5ASR3d225

Series: 5ASR3d | Year: () | 5ASR3d225

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FAGAOALI`I LALOULU

TAGOILELAGI, Claimant,

ULIMASAO SITALA SITALA,

Counterclaimant.

[In re the Matai Title “TAGOILELAGI”

of the Village of Vatia]

High Court of American Samoa

Land and Titles Division

No. 01-96

May

23, 2001

[1] The concept

of “clans” is not defined in the statutes governing matai titles.

[2] Clan

identity must be determined by the particular family’s current traditions.

[3] Samoan

customs are fluid, varying from family to family, and evolving from time to

time within each family.

Before RICHMOND, Associate Justice,

LOGOAI, Chief Associate Judge, ATIULAGI, Associate Judge, and TAUANU`U,

Temporary Associate Judge.

Counsel: For Claimant, Aitofele T. Sunia

For

Counterclaimant, Afoa L. Su`eseu`e Lutu

OPINION

AND ORDER

On September 21, 1998, the Court

entered the original Opinion and Order in this action awarding the matai title “Tagoilelagi” to

Counterclaimant Tilimasao Sitala Sitala, Jr. (“Ulimasao”). Claimant Fagaoali`i appealed the Trial

Court’s decision, and the Appellate Division remanded the case to this Court to

determine the customary clan(s) of the family, as well as whom is supported by

the clan(s) as the next holder of the title. Fagaoaii`i v. Ulmasao, 3 A.S.R.3d 66, 70 (App. Div.

1999). These facts are essential to a

positive finding on the second of the four selection criteria mandated by

statute, the wish of the majority or plurality of the family’s customary

clans. A.S.C.A. § 1.0409(c)(2).

The remand

hearing was held on December 14, 2000. Fagaoali`i, Ulimasao, and their

respective counsel were present. Testimony was taken, and the parties agreed to

submit written arguments. The written arguments were filed on December 21,

2000, in accordance with the agreement.

Discussion

The Family’s Customary Clans

Fagaoali`i identifies a single customary clan of the Tagoilelagi family,

Uitualagi. Fagaoali`i follows the

tradition of clans based on the names of the progeny of the original

titleholder, who he believes is Tagomailelagi Tagaloalagi. Tagomailelagi Tagaloalagi had two children, a

son Uitualagi and a daughter Silaulelei, who did not have children. Thus, Fagaoali`i believes that Uitualagi is

the sole family clan today.

Ulimasao counters with five customary clans of the family, Falemalama,

Suiufa`iga, Sa`a, Sina, and Tuiasosopo. Ulimasao believes that Tagomailelagi

Tagaloalagi’s son, Tagomailelagi Ultualagi, was the first true sa`o of

the family in Vatia. Tagomailelagi

Uitualagi had four sons, Falemalama, Suiufa`iga, Sa`a, and Tuiasosopo, and one

daughter, Sina. Tuiasosopo’s descendents, if any, faded from family history a

long time ago. Thus, Ulimasao holds to

the view that the other three sons and the daughter are the source of names of

the customary family clans that are recognized and participate in current

family fa`alavelave (“family events”).

In addition to the two remaining

candidates, chiefs Te`o Tavai, who descends from Sina, and Vaifetuli Gaoteote,

who descends from Sa`a, testified at the remand hearing. The two chiefs corroborate Ulimasao’s

position that four distinct clans are presently recognized and actively

function in the Tagoilelagi family’s fa`alavelave. At these fa`alavelave,

descendents of the three brothers, Falemalama, Sulufa`iga and Sa`a, and one

sister, Sina, separately present si`i (“customary gifts”). Chief Te`o also points out that Sina’s

descendants are distinguished as the family tama-sa (“sacred clan”).

[1-2] The concept of the “clans” of a

Samoan family is not defined in the statutes governing matai titles. A.S.C.A. § 1.0401-.0414. Rather, guidance is given

only by the general phrase “clans of the family as customary in that family”

for purposes of deciding title succession controversies. A.S.C.A. § 1.0404(c)(2). As in this case, opposing claimants

frequently disagree about the identity of the family’s clans when urging

support within the family for their respective candidacies, often making

judicial resolution of the clan wish issue perplexing. In re Matai Title “Tauaifaiva”, 5

A.S.R. 2d 13, 15 (Land & Titles Div. 1987). In any case, the statutory

reference to the “customary” clans provides clear direction that clan identity

must be determined by the particular family’s current traditions. Id.; In re Matai Title “Atiumaletavai”, 22

A.S.R.2d 94, 98 (Land & Titles Div. 1992).

[3] Samoan customs are fluid, not

static. In re Matai Title “Atiumaletavai”, 22 A.S.R.2d 94, 97-98 (Land

& Titles Div. 1992); In re Matai Title “Tauaifaiva”, 5

A.S.R.2d 13, 14 (Land & Titles Div. 1987). They vary from family to family,

and evolve from time to time within each family. We are satisfied by a preponderance of the

evidence that Tagamailelagi Tagaloalagi was first holder of the “Tagoilelagi”

title. However, we are also convinced by

a preponderance of the evidence that the Tagoilelagi family customarily

developed, and for purposes of the present successor selection process still

has, four clans, namely the Falemalama, Sulufa`iga, Sa`a, and Sina clans, that

actively and separately participate in the family’s fa`alavelave.

