the concept of communal land was unknown when those amendments were drafted and ratified. A constitution is a living, dynamic, vital document which, to be viable, must be capable of adjustment and adaption to new and challenging' circumstances. If a constitutional provision only spoke as of the day of ratification, a constitution would become, instead of a charter for the future, a moribund document which looks only to the past. The development of the U.S. Constitution under court interpretation to meet new and sometimes unexpected, or even unanticipated, developments belies this type of interpretation.

We also reject the testimony of the witness Salanoa that the due process clause of the American Samoa Constitution applies only to individually owned land. If the authors of that amendment had so meant they would have said that no person shall be deprived of life, liberty, or individually owned land without due process of law. "Property" obviously includes communal land, freehold land, individually owned land, and personal property of all kinds, types, natures, and descriptions. It is inconceivable that the authors of the American Samoa Constitution meant only to protect the owners of the 2 per cent of the land who hold their property in a status not recognized by the statutes of the Territory and which is becoming a matter of some Judicial questioning (See Justice Murphy's discussion of individually owned land in Leuma v. Willis, LT No.47-79 (1980)). [1ASR2d75]

The American Samoa Constitution applies to communal land.

Clearly Samoans are entitled to basic or fundamental rights under the U.S. Constitution. Included within these fundamental rights are due process and equal protection of the law. Craddick v. Territorial Registrar, AP No. 10-79 (1980); King v. Morton, 520 F.2d 1140; King v. Andrus, 452 F.Supp. 11. See also Laughlin, The Application of the Constitution in U.S. Territories, 2 Hawaii L. Rev.337; Harriman, The Impact of King v. Andrus, 5 Samoan Pac. L. J. 30; McBride, The Application of the American Constitution to American Samoa, 9 J. Intl. Law & Econ. 325. Equally clearly, Samoans are entitled to due process under the American Samoa Constitution.

Actually, this whole discussion is somewhat academic. The Appellate division of this court in Craddick, supra, held that the constitutional guarantees of due process and equal protection contained in the U.S. Constitution and the American Samoa Constitution are fundamental rights which apply to the Territory of American Samoa. Under elementary principles of stare decisis this court, as a trial court, must follow the holding of the late court. And that, to coin a phrase, is that. If the Defendants are unhappy with this holding their only recourse. is to the Appellate division.

Insofar as due process is concerned, if a statute denies a citizen of American Samoa due process of law under either the U.S. or the Samoan constitution it is unconstitutional.

Insofar as equal protection of the laws is concerned, we must address another issue.

Access to the courts is a fundamental right. Thus, the classification created by this section between a Sa'o and a non-Sa'o becomes a so-called suspect classification because it denies a non-Sa'o access to the courts.

The United States Supreme Court had adopted a "two-tier" test of classifications. McDonald v. Board of Education, 394 U.S. 802; Koremaster v. U.S., 323 U.S. 214. In ordinary equal protection cases not involving sp classifications or the alleged infringement of a fundamental interest, the classification is upheld it if bears a rational relationship to a legitimate purpose. But if a statutory scheme imposes a suspect classification, such as one based on race, or a classification which infringes on a fundamental interest, such as the right to pursue a lawful occupation or the right to vote or access to the courts, the classification must be closely scrutinized and may be upheld only if it is necessary for the furtherance of a compelling state interest.

Defendants invite our attention to the case of Morton v. Mancari, 417 U.S. 535, in which the court recognized the "unique legal status" of American Indians and determined that the complained of racial discrimination was not really a racial discrimination but a "preference" which was "reasonably and directly related to a legitimate non-racially based goal."

While all of this may appear to be a futile exercise in Judicial rhetoric, we will, in an attempt to be fair to all, apply each test to this legislation-furtherance of a compelling state interest, rational basis, and reasonable and direct relation to a legitimate goal.

While not expressed in so may words, the treaties by which Eastern Samoa became a part of the United States of America have been interpreted as guaranteeing the Samoan way of life.

The 1890 Treaty of Berlin, while providing generally for the protection in Samoa of the subjects of the Governments involved Great Britain, Germany, and the United States--forbade land alienation by natives and guaranteed the free right of the natives to choose their form of government "according to their own laws and customs." [1ASR2d76]

The cession of Tutuila in 1900 provided that the U.S. would respect and protect the individual rights of all the people dwelling in Tutuila to their lands and properties and that the chiefs of the towns were entitled to retain their individual control of the towns.

The cession of Manu'a four years later was more specific. It provided that the rights of the chiefs of the villages and of all the people concerning their property "according to their customs"shall be recognized.

The Constitution of American Samoa (art. I, sec. 3) provides that it is the policy of the government of this Territory to protect persons of Samoan ancestry against destruction of the Samoan way of life and language, contrary to their own best interests, and that the legislature shall enact such legislation as may be necessary to protect the lands, customs, culture, and traditional Samoan family organization of persons of Samoan ancestry.

The message is clear. The Samoan way of life must be protected. The issue is whether the statute involved in this case is necessary to carry out this mandate.

In support of this statute the Defendant called the hierarchy of the Matai system in American Samoa today--High Talking Chief Aulava; Paramount Chief, District Governor of the Western District, and former Chief Associate Judge Lualemaga; High Talking Chief and Senator Tuilefano; Manu'a District Governor and High Talking Chief Laolagi; High Talking Chief and former Chief Associate Judge Masaniai; Paramount Chief and former Associate Judge Misa; High Talking Chief Laie; High Talking Chief and District Governor of the Eastern District Faumunina.

Without exception these witnesses testified this legislation was necessary to protect the Samoan way of life. Without it said Aulava, the culture will collapse. Laie said the system will be demolished. Lualemaga said the custom will collapse and fade away. All felt that the concept of a family member suing a Sa'o was a disgrace to that Sa'o's reputation, an embarrassment to the Sa'o, and an expression of contempt ordisrespect for the Sa'o. All felt that generally Sa'os made wise, just, fair decisions. None thought a family member should sue a Sa'o.

Seldom has a court been confronted with such an array of witnesses. No one could doubt the sincerity and the honesty of the testimony they gave or of the unquestioned integrity of the men themselves. These were some of the leading citizens of the Territory, uniformly proud, serious, strong-minded, and commanding. When one observes this kind of leadership it is no wonder that the Matai system exists as a strong and viable concept. Whether their sincerely expressed concern for this statute has a sound basis in fact is the question.

The first witness for the Plaintiffs was John Kneubuhl, Professor of Samoan History and Culture at the local Community College. Mr. Kneubuhl was born in American Samoa and is of three-eighths Samoan blood. Professor Kneubuhl traced the 3000 year history of the Samoan culture and pointed out numerous "profound changes" in that culture, among them being the advent of Christianity in the 1800's and the most recent adoption by the Territory of so-called democratic principles of Government with a popularly elected Governor, Lieutenant Governor, and House of Representatives together with statutorily authorized court selection of Matais when the family cannot agree. In Mr. Kneubuhl's opinion the Samoan way of life is dynamic, not static, the essence of the Samoan way of life is respect for one's fellow man and allowing a family member to go to court to question a decision made by a matai won't hurt the system a bit. The matai is not a substitute for the family, he is the family voice. That voice may be questioned by an individual family member without endangering the system. [1ASR2d77]

High Talking Chief Pao Paoailua really didn't care whether a family member questioned his decision. If the family member wanted to sue, Pao Paoailua would say "Whatever you want to do." However, he did think this was a good law and one necessary to protect the system.

High Chief Lutali's credentials as a leader in the community could not be questioned--a legal practitioner, President of the American Samoa Bar Association, former Chief Associate Judge of the High Court, former President of the Senate, former Speaker of the House, and Chairman of the 1967 and 1973 Constitutional Revision Commission. Chief Lutali opined that this law was not necessary to protect the Samoan way of life. He pointed out that the Territory has gotten along without such a law for over 80 years. He felt that a member of the family should have a right to go to court to protect himself against arbitrary or capricious actions on the part of the Sa'o. Failing this recourse a Sa'o could actually deprive a family member of the use of family land which would be in violation of the Samoan way of life. He felt that when the Samoans accepted the American Governmental system it accepted all three branches--Legislature, Executive, and Judicial, and that all Samoans should have 'access to the courts regardless of title.

Albert Mailo, non-titled attorney, agreed. He testified that the matai system works and that the vast majority of matai decisions are fair, just, honest, and accepted by the whole family. He pointed out that the law was simply not necessary. He said that such suits were a rarity, that he only knew of 3 or 4 and that there had probably not been more than 10 such cases in the history of the Court.

Michael Kruse, attorney, agreed. He felt that the section was good law as to lawsuits between families but presented serious constitutional problems if applied within the family. He too felt that a family member should have a right to judicial review of the decision of a Sa'o and that this could be done without damage to the system.

High Chief Salanoa, a man with credentials in Government services comparable to those of Chief Lutali was the last witness called, being called as a rebuttal witness by the Defendants. A legal practitioner, a long time member of both Houses of the Legislature, a member of the Constitutional Commissions, Chief Salanoa is currently the Governor's Liason Officer with the Legislature. Unhappily for the Defendants, Chief Salanoa was an unmitigated disaster to their cause. (It is to be remembered that it was Chief Salanoa who testified that the due process provision of the American Samoan Constitution only applied to individually owned land.)

Chief Salanoa's testimony pointed out with crystal clarity the vice of this section.

All witnesses were in agreement that the vast majority of Sa'os carry out their duties responsibly and make family decisions that are fair, wise, and just. Nevertheless, human experience tells us that all human beings are not perfect and, applying that concept to this situation, it is not inconceivable that some Sa'os are capable of making a mistake. This principle seemed so obvious that it had been explored with only two witnesses, Chief Lualemaga and Chief Laolagi. Each conceded that a Sa'o could be in error and that a family member should have recourse to the courts but only after a .good faith attempt to work the matter out with the matai and the family. Nevertheless, for the overall good of the system they felt that the law was necessary for the protection of the Samoan way of life.

Not Chief Salanoa. He simply refused to concede that a Sa'o could ever be wrong. This "King can do no wrong" attitude went out first with the [1ASR2d78] Magna Carta and eventually with the French Revolution and the demise of the concept of absolute monarch.

As indicated, Chief Salanoa's testimony pointed up the vice of this statute. There may be Sa'os who share Chief Salanoa's attitude that nothing they do can be arbitrary, capricious, or even illegal. As long as that attitude exists, recourse to the courts would appear to be mandated.

In this respect, we accept, without reservation, the suggestions of Chief Lualemaga and Chief Laolagi that no family member should be allowed access to the courts until a good faith effort has been made to settle the problem with the Sa'o and within the family. We will rule that as a condition precedent to bringing an action against a Sa'o or other family member, the family member must plead and prove a good faith effort to consult with the Sa'o and the family. This is the Samoan way of life-- discussions, discussions, and discussions in a good faith effort to iron out disputes. We decline to establish a precedent by which any malcontent family member can willy-nilly run to court every time a Sa'o makes a family decision with which he disagrees. We have already observed that all Sa'os are not perfect. Neither are all family members.

What is the "Samoan way of life" this statute is supposed to protect?

