Customs of American Samoa not in conflict with laws of American Samoa or of the United States concerning American Samoa are preserved. Mulitauaopele v. Palaefei, 3 A.S.R. 93.

Customs of American Samoa which are not in conflict with laws of American Samoa and laws of United States concerning American Samoa are preserved. Seui v. Mata’afa, 4 A.S.R. 333.

Court must recognize Samoan customs where they do not conflict with laws of American Samoa or United States concerning American Samoa. Tuanaitau v. Paogofie, 4 A.S.R. 375.

Samoa was the actual historical location of the Garden of Paradise. Talili v. Satele, 4 A.S.R.2d 23.

Under Constitution of American Samoa the legislature, and particularly the Senate which is composed of traditional chiefs chosen according to Samoan custom, has a peculiar relationship to the preservation of land and culture. Rev. Const’n of Am. Samoa art. I § 3, art. II § 4. Tuika Tuika v. Governor of American Samoa, 4 A.S.R.2d 85.

Court should interpret statutes dealing with Samoan custom and matai titles so as to minimize the extent to which customary law is modified or overridden by the imported procedural framework. In re Matai Title Ma’ae, 6 A.S.R.2d 75.

Territorial statutes concerning matai titles and other customary matters represent the best efforts of the legislature to incorporate custom into written law and to provide procedures for its preservation and enforcement. In re Matai Title Sotoa, 6 A.S.R.2d 91.

Court has no power to disregard territorial statute on the ground that it allegedly conflicts with tradition or custom. In re Matai Title Sotoa, 6 A.S.R.2d 91.

Samoan way of life is dynamic, not static, and is amenable to change. Toleafoa v. Tiapula, 7 A.S.R.2d 117.

The concept of tautua (service) varies from family to family and is best defined by the family rather than the court. Toleafoa v. Tiapula, 7 A.S.R.2d 117.

Provision of territorial constitution that county council elect senators in accordance with Samoan custom means that the council is to use the traditional Samoan manner of decision making as it existed at the time the provision was adopted. Rev. Const. Am. Samoa art. II § 4. Mauga v. Lutu, 10 A.S.R.2d 115.

Court will not lay down a rule prescribing the exact method or custom a county council must use to elect a senator in accordance with Samoan custom, especially as custom may vary in different counties. Rev. Const. Am. Samoa art. II § 4. Mauga v. Lutu, 10 A.S.R.2d 115.

Provision of territorial constitution that county council elect senators in accordance with Samoan custom does not include power to delegate the decision completely to a subdivision of the county, since this would allow a new custom, habit, or practice to repeal explicit and unambiguous constitutional provisions. Rev. Const. Am. Samoa art. II § 4. Mauga v. Lutu, 10 A.S.R.2d 115.

The “order in aid of judgment” statute requires the court, upon application from a judgment debtor, to order a payment schedule which “shall allow the debtor to retain such property and such portion of his income as may be necessary to provide the reasonable living requirements of the debtor and his dependents,” specifically including traditional, Samoan family obligations. A.S.C.A. § 43.1501. Samoa Products, Inc. v. A`asa, 17 A.S.R.2d 66.

Informal statements of traditional Samoan custom and law are neither binding on the Court nor persuasive, as they do not represent a recitation of legal authority. Pene v. Bank of Hawaii, 18 A.S.R.2d 65.

When a conflict arises, Samoan custom must give way to the laws of the United States and American Samoa. A.S.C.A. § 1.0202. Taeleifi v. Willis, 21 A.S.R.2d 118.

It is appropriate for the courts of American Samoa to give effect to Samoan customs and traditions. Courts should not abolish, by judicial fiat, Samoan traditions which have endured for generations in Samoan institutions and are recognized by formal legal institutions. Mulitauaopele v. Mulitauaopele, 25 A.S.R.2d 43.

Samoan custom is defined by an evolutionary process, not by the judicial process. Mulitauaopele v. Mulitauaopele, 25 A.S.R.2d 43.

Under the Deeds of Cession between the chiefs of Eastern Samoa and the United States, all vestiges of sovereignty passed from former to the latter. Alamoana Recipe, Inc., v. American Samoa Government, 25 A.S.R.2d 97.

Where a conflict exists between statute and any customary privilege, the statute governs. In Re Matai Title I`aulualo, 25 A.S.R.2d 155.

Custom in conflict with law must give way. A.S.C.A. § 1.0202. In Re the Matai Title Iu, 25 A.S.R.2d 127.

There is nothing in law or custom to prevent reunification of a split matai title; however, reunification is something best left to the evolutionary process of Samoan custom, as opposed to yet another conflicting judicial pronouncement on the issue of split/joint matai titles. Fanene v. Fanene, 26 A.S.R.2d 8.