Wish of the Majority or Plurality of the Family’s Customary Clans

Based on the evidence presented at the remand hearing, our findings in

the original opinion and order of September 21, 1998, concerning family

meetings to select the successor to the “Tagoilelagi” title were essentially

correct. Quoting that Opinion and Order

at 2 A.S.R.3d 230, 234-235, we repeat those findings (deleting the reference to

a single clan based on our present finding of four clans), as follows:

The family . . . clans first met in February 1994. Ulimasao and another tulafale (or

“talking chief”) of the family were nominated.

The discussions were peaceful and harmonious in accordance with Samoan

customs. Although Ulimasao appeared to have more support, the selection was

postponed until a later time. The second

meeting was held in May 1994. Again, the same persons were nominated. After discussions, Ulimasao was still the

apparent favorite for the title, but the family . . . clans decided that yet

another meeting would be held in an effort to achieve a true consensus.

Fagaoali`i

nominated Ulimasao’s competitor and was not himself nominated during the first

two meetings. However, on July 20, 1994,

he filed his claim for the title “Tagoilelagi” with the Territorial

Registrar. His action prompted the five

original counterclaimants to oppose Fagaoali`i’s claim and seek the title. When the third meeting of family . . . clans

was held, considerable displeasure was expressed over Fagaoali`i’s offer to

next titleholder. However, Fagaoali`i

and his supporters would not join a consensus for Ulimasao. Thus, the family .

. . clans met a fourth time. Ulimasao

still retained his previous support at the fourth meeting. However, to maintain peace and harmony, the

family . . . clans decided that Fagaoali`i and Ulimasao would jointly hold the

title. Both Fagaoali`i and Ulimasao were

given the traditional kava cup ceremony that day, but with the

understanding that Fagaoali`i would withdraw his offer to register the

title. However, the Village Council of

Vatia never met to record the family’s decision, and Fagaoali`i did not

withdraw his registration offer.

Clearly, the family met meaningfully

on several occasions to discuss and select the successor to hold the

“Tagoilelagi” title. Although Ulimasao

enjoyed the most support for selection, the family failed to reach a true

consensus choice. Though not nominated

until the fourth meeting, and then as a compromise gesture, Fagaoali`i probably

has the support of his clan, the Sulufa`iga clan, at least at this time. Ulimasao has the support of his clan, the

Falemalama clan. At the remand hearing,

chiefs Te`o, implicitly by testifying, and Vaifetuli, expressly, confirmed the

support of their clans, the Sina and Sa`a clans respectively, for Ulimasao.

Accordingly, we find that Ulimasao

has the majority support of three of the four customary clans that are

presently active in the affairs of the Tagoilelagi family. Even if we discount the Sina clan as

indecisive on the issue, Ulimasao still has the plurality support of two clans

of the four clans. Either way, Ulimasao

prevails on the clan wish criterion.

Conclusions

Both candidates are blood members of the Tagoilelagi

family and are qualified on this basis to hold the “Tagoilelagi” title. Fagaoali`i does prevail, however, as

previously found, on the statutory best hereditary criterion under the rules

judicially formulated to evaluate this issue.

We also previously found, and still consider, both candidates equally

qualified on the third priority criterion of forcefulness, character, personality,

and knowledge of Samoan customs.

Ulimasao prevails, however, on the second priority clan wish criterion

and, again as previously and still found, fourth priority criterion of value to

family, village, and country.

In our evaluation, Ulimasao notably outranks Fagaoali`i as the choice of

the majority or plurality of the customary clans of the family and in

leadership potential, the second and fourth priority criteria, and these

ratings surpass Fagaoali`i’s nominally stronger hereditary right. We therefore reaffirm our decision of September

28, 1998, to award the “Tagoilelagi” title to Ulimasao.

Order

The title “Tagoilelagi” is awarded to Ulimasao Sitala Sitala, Jr. The Territorial Registrar shall register the

title in Ulimasao’s name, provided that he has resigned from and is not registered

holding any other matai title.

It is so ordered.

______________________________

JUDGE ATIULAGI, Dissenting,

My view was before and still is that the title “Tagoilelagi” should be

awarded to Fagaoali`i.

Fagaoali`i has a better hereditary right to the title than does Ulimasao.

I am persuaded that the Tagoilelagi family follows the tradition of identifying

clans by the names of the original titleholder’s offspring. The first titleholder, Tagomailelagi Tagaloalagi,

had one child who had descendents, his son Uitualagi. Thus, I am not convinced that the Tagoilelagi

family has more than the one clan, identified by Fagaoali`i as the Uitualagi

clan. This single clan has not reached a

consensus to support Ulimasao, and I would therefore find that neither

candidate prevails on this issue.

Again, as I indicated before, I believe that Fagaoali`i is a more

forceful person and stronger leader.

Except while receiving his higher education, Fagaoali`i has lived in

American Samoa his entire life. He has

held a matai title in the Tagoilelagi

family for a slightly longer period than has Ulimasao. I would therefore find that Fagaoali`i

prevails on the third and fourth criteria.

Because he prevails on the first,

third, and fourth criteria in my view, I would award the “Tagoilelagi” title to

Fagaoali`i.

**********

5ASR3d225

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