Briefly, the Samoan way of life has twin cornerstones, the matai system and communal land tenure. (See Lutali and Williams, Legal Aspects of Matai and Land Tenure Systems in the Territory of American Samoa, 2 Samoan Pac, L. J. 110.) The family owns the land. The rights of the individual family members defy common law labels. Attorney Michael Kruse probably said it as well as it can be said, a conditional entitlement to ownership no greater than any other family member. The matais selected by and speaks and acts for the family. His pule (authority) is titular. He has no greater right in the family than any other member of the family. There was general agreement in this case that he acts as a trustee of communal lands. And so, at long last we ask ourselves, does the right of a family member to question in court a decision by a Sa'o in regard to communal land damage the Matai system? It does not. our reasons for this conclusion:

1. It is obvious that the Matai system is alive and well in American Samoa. the matais are carefully selected by the families. Their decisions are generally accepted by the families as wise, good, and just. The respect in which matais are held is reflected by the fact that almost all elected governmental offices are held by matais--the Governor, the Lieutenant Governor, the majority of the House of Representatives--all elected by popular vote. The Matai system is robust, healthy, and in need of no false support.

2. Since 1900 only about once a year has a family member even questioned a matai decision in court. From this history it is hard to conceive of any pressing necessity for such a law.

3. From this history, in no way can any rational person expect the collapse of the system should we return to the pre-1981 and pre-section 43.1309 days. The system survived those days. It will survive into the future. The Samoan way of life has shown that it can accommodate itself to change. Samoan culture is dynamic, energetic, forceful, and vigorous. The filing of a lawsuit by a family member against a Matai is not going to destroy the system.

4. A few matais may have their family member sues. So, too, a few feelings ruffled when a judges become irate when [1ASR2d79] someone appeals their wise, just, and fair decisions. Both Matai and Judge will survive and neither the Matai system nor the judicial system will suffer irreparable harm if someone questions the decisions of Judges or Matais.

5. Samoans enjoy more protections than anyone similarly situated. They are protected not only by the U.S. Constitution and the Constitution of American Samoa but by various treaties. It would be unconscionable to deprive persons so protected access to the c9urts. While the family is important, so too are the individual members of the family. The Constitution of American Samoa specifically recognizes the dignity of the individual.

6. A matai is not a king. He is the first among equals. His equals have the right to question his actions--even in court. This does no damage to the system.

7. Section 43.1309 is an attempt to freeze the system into a status which may have existed hundreds of years ago when the matai was King--and could do no wrong. This, the the Samoan way of life will not tolerate. This statute is a step backward in Samoan history.

8. The Samoan way of life exists for all matais and non- matais. To each the courthouse door must be open.

9. The fears expressed by the Defendants' witness of damage to the system are sincere but unfounded. The honest, trustworthy matai who is dedicated to his family need not fear judicial review of his actions. Actually, removing this section will strengthen and benefit the system. Court review will benefit the system by having the rare matai who oversteps his authority brought into conformity with the vast majority of matais who do render fair, just, and wise decisions in family matters relating to communal land.

To us it is manifest that this statute is in violation of due process provisions of both the U.S. and American Samoa Constitutions. It also is in contravention of the equal protection of the laws provisions of the U.S. Constitution by any of the three tests we apply. It bears no relationship to a legitimate state interest. It is not necessary for the furtherance of a compelling state interest. It is not reasonably and directly related to a legitimate goal.

Much was said by the Defendants of the court substituting its opinion for that of the Sa'o. No way.

A family member feeling aggrieved can only ask for judicial review of Sa'o's actions. The court will only act to enjoin arbitrary, capricious, or illegal actions or those in which there has been an abuse of discretion on the part of the matai.

The court will obviously enjoin threatened illegal actions.

The court will also enjoin arbitrary and capricious actions. However, these must be willful and unreasoning, without due consideration and in disregard of facts. If there is room for two reasonable opinions, the action is not arbitrary and capricious.

Additionally, the court will enjoin a matai who has been guilty of an abuse of discretion. However, an abuse of discretion will be decreed only when, after calm and careful reflection on the entire matter, it can fairly be said that no matai would reasonably so act under the same circumstances.

The court will not substitute its opinion or its judgement for that of the Sa'o. [1ASR2d80]

Additionally, henceforth it will be necessary for a family member to plead and prove a good faith effort to discuss and resolve the matter with the Sa'o and the family prior to the filing of the lawsuit.

We conclude with two observations.

First, the importance of this lawsuit has been blown completely out of proportion. When all the tumult and shouting die down and the situation can be viewed dispassionately and objectively one fact stands out with unshakable clarity. This Territory got along without this law for 81 years and the Matai system remained robust and healthy in spite of a scattering of challenges in court of a Matai's decision by non-matais. Thus, in addition to its obvious unconstitutionality, this section is simply unnecessary.

Second, if the proponents of this law are still convinced that this statute is necessary to protect the Matai system, the first order of business on their part should be the calling of a constitutional convention for the purpose of asking the voters of American Samoa to amend its constitution by removing therefrom the due process of the law provision. That provision is clear--"No person shall be deprived of life, liberty, or property without due process of law." It does not distinguish between matais and non-matais. It protects all persons. In other words, this decision was mandated by the Constitution of American Samoa without recourse to the Constitution of the United States.

If the citizens of this Territory desire to establish two categories of "persons"they must do so in their charter.

However, at the present, under the Constitution of American Samoa "all persons" are entitled to due process of the law and that means both matais and non-matais.

The motion for Dismissal of the complaint under section 43.1309 ASCA will be denied on the ground that the section is unconstitutional for the reasons stated above.

This matter will beset for a hearing on the merits at the request of either party.

**********

1. The Constitution of American Samoa contains a provision not found in the U.S. Constitution. Article I, section 4 provides that the dignity of the individual shall be respected. This sounds much like John Kneubuhl's definition of Fa'a Samoa. Mr. Kneubuhl testified that the essence of Fa'a Samoa was respect for one's fellow man. Other than this footnote we avoid use of the phrase "Fa'a Samoa" as being incapable of definition. No two witnesses could agree on the meaning of the expression and we lack the effrontrey to attempt our own definition. The concept is a elusive as the Holy Grail. Instead, we use the expression "the Samoan way of life" since that is the expression used in the Constitution of American Samoa (Article I, section 3).

Fa'alevao; French v.


THOMAS A. FRENCH, Petitioner,

v.

AVIATA FA'ALEVAO IN HIS CAPACITY AS CHAIRMAN
OF THE IMMIGRATION BOARD, Respondent.

High Court of American Samoa
Appellate Division

AP No. 35-80

November 25, 1980

__________

Approach to question whether administrative decision is final and therefore appealable is essentially pragmatic concern for just, speedy, and inexpensive determination of every action.

Determination that person is United States citizen precludes deportation or exclusion inquiry by immigration board.

Before SHRIVER*, Acting Associate Justice, presiding, MURPHY, Associate Justice, McNICHOLS**, Acting Associate Justice, POUTOA, Associate Judge, and SEVAAETASI, Associate Judge.

PER CURIAM.

This matter comes before us upon a most confused record. It appears to be an appeal under 9 ASC 552 from a decision of the Immigration Board of American Samoa. We are able to glean the following facts from the documents filed in this case:

Thomas French is a U.S. citizen who came to American Samoa with his wife. His wife is employed under contract with the American Samoa Government and her contract prohibits her from engaging in business in this territory during its term. Mr. French is a marine mechanic. He joined another man in a motor repair business. When the other man decided to drop out Mr. French applied Ito the American Samoa Government for a business license under 12 ASC 1346, (1)apparently to continue the business on his own. His application was favorably endorsed by the Territorial Planning Commission of American Samoa (Commission). The application then went to the Immigration Board who disapproved it on two grounds: The provision discussed above in his wife's contract, and the existence of other similar businesses presently operating here.

The Immigration Board took the additional step of directing or ordering Mr. French to leave this territory. Presumably, if he did leave, it would be without his wife, since her contract requires her to remain until at least August 12, 1981. The constitutional and public policy questions thereby raised by this result are intriguing and perhaps someday will need to be addressed. Curiously, the order to deport tells Mr. French he must leave within "________"days. [1ASR2d45]

The Government has moved to dismiss this appeal since it was not filed within 15 days as provided in 9 ASC 552. The Government contends this requirement is jurisdictional; the appellant contends it is discretionary. This point is interesting, but need not be ruled upon since we find the order or orders entered by the Immigration Board are not final orders. The Federal courts, including the U.S. Supreme Court have adopted essentially practical tests for identifying those judgments which are, and those which are not, to be considered "final." A pragmatic approach to the question of what is a final judgment being essential to the achievement of the just, speedy, and inexpensive determination of every action. Brown Shoe Co. v. U.S., 370 U.S. 294, 306 (1962). Applying that standard to this case, we note the granting of rehearings and the re-issuing of orders of the Board after meetings between Appellant and the Chairman of the Board, and we find it impossible for anyone to tell exactly which order is supposed to be the final, and therefore appealable, order.

As previously stated, in the matter of business license applications it appears that it would be proper to determine the immigration status of an applicant. The Immigration Board found that he is. an American citizen, legally in this territory. That is all it needed to do. The wisdom of the issuance of a business license is more appropriately within the province of the Planning Commission. There is no showing that French is a person to be excluded and subject to deportation under 9 ASC 377.

**********

* Honorable Paul D. Shriver, United States District Court Judge, Retired, Territory of Guam, sitting by designation of the Secretary of the Department of the Interior.

**Honorable Ray McNichols, United States District Court Judge, District of Idaho, sitting by designation of the Secretary of the Department of the Interior.

1. That section presupposes license applications going to the Governor, who refers the application to the Territorial Planning Commission, which then refers the matter back to the Governor. Just how the Immigration Board gets into the pi.cture, let alone, apparently, makes the final decision as to who gets a business license is unclear.

Fa'alevao; Fisher v.


DOUGLAS ALLEN FISHER AND
JOHN FRANKLIN RHODES, Appellants,

v.

AVIATA FA'ALEVAO, Chairman of the
Immigration Board, Appellee.

High Court of American Samoa
Appellate Division

AP No. 40-80

December 24, 1980

__________

Court will not enforce a contested deportation order unless the record includes a statement of facts and authority upon which the immigration board relies.

MURPHY, Associate Justice.*

This cause came before the Court on an expedited hearing on November 28th,1980. Both parties were given five days to file proposed orders which the Court could then issue. Neither party has filed a proposed order and I take it upon myself to issue the following:

The Immigration Board of American Samoa is restrained from taking any further action to deport Appellants without further order of this court. The record before the Court consists of a "petition for stay pending appeal," an "order allowing voluntary departure from American Samoa," and an "Authorization to remain in American Samoa." The petition rambles and the order allowing voluntary departure makes so little sense as to be void on its face. If the American Samoa Government expects to have its orders enforced it is going to have to make findings of fact and state the authority upon which it is deporting these American Citizens which it refers to as aliens. In general, once the Board has made its findings and stated the authority under which it intends to deport any person, the individual who will be deported can then file a brief with the Appellate Division of this court stating the facts as he understands them and citing the law he believes applicable to the deportation. Without those two steps, it is impossible for any court to make a final determination of cases such as these.