Where law and Samoan custom conflict, the law prevails. Mau v. Fuimaono, 27 A.S.R.2d 44.

The Treaties of Cession require respect and protection of the people to their lands and the recognition of property rights according to Samoan custom. Fanene v. Fanene, 6 A.S.R.3d 333 (Land & Titles Div. 2002).

§ 2 Criminal Law

SEE CRIMINAL LAW

Under Samoan custom, land may be transferred as damages for sanguinary assault. Tufaga v. Mativa, 1 A.S.R. 184.

Intercourse with taupo amounts to criminal disrespect of High Chief who appointed taupo. American Samoa v. Teleti, 1 A.S.R. 342.

Because of Samoan custom, attorney is not likely to take case against husband of his family member. Tago v. Hunkin, 3 A.S.R. 427.

Under Samoan custom, Ifoga is presented to family or deceased by those responsible for wrongful death but this is not meant to compensate family of deceased but merely as expression of sorrow and apology. Hsu v. Pratt, 4. A.S.R. 752.

That defendant’s conduct was similar to pre-Christian Samoan ceremonial practices was no defense in prosecution for sexual abuse and sodomy, since territorial legislature enacted no statutory exception for such practices. A.S.C.A. §§ 46.3611, 3612. American Samoa Government v. Masaniai, 4 A.S.R.2d 156.

Using matai title without being registered as holder is criminal offense. Faagau v. Tulei, 4 A.S.R. 490.

Law provides penalties for persons using matai title without having registered it. (CAS 6.0109.) Mailo v. Fuimaono, 4 A.S.R. 757.

§ 3 Family Law

SEE FAMILY LAW

§ 3(1) —Family Membership

Under Samoan custom the male branch of the family absorbs the female branch and “pule” passes from male to male where possible. Sagapolu v. Tanielu, 1 A.S.R. 331.

Under Samoan custom, matai is trustee of family land for benefit of entire family, and his sons may, by deciding to live with their wives, become members of different family or even matais of different family. Talo v. Tavi, 2 A.S.R. 63.

Samoan custom permits person to be member of two different families at same time. Sueuga v. Laisene, 2 A.S.R. 82.

Evidence supports determination of court that matai “Veevalu” is lesser title in Mageo family, including admission of facts by matai “Veevalu” and where facts determined are supported by evidence, court will not grant petition for rehearing on grounds that it misunderstood facts. Gi v. Mageo, 2 A.S.R. 383.

Under Samoan custom, outsiders who come to live with family and are married into family become family members even though they are not blood members. Asuega v. Mauga, 3 A.S.R. 70.

Under Samoan custom, all those who live in the family are considered family members, although not necessarily blood members. Vaotuua Family v. Puletele, 3 A.S.R. 145.

Samoan custom decrees that widow with children continues to live with children on family land of her deceased husband’ if she has no children she returns to her own family’s land. Vaimaona Family v. Meafou, 3 A.S.R. 228.

Exchanging visits in manner typical of family members is evidence of family membership pursuant to Samoan custom. Foster v. Fa’amuli, 4 A.S.R. 3.

Under Samoan custom, man buried on communal family land near house he lived in, despite request by other relatives that he be buried elsewhere indicates family membership. Momoe v. Atofau, 4 A.S.R. 305.

Under Samoan custom it would be natural for man coming from another island to stay with family of his mother. Tuanaitau v. Paogofie, 4 A.S.R. 375.

Under Samoan custom, married man living with wife’s family is considered to be member of wife’s family. Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383.

Under Samoan custom, women do not marry men from their families. Lolo v. Heirs of Sekio, 4 A.S.R. 477.

Where former title holder and other matais favor person to hold title, this is strong indication that person is family member. Utu v. Aumoeualogo, 4 A.S.R. 906.

A reference to one person as the “sister” of another is not contradicted by evidence that they did not have identical ancestors, since in Samoan custom the terms “brother” and “sister” frequently refer to relatives of the same generation whether or not they are born of the same mother and father. Satele v. Uiagalelei, 8 A.S.R.2d 97.

When two branches of a family are not related to each other by blood, it would be contrary to Samoan custom for them to meet together as one family to choose a single title holder with pule over both families’ lands and internal affairs. In Re Matai Title Mulitauaopele, 16 A.S.R.2d 63.

Neither law nor Samoan custom forbids the continued existence of two unrelated families, which came into being after the original line of direct descendants from the first titleholder died out. In Re Matai Title Mulitauaopele, 17 A.S.R.2d 75.

There are four customary clans of the Misaalefua family, namely: Agafala, Vaepala, Tuimalie, and Faliu. In Re Matai Title Missaalefua, 28 A.S.R.2d 106.

Samoan families traditionally make decisions not by pure majoritarian democracy but by consensus. In Re Matai Title Missaalefua, 28 A.S.R.2d 106.