If there were a hearing in this case at which notes were taken, a transcript should be filed within 60 days of this date. If no reporter was present at the hearings, or if there were no hearings in this matter, Appellee has 60 days to file findings upon which it intends to deport Appellants, and the authority upon which it relies to do so. If the Government does not file these pleadings within 60 days, it will be deemed to have reconsidered its decision to deport Appellants, and the Court will consider, ex parte, the relief prayed for in Appellant's prayer.

Upon the filing of the pleadings above, Appellants will have 21 days to file a coherent opening brief conforming to the requirements of the Rules of Practice of the High Court of American Samoa. Should such brief not be filed within the prescribed time, Appellants will be deemed to have waived their right to appeal the decision of the Immigration Board, and the Court will dissolve the restraining order presently in effect against Appellee.

**********

*Sitting alone pursuant to 5 ASC 409(d).

Craddick v. Territorial Registrar


Restriction whereby native land may not be held by persons who have not fifty per cent or greater Samoan blood is racial classification which must be afforded strict scrutiny in constitutional challenge. Preservation of Samoan lands for Samoans, as guaranteed by treaty and American Samoa constitution, is compelling interest justifying invidious discrimination. Notwithstanding that decision is based upon invalid statute Majority has taken judicial notice that racial classification survives strict scrutiny analysis despite that government has neither alleged nor presented evidence of a compelling interest. Cause should be remanded for a new evidentiary hearing (dissenting opinion).

Before MURPHY, Associate Justice, presiding, SCHWARTZ* , Acting Associate Justice, SHRIVER**, Acting Associate Justice, POUTOA, Associate Judge, and ITUMALO, Associate Judge.

SCHWARTZ, Acting Associate Justice.

This case presents the issue of the constitutionality of statutory restrictions on the alienation of individually owned land to non-Samoans. Appellant Douglas Craddick is a non-Samoan American citizen; his wife co-appellant, Magdalene Craddick, is a native Samoan. The Territorial Registrar of American Samoa refused to register a warranty deed purporting to convey certain individually owned land to the Craddicks. (1)

On November 16, 1978, appellants petitioned for a Writ of Mandamus to compel the registration of the land, arguing that the Registrar had a clear, present and ministerial duty to register any grant or certificate of title presented to him. The Registrar responded that there was no such duty due to the restrictions on the alienation of land to non-Samoans contained in the American Samoa Code.

Appellants moved for summary judgment. The trial court granted summary judgment to the Territorial Registrar, although he had not moved for judgment. Appellants moved for a rehearing. This motion was denied in a lengthy opinion issued by the trial court. Appellants appeal from the order granting summary judgment to appellee, and from the order denying a rehearing.

Appellant challenge the constitutionality of 27 ASC 204(b), which provides:

It is prohibited to alienate any lands except freehold lands to any person who has less than one half native blood, and if a person has any nonnative blood whatever, it is prohibited to alienate any native lands to such person unless he was born in American Samoa, is a descendant of a Samoan, lived in American Samoa for more than five years and has [1ASR2d12] officially declared his intention of making American Samoa his home for life.

Appellants claim this statutory restriction on the alienation of land to non-Samoans violates the guarantees of due process and equal protection contained in the U.S. Constitution and in the Revised American Samoan Constitution. We disagree. (2)

First, we note that the constitutional guarantees of due process and equal protection are fundamental rights which do apply in the Territory of American Samoa. We agree with the lower court that:

It seems safe to say that the rights guaranteed by the Fifth Amendment-- including the broad right to due process and the more explicit assurance of the equal protection of the laws-- are so basic to our system of law that it is inconceivable that the Secretary of the Interior would not be bound by these provisions in governing the territories, whether 'organized,' 'incorporated,' or no. Order Denying Motion for New Trial or Rehearing, at 4.

Second, we find that 27 ASC 204(b) does create a classification based on race. As the trial court noted, the statute determines Samoan nationality on the basis of blood, not residence. This is clearly a racial distinction.

It is well established that race is a suspect classificalion and that statutes discriminating on the basis of race are subject to the strictest judicial scrutiny. Loving v. Virginia, 388 U.S. 1 (1967). A state which adopts a suspect classification "bears a heavy burden of justification" which requires the state to meet certain standards of proof:

In order to justify the use of a suspect classification, a State must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification, is 'necessary ...to the accomplishment' of its purpose or to the safe-guarding of its interest. In Re Griffiths, 413 U.S. 717, 721-722 (1973) (cites omitted).

We agree with the trial court's finding that the Territory of American Samoa has demonstrated a compelling state interest in preserving the lands of American Samoa for Samoans and in preserving the Fa'a Samoa, or Samoan culture. We find the prohibition against the alienation of land to Samoans to be necessary to the safeguarding of these interests.

It has long been recognized that land holds a central and vital place in Samoan culture. In Haleck v. Lee, 4 ASC 519 (1964), the High Court acknowledged the tremendous importance land has to the Samoan people:

It is common knowledge in American Samoa, to the extent that this Court could properly take [1ASR2d13] judicial notice, that the most valuable tangible thing that the Samoan people possess is the land, and the average Samoan needs statutory protection regarding alienation of land if he is not to lose it forever.

Id. at 550. The critical need to protect this land and to preserve it for the Samoan people is codified in the Samoan Constitution itself. Article I, section 3 of the Revised Constitution of American Samoa is entitled "Policy Protective Legislation" and provides:

It shall be the policy of the Government of American American Samoa to protect persons of their lands and the destruction of the Samoan way of life and language, contrary to their best interests. Such legislation as may be necessary may be enacted to protect the lands, customs, culture, and traditional Samoan family organization of persons of Samoan ancestry, and to encourage business enterprises by such persons.

27 ASC 204(b) was enacted to further the protective policy enunciated in Article I, section 3. The protection of Samoan lands is a permissible state objective "independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate." Loving v. Virginia, supra, at 11.

As has previously been noted:

It is an indisputable fact that since the raising of the American flag in April 17, 1900, to the present, it has been the uninterrupted policy of the Government of American Samoa to protect Samoan communal lands for the benefit of Samoans.Haleck, supra, at 544-545.

The trial court has reviewed in detail the "90-year history of concern that native lands in Samoa not be alienated to non-Samoans," and we will not retravel this well worn road. We merely point to the history of treaties and laws as evidencing recognition on the prat of the United States Government from the very beginning of the compelling nature of the governmental interest in restricting alienation. (3)

The urgent need to prevent the alienation of Samoan lands from the Samoan people is vividly expressed in Haleck v. Lee,supra:

Land to the American Samoan is life itself. He cherishes the land where his ancestors came hundreds [1ASR2d14] of years ago, and where he and his children were born. Land is the only thing he values above anything else because it belongs to him and will belong to his children, just as it belonged to his predecessors for centuries past. Land is what he lives from, for it is only on the land that he can plant, nurse, and grow his plantations of coconuts, papayas, taro... and other food. Land is where he cooks his food. Land is where the bones of his beloved ancestors are buried. Land is where he builds his fale, large or small. Land is the material thing he loves most, after his children. Land is the most valueable inheritance he can leave his children when he dies. Land is his greatest horizon between the sea and the sky. Land is the greatest gift from God to him on this earth, after life itself.

The whole fiber of the social, economic, traditional, and political pattern in American Samoa is woven fully by the strong thread which American Samoans place in the ownership of land. Once this protection for the benefit of American Samoa is broken, once this thread signifying the ownership of land is pulled, the whole fiber, the whole pattern of the Samoan way of life will be forever destroyed. Id. at 551.

It is this compelling state need to preserve an entire culture and way of life that permits the government of American Samoa to utilize a racial classification and still withstand the rigorous scrutiny of a watchful court.

Finally, we note that the total land area of American Samoa is only 76.2 square miles. It is clear that, with so little land available, each acre is precious, and the government of American Samoa has a vital interest in protecting the Samoan people from improvident deprivation of their land. In light of this paramount need, we find that restrictions on the alienation of all lands, except freehold lands, are necessary to the accomplishments of the desired ends of preserving Samoan lands and culture for Samoans.

We have determined that 27 ASC pursues a proper purpose rather than a discriminatory one, and that the government of American Samoa has demonstrated a compelling historical and continuing interest in preserving the land and culture of the Samoan people. Because of the foregoing concerns, we hold the use of racial classification to be necessary to the safeguarding of these interests.

Accordingly, the judgment of the trial court is affirmed.

MURPHY, Associate Justice, dissenting.

This matter reached the appellate division of this Court pursuant to an order for summary judgment granted sua sponte prior to trial. On appeal, Appellants raised for the first time the issue of the policy announced in Section 3, Article I of the Revised Constitution of American Samoa, which in its entirety reads:

"Section 3. POLICY.PROTECTIVE LEGISLATION: It shall be the policy of the Government of American Samoa to protect persons of Samoan ancestry against alienation of their lands and the destruction of the Samoan way of life and language, contrary to their best interests. Such [1ASR2d15] legislation as may be necessary may be enacted to protect lands, customs, culture, and traditional Samoan family organization of persons of Samoan ancestry, and to encourage business enterprises by such persons. No change in the law respecting the alienation or transfer of land or any interest therein, shall be effective unless the same be approved by two-thirds vote of the entire membership of each house and by the Governor."

Although not cited by Appellants in their brtef, Article II, Section 9 of the Revised Constitution of American Samoa (4) further support their contention.

Appellants contend that 27 ASC 204, one of the statutes on which Appellee relies in refusing to register Appellants' warranty deed, was approved by only one legislature, and is, therefore, not effective. Because this matter is raised now for the first time, the trial court was never given an opportunity to consider this argument.

Ordinarily, appeals courts do not consider issues raised for the first time on appeal, but Appellee concedes this is discretionary with the appellate division. Hormel v. Helvering, 312 U.S. 552 (1941); Singleton v.Wulff, 428 U.S. 106 (1976). However, appellate courts can and will consider issues initially raised on appeal if not to do so would be violative of fundamental justice. Hormel, supra.

If 27 ASC 204 is an important statute, and both parties strongly urge it is, the question of its validity or effectiveness should not be widestepped by the High Court. If, as Appellants contend, every Fono since 1961 has failed to ratify the statute it may be that this issue requires more than the casual footnote given it by the majority.

The validity of 27 ASC 204 was recently addressed by the trial division of this Court in Atufili v. Burns Philp, LT 014-79 (February 29, 1980). The Chief Justice speaking for the Court, traced the history of and the policy behind the statute and concluded because 27 ASC 204 was not passed by two successive legislatures, the statue was an invalid enactment. The Court then applied 27 ASC 204's predecessor sections from the Code of American Samoa (1949) and any valid enactments extant at the time of the alleged violation. The law articulated by the trial division of this court to be in effect is the applicable provisions of the 1949 and 1961 Codes, namely section 9.0102 of the 1961 Code and sections 1280, 1282, and 1290 of the 1949 Code. Today's action avoids this issue leaving all potential litigants and the Territorial Registrar in quandry as to what is now the law.

Should the case have been remanded, I would also have directed the trial court to make findings of fact and conclusions of law as they may pertain to the constitutional questions of due process and equal protection that are raised.

Appellee claims the issue of the constitutionality of this statute has already been tried and upheld in Haleck v. Lee, 4 ASR 119 (1964), however, that case only reached the validity of the 1949 statute (5) as it was applied [1ASR2d16] to communal land. Although not mentioned by the majority, this case involves individually owned land.

Both parties, the justices in the majority in this case, and myself agree that 27 ASC 204 creates a classification based on race. Race is a suspect classification (Bolling v. Sharpe, 347 U.S. 497 (1954)) and subject to strict judicial scrutiny (Korematsu v.United States, 323 U.S. 214 (1944); McLaughlin v. Florida, 379 U.S. 184 (1964)). To withstand this higher level of scrutiny, the Government must present a compelling state interest, and the majority of this Court finds that the Government has such an interest. While I do not necessarily disagree with the conclusion, I do disagree with the requirements necessary to reach that conclusion.

The majority relies heavily on Haleck, supra, wherein Justice Roelstated his beliefs as to what was Samoan custom. It appears from the opinion that Justice Roel did not feel it necessary to hear evidence regarding the Samoan custom or the Government's compelling interest. Justice Roel's approach to the issue is summarized in one paragraph of his opinion:

It is common knowledge in American Samoa, to the extent that this Court could properly take judicial notice, that the most valuable tangible thing that the Samoan people possess is the land, and that the average Samoan needs statutory protection regarding alienation of land if he is not to lose it forever. Were it not for the statutory protection, it is not an exaggeration to say that a great deal of the communal land would have been lost to the Samoans by this time, either through the generosity, ignorance or incompetence of the Matai or by the irresistible monetary temptation offered either by Samoans with financial means or by Americans and other tourists to this island who would certainly like to acquire real property in this beautiful area. Even with the statutory restrictions there have been occasions when merchants have brought actions in court seeking to foreclose a mortage on communal land, the consideration for said mortgage having been two or three kegs of beef for a funeral. This only goes to show that the average Samoan .is not quite ready to deal on an equal basis when it comes to business transactions with a more sophisticated, business-trained or perhaps unscrupulous individual. Haleck, supra, at 550-551.

In 1964 Justice Roel took judicial notice of the value of land to the Samoans; today the majority overlooks a controlling constitutional provision and holds that the Territory of American Samoa has demonstrated a compelling state interest in preserving the lands of American Samoa for Samoans. But how did the Government present this compelling interest? There has yet to be one iota of evidence presented to the Court. To issue decisions such as in this case and in Haleck seems the ultimate of paternalism. In King v. Andrus, 452 F.Supp. 11 (D. DC 1977), the Court heard testimony and evidence [1ASR2d17]presented by a cross-section of Samoan leadership and qualified experts before determining if the Government had an interest sufficiently compelling to prohibit trial by jury of American citizens residing in American Samoa. I believe the same approach should be used in this case.

Much time has been devoted to the proposition that the Samoan way life will soon come to an end if 27 ASC 204 is held invalid. This question of fact which in my mind has yet to be answered. The proposition may well be true, and if it is I would be loathe to change by judicial fiat a culture founded on its communal land system. 27 ASC 204 may be a good and necessary statute, but why rush to that judgment? If it is good law it will only gain respect by undergoing the careful analysis this Court is capable of giving it.

The manner in which this issue has been treated by this Court continues to bother me. This is an important issue and Appellants have raised serious constitutional questions. It seems to me Appellants deserve their day in court.

**********

*Honorable Edward J. Schwartz, Chief United States District Court Judge, Southern District of California, sitting by designation of the Secretary of the Department of the Interior.

**Honorable Paul D. Shriver , United States District Court Judge, Retired, Territory of Guam, sitting by designation of the Secretary of the Department of the Interior.

1. American Samoa Code, title 3, section 405 provides: The Territorial Registrar may reject any instrument appearing to be illegal or not entitled under the law to be registered, filed or recorded .

2. Appellants also contest the validity of 27 ASC 204(b) pursuant to the policy protective legislation set forth in article 1, section 3 of the Revised Constitution of American Samoa. This issue was not presented to the trial court. The general rule is that issues not raised at the trial level will not be considered for the first time on appeal. Accordingly, we do not rule on the validity of the enactment of section 204(b), but limit our decision to the constitutionality of that provision.

3. The Treaty of Berlin, which was ratified by the United States Senate on February 4, 1890, provides that:

In order that the native Samoans may keep their lands for cultivation by themselves and by their children after them, it is declared that all future alienation of lands in the Islands of Samoa to the citizens or subjects of any foreign country, whether by sale, mortgage or otherwise shall be prohibited.

The later treaties ceding Eastern Samoa to the United States carried forward the spirit of the Treaty of Berlin. These treaties were the fountainhead for future legislation by the Fono, including 27 ASC 204(b). Also, see the earlier and more stringent alienation prohibition in Section 1282, Chapter 31 of the 1949 edition of the Code of American Samoa.

4. " ...Furthermore, nothing in this section shall be deemed to permit any change in the law respecting the alienation or transfer of land or any interest therein to be effective unless such change shall have been approved by two successive Legislatures by a two-thirds vote of the entire membership of each House and by the Governor as provided in Section 3 of Article 1."

5. Haleck v. Lee, 4 ASR 519 (1964) upheld the constitutionality of section 1281 and section 1283 of the 1949 code. Section 1281 created a land commission which made recommendations to the governor "respecting the approval or disapproval of instruments affecting title, ownership, or possession of land."

Burns Philp (South Seas). Company, Ltd. v. Mageo,


BURNS PHILP (SOUTH SEAS) COMPANY, LTD.
AND AMERICAN SAMOA GOVERNMENT, Appellants,

v.

HTC MEAUTA O. ATUFILI MAGEO, Appellee.

High Court of American Samoa
Appellate Division

AP No. 13-82

May 29, 1983

__________

Safety, economic development, and esthetics are valid public purposes justifying the purchase of communal land by the government. Restrictions on alienation run with the land which must revert to the family when use is no longer for a public purpose.

Before MURPHY, Associate Justice, presiding, KING*, Acting Associate Justice, WILKINS, Acting Associate Justice, FAISIOTA, Associate Judge, and TA'IAU, Associate Judge.

PER CURIAM.

HTC Meauta O. Atufili Mageo, plaintiff/appellee, brought suit to recover a small portion of communal land previously conveyed to Burns Philp though the Government of American Samoa. Burns Philp and the Government of American Samoa; defendants below, appeal from an order and judgment denying its motion for a new trial.

The facts of this case are not disputed. Burns Philp is a business enterprise located on a small plot of freehold land. Prior to 1968, the building was in a dilapidated and unsafe condition, and was located too near [1ASR2d96] the road. Plans to tear down and rebuild the fixture were made and ultimately approved by the government. The new building was to be set back from the road except that it would encroach on slightly less than 1/4 of an acre of Mageo family land.

The governor consulted with the Attorney General to determine a method by which the communal land could be alienated so that the new building could be constructed. The Attorney General concluded that the government should purchase the land and reconvey it to Burns Philp. A sale price of $7,500 was negotiated for the .236 acres. A lone dissenter relented and approval of the Mageo family became unanimous. The governor inspected the land, which has an 80 degree slope, determined that it was of no use to the Mageo family, and approved the transaction as recommended by the Land Commission. Burns Philp tendered the sum, and the land was deeded to the government then to Burns Philp.

On March 20, 1979, Plaintiff/Appellee brought suit alleging that the transactions were illegal and seeking to cancel the instruments and recover the land. Burns Philp raised certain affirmative and equitable defenses, asking the Court for summary judgment and dismissal.

Written memoranda were submitted to the Court. After a hearing, the Court, per Chief Justice Richard Miyamoto, denied the motions. Defendant's motions for reconsideration or certification pursuant to Rule 4(b) of the Federal Rules of Civil Procedure were also denied. The Appellate Division affirmed the trial court and remanded the case for trial.

Trial was held on March 18 and 19, 1980. After submission, the court issued a judgment nullifying the deeds and returning title in the property to the Plaintiff. The judgment was based upon a finding that the deeds were void and the transaction illegal because the land was not purchased for a proper governmental purpose and because the statute authorizing corporations to own land had not at that time been passed by two successive legislatures by a two thirds majority vote. A similar statute, properly promulgated, became effective in February 1982.

The issues presented by this appeal have not been precisely stated by Counsel. A proper determination requires consideration of the following questions:

1. May communal land be transferred to the government upon terms fair to and unanimously approved by the family?

2. Is the purchase of land for resale to a corporation in order to advance safety, economic, and esthetic interests pursuant to a proper government purpose?

3. May the Government of American Samoa sell communal land which it has acquired to a corporation which is not owned exclusively by native Samoans?

4. What is the legal effect of and who may challenge the government's attempt to convey land in a manner inconsistent with statute?

ASCA section 37.0204 , Restrictions on alienation of land formerly ASC section 1282 (1949) provides in pertinent part:

(d) This section does not prohibit the conveyance and transfer of native land for governmental purposes to the United States Government or to the government of American Samoa or to lawful agent or trustee thereof, or the conveyance and transfer, in the discretion and upon the approval of the governor, to an authorized, recognized religious society, of sufficient land for erection thereon of a church, or dwelling house for the pastor, or both; provided that the reconveyance and retransfer of [1ASR2d97] such land shall be to native Samoans only and in the discretion and upon the approval of the governor.

The first issue is thus answered in the affirmative. The government of American Samoa may purchase communal land. The second issue must also be answered in the affirmative.

The government may purchase land to resell it where the resale would further valid policy interests in promoting safety, economic development, and esthetic improvement. See Hawley v. South Bend Dept. of Redevelopment , 383 N.E. 2d 333, 340-41 (Ind. 1978); Anderson v. O'Brien, 524 P. 2d 390, 394 (Wash. 1974); Carman v. Hickman, 215 S.W. 408, 411 (KY. 1919). This does not mean however the government may actually resell the land that it has purchase for resale to any person.

As ASCA section 37.0204(d), and its predecessor, ASC section 1282 (1949) makes clear, communal land acquired by the government may not be alienated to other than native Samoans. Regardless of the wisdom of the statute, it dictates a negative response to the third issue. The government could not lawfully resell the land in question to Burns Philp. The last issue raised in this appeal is determinative of the rights and liabilities of the parties.

When a government acts in a manner which is barred by statute, the action is ultra vires. Generally, a fully executed, not otherwise illegal, ultra vires contract will be enforced, and a party who has benefitted therefrom will be estopped from asserting its ultra vires nature, See generally Henn, Law of Corporations, section 184 at 352 (ultra vires doctrine). The instant case, however, involves government action proscribed by statute. Certainly, the party from whom the land was originally acquired has a sufficient nexus with the subsequent illegal transaction to raise the issue in a lawsuit in that the original transaction may not have been entered into had the government's intent been known. The facts and circumstances of the instant case, however, demonstrate that Plaintiff/Appellee's privies were aware of the intended disposition by the government. As such, the government's illegal transfer may not be asserted as a basis for rescinding the transfer of Mageo family land to the Government of American Samoa.

In determining the present status of the disputed land, it is incumbent upon the court to uphold, as much as possible, the legitimate objectives of valid government policy. Cf. Alston Studios, Inc. v. Lloyd v. Gress & Assoc., 492 F. 2d 279, 285 (4th Cir. 1977); School Dist. No.37, Clerk County Wash. v. Isackson, 92 F. 2d 768 (9th Cir.), denied 303 U.S. 636 (1937). It is apparent that in the case at bar, the government intended to transfer all the interest in the land that it was capable of conveying in order to advance economic, safety, and esthetic interests. While the government may not sell native land which it has acquired, the same may be leased. When the government and Burns Philp attempted to transfer as much interest as possible in the land they were actually entering into a lease agreement for the maximum term then applicable.

ASC section 1283 (1949) provides that native land may be leased to any person for any term not exceeding 30 years. In 1978, that statute was amended to proscribe a lease exceeding 55 years. ASCA section 37.0221(a) . But the amendment cannot apply to a prior transaction. The attempted sale thus resulted in a 30 years lease of native land to Buns Philps by the Government of American Samoa.

The decision of the Court below is modified. The disputed land will revert back to the Government of American Samoa after 30 years from the date of execution of the quitclaim deed to Burns Philp. [1ASR2d98]

MURPHY, Associate Justice, specially concurring.

At the expiration of the 30 year lease (approximately 1998) if the reason for the original taking is no longer valid, the property must revert to the Mageo family. In the event, this occurs sooner, the property should also revert to the family. If the Government re-negotiates the lease, any rental received thereunder should be paid to the Mageo family.

**********

*Honorable Samuel P. King, United States District Court Judge, District of Hawaii, sitting by designation of the Secretary of the Department of the Interior.

**Honorable Phillip C. Wilkins, United States District Court Judge, Northern District of California, sitting by designation of the Secretary of the Department of the Interior.

Coleman; Hi v.


YOUNG HI AND JANE WOO, Petitioners,

v.

PETER TALI COLEMAN, COMMISSIONER OF REVENUE,
AMERICAN SAMOA GOVERNMENT, Respondents.

High Court of American Samoa
Trial Division

CA No. 83-79

July 30, 1980

__________

Rule providing for admission to tax court of persons who have demonstrated expertise b,y examination does not entitle person not so admitted to represent clients before High Court of American Samoa on matters of taxation.

MURPHY, Associate Justice. [1ASR2d36]

Petitioners , through their counsel, have moved this Court to permit Mr. J.P. King, a resident of American Samoa, to practice law before the High Court of American Samoa when that Court sits as a tax court. Because there was no proof of service in the Court's file, the Court: served a copy of the motion on Respondent and requested a response. That response was filed shortly thereafter. For the reasons given below, we deny Petitioners' motion.

Admissions to the American Samoa Bar Association are governed by Rules of Admission and Practice of Attorneys before the High Court of Samoa, promulgated by then Chief Justice, McKnight on May 1, 1974, as they have been amended. However, we have previously held that we sit as a tax court in this case, and we have applied the Tax Court Rules of Practice throughout. That being so, and because Petitioners only seek to have Mr. King admitted to practice before the High Court when it sits as a tax court, Petitioners rightfully direct us to Rule 200 of those rules. Mr. King is not an attorney at law, so subsection (a)(3) entitled "Other Applicants" is applicable. We quote a portion here for ease of reference.

(3) Other Applicants. An applicant, not an attorney at law, must file
with the Admissions Clerk a completed application accompanied by
a fee of $10. In addition, such an applicant, as a condition of being
admitted to practice, must give evidence of his qualifications satisfactory
to the Court by means of a written examination given by the Court, and
the Court may require such person, in addition, to give similar evidence
by means of an oral examination....

While there may be"very few, if any, attorneys who are as knowledgeable as Mr. King in this area of practice" (Petitioners' Motion for Practice, filed July 11, 1980, page 1), it seems to us that the proper approach for Mr. King to be admitted would be to provide the Clerk of the High Court with some form of documentation showing his admittance practice before the U.S. Tax Court. Upon such application, and with approval of the Chief Justice, any person, including Mr. King, probably be admitted. The reason we chose to adopt this rule without some form of restriction on who may practice before this court, lay persons not skilled in the rules of the Court, the tax laws, or the rules of evidence, could retain a client and through some inadvertently mistake or because of lack of knowledge, lose an otherwise valid claim for the client.

This is not to say, however, Mr. King cannot assist counsel for Petitioners in the preparation of their case. Canon 3 of the American Bar Association's Code of Professional Responsibility , "A lawyer should assist in Preventing the Unauthorized Practice Law," [sic] does not require a lawyer to do all his work himself. In fact, ethical consideration (EC) 3-6 permits the lawyer to delegate certain tasks in an effort: to render legal service more economically and efficiently. In part EC 3-6 reads:

EC 3-6. A lawyer often delegates tasks to clerks, secretaries and
other lay persons. Such delegation is proper if the lawyer maintains
a direct relationship with his client, supervises the delegated work,
and has complete professional responsibility for the work product...

ABA Opinion 316 ( 1967) further defined this relationship :

A lawyer cane employ lay secretaries, lay investigators , lay detectives,
lay researchers, accountants, lay scriveners nonlawyer draftsmen or
nonlawyer researchers. In fact, he may employ nonlawyers to do
any task for [1ASR2d37] him except counsel clients about law matters,
engage directly in the practice of law, appear in court or appear in formal
proceedings a part of the judicial process, so long as it is he who takes
the work and vouches for it to the client and becomes responsible to
the client.

Petitioners having not provided, sufficient evidence as to the qualifications of Mr. King, and Mr. King presently not being a member of the American Samoa Bar Association, Petitioners' motion is denied.

**********

American Samoa Gov’t; Savage v.


JASON SAVAGE, et. al., Plaintiff,

v.

GOVERNMENT OF AMERICAN SAMOA,
et. al., Defendants.

High Court of American Samoa
Trial Division

CA No. 83-82

June 7, 1983

_________

Protection from a known and inherently dangerous condition is an operational rather than a discretionary function for which government has no sovereign immunity under statute. Neither may government avail itself 0œœ sovereign immunity when acting in a proprietary capacity, as in the rental of housing to its employees.

GARDNER, Chief Justice.

Jason Savage, age 5, a resident of the public housing enclave at Tafuna, was attacked and severely bitten by a stray dog bearing the improbable name of Tweeter. Through his guardian ad litem he seeks damages from the Government of American Samoa for his injuries. Before discussing the facts of this case or the applicable law, we must paint, in broad strokes, a background of the canine situation in this territory and particularly in the Tafuna Governmental Housing tract.

THE DOGS OF AMERICAN SAMOA

There are few places on this earth which suffer more than American Samoa from an oversupply of man's so-called friend, the dog. Untold thousands of dogs roam the territory. Some are strays, some have a vague claim to ownership by a human being, a tiny fraction are actually licensed and registered. Almost without exception they are mongrels--scrawny, emaciated, mangy, in-bred, flea-bitten, diseased. Sophisticated world [1ASR2d103] travelers usually refer to the dogs of Mexico and China as the worst looking dogs in the world. Compared to the dogs of American Samoa, the dogs of Mexico and China could qualify as best of their class at Madison Square Garden.

The territory has no leash law. It has a singularly ineffective and widely ignored license law (sections 25.1607 & 27.0243 ASCA) and a peculiar stray dog control law (section 25.0301, et seq. American Samoa Administrative Code) of which more later. As a result, large numbers of dogs, usually in groups or packs, roam the territory at will, fighting, frolicking, fornicating, barking, snarling, and during a full moon, howling either in unison or singly. All of this, standing by itself, is a nuisance. However, a more ominous result of this bulging canine population is an awesome number of attacks by dogs on human beings, usually small children. For example, during the fiscal year 1982, 215 dog bites were recorded at the LBJ Tropical Medical Center. Such a number of bites is shocking considering that the territory only has a population of 32,000. That is almost one dog bite for every 150 people. Obviously this statistic is but a tip of the iceberg as only severe bites would ordinarily require medical attention.

In other words, the dog situation in American Samoa is a disgrace. (1)

THE STRAY DOG ERADICATION AND CONTROL COMMISSION

The Governmental answer to the over-abundance of dogs in the stray dog eradication and control commission. This commission consists of a steering committee which in turn consists of the Secretary of Samoan Affairs, the three District Governors, the Commission of Public Safety, the Director of Public Health and the Veterinarian, plus the County Chiefs of each county, the Pulenu'u of each village, two public health employees, and two police officers. (2)

Through no fault of the court the record in this case is a little hazy as to the activities of this commission. When a subpoena duces tecum was served on the custodian of records, Office of Samoan Affairs, for records of dog bites, her superior advised her to disobey the subpoena. It was only after the court dispatched the marshal with instructions to bring the custodian to court, in custody or otherwise, that she did appear. A similar subpoena to the custodian of records, Department of Public Safety, for their records of dog bites was equally unproductive. That individual reported he was "on leave" the day of the trial. One cannot but be suspicious of the curtain of silence cast by these two governmental agencies over the subject of dog bites. (Apparently, dog bites are a touchy subject with the Secretary of Samoan Affairs and the Department of Public Safety.) Nevertheless, Malua Hunkin, Acting Commissioner of the Department of Public Safety, did graciously and voluntarily come to court and testify although he knew nothing of the department's records in this respect. It is from his testimony and that of the lady from the Office of Samoan Affairs that a rough, inadequate, and sketchy picture of the dog control situation in American Samoa can be patched together. [1ASR2d104]

When a dog bite is reported, police officers interview the victim. prepare a report, and forward it to the Department of Samoan Affairs. That completes the responsibility of the police. The Department of Samoan Affairs apparently then forwards the report to the Pulenu'u of the village where the attack took place. From that time on the responsibility is that of the village. Some villages are apparently quite active and a goodly number of stray dogs are disposed of each month. However, all one has to do is travel around the territory to observe that other villages are doing precious little about their stray dog problem. If the commission does any more than set forth above, the court was unable to discover that fact by reason of the veil of secrecy on the subject by the two departments. (3)

THE DOGS OF TAFUNA

Whatever the effectiveness of the commission may be as to individual villages it affords no protection to the inhabitants of the public housing enclave at Tafuna which is not a part of any village. Insofar as the inhabitants of Tafuna are concerned, dog bite reports simply become useless pieces of paper reposing in the respective offices of the Department of Public Safety and the Department of Samoan Affairs. Nothing is done.

As a direct result of this complete lack of animal control, Tafuna is simply saturated with stray dogs. Tafuna's dog count must be mind boggling although no effective canine census exists. They travel singly or in packs as large as eight to ten. It is with this background we examine the attack on Jason by Tweeter.

JASON AND TWEETER

Jason's father is a contract employee of the American Samoa Government. As part of his contract the American Samoa Government provides him housing in the Tafuna public housing tract for which he pays rent.

Directly adjacent to the American Samoa Government housing tract and separated by an invisible line is the F.A.A. Housing tract. Geographically the two contiguous tracts are one.

Tweeter was a stray dog inhabiting the A.S.G./F.A.A. Governmental housing enclaves. In November 1981 Tweeter attacked and severely mauled the small child of Lieutenant Mike Morris, U.S.C.G., who was living in the Tafuna F.A.A. tract. The police were called and made a written report to the Department of Samoan Affairs. That, apparently, was the extent of official reaction to this attack on a small child by this particular stray dog.

Then, approximately three months later, Tweeter a tacked Jason Savage, bitting him severely in the head, ear, and hand. Again a report was made but nothing was done by officialdom. Instead, frustrated with official inactivity, a vigilante spirit prevailed and some unidentified person prevailed upon a couple of Tongans to beat Tweeter to death with clubs. It wasn't pretty and the S.P.C.A. would undoubtedly have disapproved but it was effective. So much for Tweeter.[1ASR2d105]

THE LIABILITY OF THE GOVERNMENT OF AMERICAN SAMOA

There are two acceptable legal theories on which the Government of American Samoa is liable in tort for Jason's injuries. It is liable both in its governmental and its proprietary capacity.

GOVERNMENTAL CAPACITY

Ordinarily a governmental entity is not liable for its torts if they are committed in its governmental capacity. This is because of the Doctrine of Sovereign Immunity, a doctrine Prosser calls "feudal and monarchist." Prosser is puzzled as to just how "the doctrine got itself translated into the law of the new and belligerently democratic Republic in America." (Prosser, the Law Torts, 4th-Edition, p. 971.) Nevertheless, in 1821, Chief Justice John Marshal adopted the Doctrine of Sovereign Immunity as the law of the land. (Cohens v. Virginia, 19 U.S..264.)

Be that as it may, the doctrine exists in one form or another in every American Jurisdiction.

ASCA section 43.1203(a) purports to abandon the doctrine in this Territory. Then subdivision (b) of the same section reinstates it in all its glory, particularly subdivision (b)(2) which provides for governmental immunity in matters depending on the exercise of a discretionary function. That covers a great deal of territory. Thus, generally speaking at first blush it would appear that whether the Government has an effective stray dog control program depends on the exercise of a discretionary function and the government is protected by the Doctrine of Sovereign Immunity. Not so in this particular case.

Since there is no total controlling authority we turn to other jurisdictions for guidance. While these authorities are not controlling, they may be persuasive. Fortunately, in our research we have stumbled on a most persuasive authority, the elusive "spotted calf" case. Under it and under the facts of this case, the Government loses its cloak of immunity.

In Hansen v. City of St. Paul, 214, NW{2) 346 (Supreme Court of Minnesota) the facts were strikingly similar. In Hanson[sic] there were two vicious dogs which had accumulated seven reports prior their attack upon a woman but the principle is the same. The court held that the City had a duty to maintain its streets and sidewalks free from the inherently dangerous condition created by known vicious dogs. Additionally, Minnesota had a similar discretionary function exemption from liability. The court made short shrift of this contention holding that the failure of the city to act in the face of a known dangerous condition occurred at the operational level rather than at the executive or administrative level (the deployment of personnel). "We hold that the failure of the St. Paul City officials to control vicious dogs under circumstances wherein the city had knowledge that identified and impoundable vicious dogs prowled uncontrolled on public sidewalks does not constitute a failure to exercise a discretionary function within the meaning of Minnesota St. 466.03, Subd.6, and therefore the City of St. Paul is not immune from liability." (p. 350-351.)

Here, the Government of American Samoa had knowledge that a vicious dog was prowling its streets. This created an inherently dangerous condition. The failure of the Government to act constitutes a failure at the operational rather than the executive or administrative level. Therefore, the Government of American Samoa is liable in this case while acting in its governmental capacity.

PROPRIETARY CAPACITY

When the Government acts in a proprietary capacity " loses its [1ASR2d106] sovereign immunity. (Owen v. City of Independence, 445 U.S. 622, 63 L.Ed.(2) 673.) Attempting to define just what is governmental and proprietary has resulted in an plethora of cases which, again in the language of Prosser, "has left this law in a tangle of disagreement and confusion." (Prosser, supra p. 977.) One court, in Weeks v. City of Newark, 62 NJ super. 166, 162 A(2) 314, affirmed, 34 NJ 250, 168 A(2) 11, complained that the rules which the courts have sought to establish in so1ving this problem are as "logical as those governing French irregular verbs."

It is generally accepted that an act or omission is governmental if it is in the public good and beneficial to the citizenry at large. Contrarily, the act or omission is said to be proprietary if it benefit to a private or local interest group (63 C.J.S. 747).

Thus, the operation of a municipal golf course was held proprietary in Plaza v. City of San Mateo, 266 P(2) 523 (Cal. 1954), as was the collection of trash for a fee in Baumgardner v. Boston, 23 NE,(2) (Mass. 1939) and a housing authority created by state statute for slum clearance and to provide housing in Muses v. Housing Authority, 189 P(2) 305 (Cal. 1948.)

Here the Government of American Samoa owns the real property and rents it to its contract employees. This is part of the contract of employment. Tafuna is similar to company town. The employees live in the community for the convenience of the employer. The employees cannot move away as their housing has been assigned to them and no other housing is available. They cannot leave the territory without breaching their contracts of employment. There is not only a landlord-tenant relationship, the employees are virtually captives of the government.

Thus, it is obvious that a landlord-tenant relationship exists between the occupants of the Tafuna Governmental Housing tract and the Government of American Samoa. In this respect the Government of American Samoa is clearly acting in a proprietary capacity.

The landlord owes a duty of care toward his tenant (See below.) Was that duty breached? Yes.

The landlord/government knew that there was a serious territory problem with stray dogs. It is common knowledge shared by the government/landlord that the entire territory is over-populated with dogs. As a result of this the landlord/government knew that the inhabitants of the territory were suffering from a veritable plague of dog bites --215 reported to the hospital in one year. Insofar as the Tafuna Governmental Housing tract is concerned, the landlord/government knew not only that there was a surplus of stray dogs but that by reason of it stray dog control program absolutely nothing was being done about t-his oversupply of stray dogs in the Tafuna Housing tract.

Then, addressing ourselves to this specific case , landlord/government knew that this one dog had attacked and seriously injured a small child. That dog obviously had violent and vicious propensities and became a known danger. The landlord/0 government knew that nothing was done about that dog. Thus, it was reasonably foreseeable that particular dog would bite another child. It did.

The duty of a landlord is clear and has been distilled into a few words by California Jury instructions-Civil -Sixth Edition, as follows:

He has t:he duty to exercise ordinary care in the management of the premises in order to avoid exposing persons thereon to an unreasonable risk of harm. A failure to fulfill this duty is negligence. [1ASR2d107] Ordinary care is that care which persons of ordinary prudence world use in order to avoid injury to themselves on others. This duty of care is owed only to such persons as the owner, as a reasonably prudent person under the same or similar circumstances, should have foreseen would be exposed to such a risk of harm. Thus the landlord is liable for injuries resulting from dangerous conditions of which he has knowledge.

Applying these rules to the facts of this case it is manifest that the Government of American Samoa is liable in its proprietary capacity.

DAMAGES

Having found liability on two grounds, the remaining issue is one of the damages. The child suffered serious injuries with resulting scarring and psychic trauma. The court fixes his damages in the sum of $10,000.00.

CONCLUSION

From the record in this case, it is clear that the inhabitants of the A.S.G./F.A.A. Governmental Housing tracts in Tafuna are entirely without protection against the packs of stray dogs presently infesting those areas. Additionally, it is a sad commentary that under the authoritarian administration of the Navy the dog situation in this territory was that of any other American community --only licensed dogs allowed --while under self rule the stray dog plight has become a territorial embarrassment. The responsibility lies squarely on the shoulders of the Government of American Samoa.

**********

1. T'was not always thus. During the Naval Administration a dog license law was strictly enforced and any dog without a collar was quickly disposed of by the Fita Fita guard.

2. With an organization of this size it seems that one could simply arm the members of the commission with nets, send them out to round up stray dogs and clean up this mess in a couple of days.

3. Apparently, there was a suggestion some time ago that dog control be vested in the police department as is the usual practice in most other similar communities. However, the administration did not see fit to implement that suggestion.

American Samoa Gov’t; Pacific Salvage, Ltd. v.


PACIFIC SALVAGE, LTD.. Plaintiff,

v.

AMERICAN SAMOA GOVERNMENT, Defendant.

High Court of American Samoa
Trial Division

CA No. 64-83

June 9, 1983

__________

Income tax law provides that employer is liable for employee's tax liability unless portion of earnings are retained. even as to foreign corporation entering Territory for a single business transaction; however. tax liability does not accrue until after taxable year.

GARDNER, Chief Justice.

Salvage Pacific, Ltd. (hereafter "Salvage"), a Fijian Corporation, came to American Samoa pursuant. to an agreement with Korea Wonyang Fisheries Co. (hereafter "Wonyang") to re-float one of the latter's sunken vessels in exchange for $90,000.00. On 20 May 1983, the tax division of the Government of American Samoa unilaterally completed a tax form on behalf of Salvage which set the Company's tax liability for that income at $17,110.00. Three [1ASR2d108] days later, a statement of tax due and a notice of tax lien was transmitted to Salvage by the tax division. Also on 23 May 1983, the Attorney General informed Wonyang of its obligation to withhold a stated portion of its payment to Salvage to cover tax liability resulting from the business venture. As a result Wonyang has withheld $17,110.00 of the $90,000.00 contract price. Salvage brings this action to set aside the tax lien and release the money which has been withheld.

By virtue of ASCA section 11.0403, the Territory has adopted the Internal Revenue Code of 1954 as the controlling tax law. 1954 IRC Section 882, "Tax on income of foreign corporations connected with United States business," controls the tax liability in this case. Section 882(a)(1)provides for taxation in accordance with Section 11 or 1201. Section 6072provides that the return must be filed, in the case of foreign corporations, within 6 months and 15 days after the taxable year in which the income accrued. obviously, Salvage need not file a return with respect to income earned from its present agreement with Wonyang for quite some time. The tax assessment and lien process begun by the tax division is thus premature. That does not mean, however, that withholding is improper.

1954 IRC Section 1442(a)authorizes withholding at the source of 30% of the income earned in the United States by a foreign corporation. The items of income subject to the withholding and the manner in which it is withheld is controlled by Section 1441. Section1441 imposes a duty upon the payor to retain, in most cases, 30% of the income payable. Section 1461 provides that the withholding agent (employer) is actually liable for the taxes owed by the taxpayer (employee). The failure to retain a portion of the taxpayer's income, moreover, does not excuse the withholding agent from liability for the taxes (See Reg. Section 1.1461-2(e)).

The amount of income which has been retained by the withholding agent must be periodically reported to the taxing authority on form 1042 or one of its variations (Reg. 1.1461-2). IRC Section 6302(c), and specifically the regulations thereunder, require that the money retained be deposited in an appropriately authorized bank account. It is thus incumbent upon employers of foreign services not only to withhold income, but to periodically report and deposit the retained sum as well. The sum which has been withheld in this case is within the 30% withholding authorized by the tax code. The burden of demonstrating the applicability of sections that eliminate the withholding or reduce the amount withheld is upon the taxpayer. Accordingly, not withstanding that the lien assertedly imposed upon the withheld money in this case is premature (See 1954 IRC Section 6072), the money must nevertheless be retained pursuant to 1954 IRC Section 1442(a) because Salvage has provided no basis fora contrary conclusion.

More than mere withholding is required by law, however. The Tax Division of the American Samoa Government must take such measures as are necessary to enable Wonyang, and others similarly situated, to meet their obligation to report and deposit the income withheld. Further, the withholding, reporting, and deposit requirements should be publicized. In passing, we note that the tax division should also refrain from untimely tax collection proceedings.

**********

American Samoa Gov’t; Naber v.


STEVEN H. NABER, Plaintiff,

v.

GOVERNMENT OF AMERICAN SAMOA,
et. al., Defendants.

High Court of American Samoa
Trial Division

CA No. 18-83

June 30, 1983

__________

Equal Protection guarantees forbid statute unnecessarily penalizing United States citizenship as between similarly situated taxpayers one of whom is a citizen and one a national even though they may both be American Samoans. Where the substitution of terms renders referential legislation ambiguous, court will not favor meaning that is inconsistent with constitutional rights.

MURPHY, Associate Justice.

This matter came on regularly for hearing pursuant to cross motions for summary judgment. Plaintiff taxpayer claims, over the government's objection, that he is entitled to income average. The case turns upon whether or not one must be a resident of American Samoa during the entire base period.

Party Defendant Fa'alata Liaiga, the manager of the tax division, appeared at the hearing with counsel on behalf of the government. He explained that it was the intent of the government to allow income averaging on American Samoan tax returns only where the taxpayer has resided and earned income in American Samoa during the base period. The taxing scheme enacted by the Fono incorporates the 1954 U.S. tax code (ASCA section 11.0403) and provides a substitution of "American Samoa" for "United States" (ASCA section 11.0401).

The problem in this case derives from the substitution into 11954 IRC section 1303 and the regulations thereunder. Section 1303 (with the substitution) provides as follows:

Sec. 1303 Eligible Individuals.
(a) General Rule -Except as otherwise provided in this section, for
purposes of this part the term "eligible individual" means any individual
who is a citizen or resident of American Samoa throughout the
computation year.
(b) Non-resident aliens -for purposes of this part, an individual shall
not be an eligible individual for the computation year if, at any time
during such year or the base period such individual was a non-resident
alien.

Under the applicable regulations (with the substitution), non-resident alien is defined as a person who is neither a resident nor a "citizen" of American Samoa. An amorphous section of ASCA defines "citizen of American Samoa" as a citizen of American Samoa who is not a citizen of the United States (ASCA section 11.0527).

It is easy to see .that this construction of the code is not valid. First, the term "citizen of American Samoa" cannot find sanction in the Court because its meaning is unclear and because American Samoa is not a sovereign nation. Second, and more importantly, the code as constituted treats similarly situated persons unequally without a rational basis [1ASR2d110] therefore. For example, assume that twins are born and reside most" of their lives in American Samoa. Both go to the States where they engage in a partnership that loses money in each of five succeeding years. One of the twins becomes a U.S. citizen during that time. They return to American Samoa, engage in business, and make immediate and substantial profits. The twin who has not become a U.S. citizen and is therefore still a "citizen of American Samoa" may income average on his Samoan tax return while the sibling may not. It is common knowledge that American Samoans may, and many do, apply for and receive United States citizenship, notwithstanding that the present tax structure appears to "abridge the privileges and immunities of citizens of the United States." U.S. Const. Amend. XIV. The situation is similar, even without the force and effect of ASCA section 11.0527, as between two U.S. citizens, one of whom is an American Samoan and one whom is not.

The similarly situated hypothetical taxpayers may not be treated differently for being American Samoans, United States citizens, or both. This was settled in Quaker City Cab Co. v. Commonwealth of Pennsylvania, 277 U.S. 389 (1928). In Quaker City Cab, the Court held that the equal protection clause of the 14th Amendment prohibited differing tax treatment solely on the basis of status (there, between corporations and individuals).

Since these incorporated code sections become invalid upon the substitution of "American Samoa" for "United States", it must next be determined whether the incorporation of the income averaging provisions are thereby invalidated, or alternatively, only the substitution. The incorporation section of the American Samoa code specifically incorporates subtitle A, wherein lies subchapter Q, relating to income averaging (ASCA section 11.0403(a)). The Fono's intent is therefore clear. "American Samoa" is substituted for "United States" only where it is not clearly otherwise required. See ASCA section 11.0401. The substitution section has a built in limitation: substitution is not intended where to do so would render the incorporated statute constitutionally infirm. As such, the substitution yields and the incorporated statute remains as it appears.

Accordingly, it is manifest that any person who is a citizen or resident of the United States (including American Samoa) during the taxable year and the base period may income average on his Samoan tax return. This must the law until the Fono codifies the government's intent by enacting a statute that restricts income averaging to persons who have resided and earned income in American Samoa for the entire base period, regardless of whether they are American Samoans, United States citizens, or both. In other words, if the Government of American Samoa wants to allow income averaging solely on the basis of income earned in the Territory, it should say so. The tax will then be imposed upon income rather than persons, without regard to their national status.

The court is aware that if the Fono chooses to enact such a statute, some persons will have a larger tax liability if they choose to move to American Samoa. However, so long as tax liability is equally imposed upon income, instead of arbitrarily or invidiously assigned to certain individuals, inadvertent and reasonably necessary discriminatory impact is constitutionally permissible. The government has considerable leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation:

...of course, the states, in the exercise of their taxing power, are subject
to the requirements of the equal protection clause of the Fourteenth
Amendment. But that clause imposes no iron rule of equality, prohibiting
the flexibility [1ASR2d111] and variety that are appropriate to reasonable
schemes of taxation." Lenhausen v. Lake Shore Auto Parts Co., 410 U.S.
356,359, 35 L.Ed 2d 351, 355 (1973).

Plaintiff's motion for summary judgment is granted as set forth above. The tax division is ordered to promptly process Plaintiff's tax refund in accordance with the income averaging provisions of the tax code. Interest should be added pursuant to the applicable section of the code. Costs may not be assessed against the government in the absence of a statute (Rule 54 of Civil Procedure).

**********

American Samoa Gov’t v. Foma'i


Provision in American Samoa constitution that requires exclusion of evidence does not entitle Defendant to litigate fourth amendment claim before magistrate as well as trial court.

GARDNER, Chief Justice.

MOTION TO DISMISS THE INFORMATION

The basis for the motion was that the magistrate erred under Rule 5.1 of the Rules of the Criminal Procedures of American Samoa in refusing to consider defendant's motion to suppress under Fourth Amendment grounds. That section provides: "Objections to the evidence on the ground that it was [1ASR2d62] acquired by unlawful means are not properly made at the preliminary examination. Motion to suppress must be made to the High Court..."

This Rule of course, is simply an adoption of the Federal Rule as set forth in the Federal Rules of Criminal Procedures, Rule 5.1. This rule has never ben a subject of a direct attack, but has been approved, albeit obliquely, in a series of cases. See Giordenello v. U.S., 357 U.S. 480;Costello v. U.S., 350 U.S. 359; U.S. v. Blue, 384 U.S. 251.

However; the defendants contend that American Samoa has a peculiar situation which would distinguish it from the Federal Rule since the Exclusionary Rule here exists by constitutional mandate and is not court imposed as in the Federal system.

Section 5 of the American Samoa Revised Constitution, after setting forth the provisions of the Fourth Amendment of the United States Constitution provides: "Evidence obtained in violation of this section shall not be admitted in any court." As indicated, it is the defendants' contention that since the Federal Exclusionary Rule is court mandated and the American Samoa Rule is expressly set forth "in the constitution, the approval by the courts of the Federal Rule has no application and that under this constitutional mandate, they were entitled to press their Fourth Amendment claims in the District Court. They contend that the District Court is a"court," and therefore they have a right under this section to present and litigate their Fourth Amendment contentions in that court as well as in this court. Thus, they demand two bites of the apple, one before the magistrate and one before the High Court. While this procedure is approved by statute in some state jurisdictions, we decline to apply it to this jurisdiction under some kind of constitutional interpretation ploy. Insofar as this argument is concerned, we are singularly unimpressed and equally unpersuaded.

A constitution is not a document etched in steel. It is a flexible, vital living document drafted for the operation and perpetuation of government and able to accommodate itself to changes in the lives of those who must live under it. A constitution is designed to meet new conditions that may arise in the progress of a community. It must be interpreted in such a flexible way as to bring it in accord with the public interest. Ullman v. U.S., 350 U.S. 422. Such is the history of the United States Constitution. For example:

The first amendment prohibits any abridgment of the freedom "of speech. This is in absolute terms, yet one only has to remember the words of Justice Holmes that that amendment gives no one the right to shout "fire"' in a crowded theater. Additionally, assaultive language and pornography are subject to control in spite of the seemingly absolute language of the amendment.

So too, the right of the people to bear arms (amendment II) is being infringed daily and no one contends that this is a violation of the constitution.

The Fifth Amendment provides that noone shall be held to answer for a serious crime except upon a presentation or indictment of a grand jury. obviously, this seemingly absolute command is nothing of the kind. Perhaps 90 percent of all criminal prosecutions in the United States are by the complaint-preliminary information manner. As a matter of fact, as we all know, there is no such thing as a grand jury in American Samoa and if Article 5 were to be applied, literally, a criminal could never be tried here. (See American Samoa v.Willis, 1 ASR 675.)

We point out these rather obvious items because they reflect the concept that a constitution, to exist throughout the years and centuries, [1ASR2d63] must be able to adapt itself to contemporary situations and must be interpreted in a flexible way for the reasonably efficient operation of the community.

The fact that this language appears in this constitution as contrasted with the existence of the Exclusionary Rule by court fiat is, in our opinion, immaterial.

The United States Supreme Court has long since held that the Exclusionary Rule need not cover all proceedings or all persons. "As with any remedial device, the application of the Rule has ben restricted to those areas where its remedial objectives are thought most efficaciously served." U.S. v. Calandra, 94 S.Ct. 613, 620. In dealing with grand jury proceedings, the court held that an extension of the Exclusionary Rule would seriously impede the grand jury. "Because the grand jury does not finally adjudicate guilt or innocense, it has traditionally been allowed to pursue its investigative and accusatorial functions unimpeded by the evidentiary and procedural restrictions applicable to a .criminal. Permitting witnesses to invoke the Exclusionary Rule before a grand jury would precipitate adjudications of issues hitherto reserved for trial on the merits and would delay and disrupt grand jury proceedings. Suppression hearings would halt the orderly progress of an investigation and might necessitate extended litigation of issues only tangentially related to the grand jury's primary objective." U.S. v. Calandra, 94 S.Ct. 613, 620. The court went on to explain that while suppression might be an important method of effectuating the Fourth Amendment, it does not follow that the Fourth Amendment requires adoption of every proposal that might deter police misconduct. The court felt that it would be unrealistic to assume that application of the Exclusionary Rule to grand jury proceedings would significantly further the goal of that rule.

Calandra dealt with the grand jury. As far as we are concerned, the rationale of Calandrais equally applicable to preliminary proceedings before a magistrate. We see nothing to be obtained by imposing the Exclusionary Rule on those proceedings. This would do nothing to deter illegal police conduct and would seriously impair the magistrate's ability to carry out his responsibilities in winnowing out needless prosecutions and seeing to it that only those against whom the prosecution could show probable cause be brought to trial.

A magistrate does not sit as a tribunal which is empowered to conduct a trial. The District Court may, as a District Court, conduct trials of misdemeanors and certain civil matters. However, when the District Court Judge becomes a magistrate for the purpose of conducting a preliminary examination, he merely decides whether or not a defendant should be held for trial. Courts have jurisdiction to try cases. A magistrate does not. A magistrate is not a court. Therefore, the word "court" in Section 5 of the American Samoa Revised Constitution does not apply to a magistrate conducting a preliminary examination. A magistrate exercises no trial jurisdiction when conducting a preliminary examination. This is not simply a matter of semantics. It is basic and fundamental. The magistrate, in short, acts as an arm of the High Court in winnowing groundless and needless cases that would otherwise appear before the High Court and ascertains that only those against whom probable cause has been shown should be held for trial. The magistrate acts as a substitute for a constitutionally mandated grand jury. The only distinction is one which inures to the benefit of the defendant inasmuch as he is allowed to cross examine witnesses at a preliminary and is not allowed to do so before a grand jury.

In short, we can find no distinction between the Exclusionary Rule as [1ASR2d64] mandated by the Supreme Court of the United States and that mandated by the Constitution of American Samoa and find no constitutional flaw in Rule 5.1, Criminal Court Rules of American Samoa. Therefore, the motion to dismiss the information will be denied.

**********

American Samoa Gov’t v. Esera


Family members of senior matai may not grant police permission to enter certain communal land in order to conduct a search. [1ASR2d91]

Before GARDNER, Chief Justice, KING*, Acting Associate Justice, WILKINS**, Acting Associate Justice, POUTOA, Associate Judge, and FAOA , Associate Judge.

PER CURIAM.

Police obtained permission to go upon certain communal land from the son in law of the senior matai who controlled that communal land. From there they observed marijuana plants in plain sight on Defendant's land. The question presented is whether the officers had the right to be on the land from which they made their observations. The trial court held they did not. We agree.

Under Samoan custom, the senior matai controls the use of communal land. Whether such a matai could have given the police permission to go upon that land is a question we need not answer; Clearly, the son in law of a matai has no such authority. If we place the badge of authority on a son in law, where do we stop? A fourth cousin twice removed? A matai may possibly give such permission. A member of his family cannot.

Judgment affirmed.

**********

*Honorable Samuel P. King, United States District Court Judge, Northern District of Hawaii, sitting by designation of the Secretary of the Department of the Interior.

**Honorable Phillip S. Wilkins, United States District Court Judge, District of California, sitting by designation of the Secretary of the Department of the Interior.

American Samoa Gov’t; Bernard v.


TOLO BERNARD aka ALAPATI BERNARD, Appellant,

v.

GOVERNMENT OF AMERICAN SAMOA, Appellee.

High Court of American Samoa
Appellate Division

AP No. 23-80

November 26, 1980

__________

Crime of trespass requires entry and intent which are present. where person passes under roof of house to view inhabitant for criminal purposes.

Before McNICHOLS*, Acting Associate Justice, presiding, MURPHY, Associate Justice, SHRIVER**, Acting Associate Justice, POUTOA, Associate Judge, and SEVAAETASI, Associate Judge. [1ASR2d46]

PER CURIAM.

The Appellant was convicted of trespass in violation of 15 ASC 1413(a). The Appellant was seen on the porch of a home peeping through a wire mesh into the house, then occupied by a woman. He fled and when captured a few minutes later was unclothed. We are of the view that by being on the porch, with eaves extending over the porch, the appellant had made an entry into the house within the meaning of the statute. In the Samoan culture, where houses are more open than would ordinarily be the case, it is considered very wrong to spy on a neighbor.

Samoa does not have a "Peeping Tom" statute to cover situations such as this. The Attorney General may wish to recommend such a statute to the Samoan legislature. 15 ASC 1413 provides:

(a) A person commits the crime of trespass if he knowingly enters
unlawfully or knowingly remains unlawfully in a building or inhabitable
structure or upon real property. (Emphasis supplied)
(b) A person does not commit the crime of trespass by entering or
remaining upon real property unless the real property is fenced or
otherwise enclosed in a manner designed to exclude intruders or as to
which notice against trespass is given by:
1. actual communication to the actor, or
2. posting in a manner reasonably likely to come to the attention of
intruders.

We must first consider what we are not dealing with here. We are not dealing with a Samoan house open on all sides except when the weather requires closure. We are concerned here with a palagi style house with a front door which must be opened to permit entry. The evidence does not indicate that the appellant either entered or attempted to enter the house through the door. The occupant of the house at no time knew of the defendant's presence looking into the living room.

Trespass is well known to the law from the earliest days of the common law and Roman law. 87 CJS 1102. The general trespass provisions by Justice Black in Martin v. City of Struthers(1943) 319 U.S. 141, 147 (1943):

Traditionally the American law punished persons who enter onto the
property of another after having been warned by the owner to keep
off. General trespass after warning statutes existing at least twenty
states while similar statutes of narrower scope are on the books of at
least twelve states more (footnotes omitted).

The instant statute clearly requires an intent to trespass. The person charged must have entered knowingly and unlawfully.

We must now determine what "enter" means in the context of the statute. We conclude in this case that we are justified in applying the construction that the Appellant entered the house when he passed under the eaves with the criminal intent of viewing the occupant for possible sexual purposes. Ordinarily, such conduct would lead to a breach of the peace if discovered at the time. The general principle is stated in 75 Am.Jur. 2d section 87:

Criminal intent is an essential element of the statutory offense of trespass,
even though the statute is silent as to intent, and if the act prohibited is
committed in good faith under claim of right or color of title, although
the accused is mistaken as to his right, unless it is committed with force
or violence or a breach of .[1ASR2d47] the peace, no conviction will
lie, since it will not be presumed that the legislature intended to punish
criminal acts committed in ignorance, by accident or under claim of right,
and in the bona fide belief that the land is the property of the trespasser,
unless the terms of the statute forbid any other construction. A statute
penalizing every trespass upon the property of another committed with
a malicious and mischievous intent is not void on the ground of vagueness,
there being no lack of notice and nothing to entrap the unwary; the
requirement of "a malicious and mischievous intent," narrowing rather than
broadening the scope of the offense, makes its meaning more understandable
and clear (footnotes omitted).

The judgment of the District Court is AFFIRMED.

**********

*Honorable Ray McNichols, United States District Court Judge, District of Idaho, sitting by designation of the Secretary of the Department of the Interior.

**Honorable Paul D. Shriver , United States District Court Judge, Retired, Territory of Guam, sitting by designation of the Secretary of the Department of the Interior.

Gobrait v. American Hotels, Inc.


Tort claim against government is jurisdictionally deficient until it has been presented to the Attorney General as required by statute. Trial by jury in a civil case is not constitutionally mandated and any change in court rule would be prospective only.

MIYAMOTO, Acting Chief Justice.

Fletters L. Gobrait, Jr., suffered cervical injuries at the Rainmaker Hotel swimming pool on August 23, 1975. He and his father filed this tort complaint over two years later, on February 21, 1978. The governmental defendants (Government of American Samoa, American Samoa Development Corporation, and LBJ Tropical Medical Center) promptly moved to dismiss the complaint as to them on March 8, 1978, on the grounds that plaintiffs had failed to comply with the requirements of the Government Tort Liability Act (11 ASC 7281 et. seq.). Basically, the Act provides that a tort action may not be instituted against governmental entities unless and until a claim has been presented to the Attorney General of American Samoa and the "claim shall have been finally denied by the Attorney General in writing..." or six months have passed without a final disposition of the claim. 11 ASC 7285(a).

After the Attorney General noticed this motion on behalf of the governmental defendants, plaintiffs filed a claim with the Attorney General on March 29, 1978. (1) The record is silent concerning any action on this claim, but it appears that six months have passed without there being a final disposition of the claim, and so, at plaintiffs' option, it can be deemed denied by operation of law. Nevertheless, the complaint, when filed, was jurisdictionally deficient for failure to exhaust administrative remedies. 11 ASC 7285(a); see also 28 USC 2675(a). The identical provisions in the Federal Tort Claims Act have been held numerous times to be mandatory, and any action instituted without a prior claim on the appropriate government official must be dismissed. Blain v. United States (9th Cir. 1977) 552 F.2d 289; see 28 USC 2675, n. 1. Plaintiffs have never moved to amend their complaint nor have they filed supplemental pleadings [1ASR2d2]setting forth compliance with the Government Tort Liability Act, and so the governmental defendants' motion to dismiss the complaint as to them is granted.

Plaintiffs have requested a jury trial (2) in spite of rule 3, High Court Rules, which provides that references in the federal rules concerning jury trials are inapplicable to this court. Essentially, plaintiffs are asking this court to change that rule so that there will be a right to a jury trial in civil cases. They concede that there is no federal constitutional right to a civil jury trial in state or territorial courts under the Seventh and Fourteenth Amendments. Although in criminal cases the right to trial by jury embodied in the Sixth Amendment has been held to apply to the states under the due process clause of the Fourteenth Amendment (Duncan v. Louisiana (1968) 391 U.S. 145, 149), no court has held that the federal right to a civil jury trial found in the Seventh Amendment is a necessary component of due Process, at least under the federal constitution. In fact, a long line of cases has held the opposite. Edwards v. Elliot (1874) 88 U.S. 532; accord, Pearson v.Yewdall (1877) 95 U.S. 294.) The Supreme Court has also stated that the federal right to trial by jury in civil cases does not apply to unincorporated territories' courts. Puerto Rico v. Shell Oil Co. (1937) 302 U.S. 253, 258.

But plaintiffs argue that the due process clause of the American Samoa Constitution (Art. 1, sec. 2) should be interpreted to require civil jury trials. Using the test discussed by the United States Supreme Court in Duncan v. Louisjana, supra, 391 U.S. at 149, namely, is the right to a jury trial in civil cases "basic in our system of jurisprudence" or is it "a fundamental right, essential to a fair trial," it can be seen that the use of a jury is not essential to a fair fact-finding process in civil trials. As noted inMcKeiver v. Pennsylvania (1971) 403 U.S. 528, 543, which refused to require jury trials in juvenile cases, "...one cannot say that in our legal system the jury is a necessary component of accurate fact-finding. There is much to be said for it, to be sure, but we have been content to pursue other ways for determining facts. Juries are not required, and have not been, for example, in equity cases, in workmen's compensation, in probate, or in deportation cases. Neither have they been generally used in military trials.

Although there is no requirement under current law that there be civil jury trials, the Chief Justice, pursuant to his rule-making and supervisory powers (5 ASC 202(c)), may promulgate rules to provide for a right to civil jury trials in the future in certain classes of actions, as has already been done in criminal cases. The matter is being considered by the Acting Chief Justice, but any rules to be promulgated to allow for civil jury trials would be prospective only and would not apply to this case.

The motion of the governmental defendants to dismiss the complaint against them is granted without prejudice to refile a proper complaint; plaintiffs' motion for a jury trial is denied.

____________________

1. Some months previously plaintiffs had filed a claim with the Secretary of the Interior, purportedly pursuant to the Federal Tort Claims Act (see 28 USC section 2671 et. seq.), but that act is inapplicable here in light of the existence of a virtually identical act in this jurisdiction.

2. This request is now moot as to the governmental defendants because the complaint against them will be dismissed, but it must still be considered as to the remaining defendants.