§ 3(2) —Adoption

SEE FAMILY LAW § 3(3) – Voluntary Relinquishment of Parental Rights – Adoption

Court will consider children adopted in accordance with Samoan custom to be members of family. Leasiolagi v. Fao, 2 A.S.R. 451.

Many times a Samoan couple will adopt a blood relative; therefore because a child is adopted does not necessarily mean he is not a blood relative of either adoptive parent. Toatolu v. Laumea, 4 A.S.R. 223.

Legal termination of parental rights has important and irrevocable legal consequences that are often quite different from those of Samoan customary informal adoption, in which children often return to their natural parents. In Re Three Minor Children, 10 A.S.R.2d 57.

Informal fa`a Samoa adoptions do not require the consent of the Court because they do not affect the legal rights and obligations of the parties. In re Two Minor Children, 15 A.S.R.2d 28.

A Samoan customary adoption does not require Court approval or a legal termination of the rights and obligation of the natural parents. In re A Minor Child, 19 A.S.R.2d 97.

When a change in legal status is not in the child’s best interest, customary Samoan adoption may continue to inure. In Re a Minor Child, 20 A.S.R.2d 49.

A change in legal status in not necessary to facilitate customary fa`a Samoa adoption. In Re a Minor Child, 25 A.S.R.2d 25 A.S.R.2d 89.

§ 3(3) —Burial Grounds

Matai of family, under Samoan custom, subject to certain limitations, has control over family lands, and he determines, with implied or express consent of family, where communal burial ground shall be. Tiumalu v. Lio, 3 A.S.R. 176

Rights of family member to land assigned to him by former matai are subject to senior right of family to use lands as family burial ground and may be taken for such purpose if family has first been assigned other land. Tiumalu v. Lio, 3 A.S.R. 176.

Samoan custom is to bury matais on communal family land and not on individually owned land. Moananu v. Tuanaitau, 3 A.S.R. 564.

Award of funeral expenses in American Samoa should not include full cost of traditional gifts to persons attending the funeral, since the expectation according to Samoan custom is that the gifts will be reciprocated over time. Fa’avae v. American Samoa Power Authority, 5 A.S.R.2d 53.

For a chief of one Samoan family to be buried on land of another family, while not unheard of, is hardly in the main stream of tradition; rather, the general and long standing custom is to place family graves on family land, to tend them carefully, and to rely on them as evidence of land ownership. Uiagalelei v. Fuimaono, 14 A.S.R.2d 49.

§ 4 Property Customs

SEE REAL PROPERTY

§ 4(1) —Generally

Under Samoan custom if family member builds his house near family guest house, he must construct it so that it will be lower than guest house; however, this requirement is not applicable where house is at substantial distance from guest house. Seui v. Mata’afa, 4 A.S.R. 333.

Where Samoan is constructing house about fifty feet from guest house, court will order that he construct it so that it is lower than guest house in accordance with Samoan custom. Seui v. Mata’afa, 4 A.S.R. 333.

There are no dower rights in communal land. Burns Philp Co v. Afo, 2 A.S.R.2d 39 (Trial Div. 1985).

§ 4(2) —Sa

Samoan custom of “Sa” establishes a lien on property for purposes of taxation. Moimoi v. Howden, 1 A.S.R. 3.

“Sa” one of the oldest Samoan customs, is resorted to when the people must pay a tax or debt. Moimoi v. Howden, 1 A.S.R. 3.

Disregard of the obligations imposed by a “Sa” requires punishment of the offender. Moimoi v. Howden, 1 A.S.R. 3.

§ 5 Ceremonies

Under Samoan custom, strangers are invited to partake of food at feasts, and if trial judges ate food at feast of another they had no obligation to donors of food, nor would the acceptance indicate any bias or prejudice if donors were party to pending case. Betham v. Faumuina, 3 A.S.R. 537.

Under Samoan custom, suatai or sua is formal presenation of food, and if party presented sua to trial judge, it would have been easily witnessed. Betham v. Faumuina, 3 A.S.R. 537.

Under Samoan custom, ipu is not confined strictly to Tuimanua and his people but can be used in connection with giving kava to other chiefs and officials. Tauanuu v. Lei, 1 A.S.R. 621.

The question of how a customary presentation ought to be divided is not one for the courts. Ioane v. Aiga Tautai O Samoa, 1 A.S.R.3d 96 (Trial Div. 1997).

§ 6 Samoan Language

Samoan word “tupu” means king, monarch or sovereign and represents the highest sovereign power, without condition or limitation. Teo v. Liufau, 1 A.S.R. 628.

“Tupu” implies a far higher authority than a “Faipule,” “Matua” or “Tulafale Ali’i.” Teo v. Liufau, 1 A.S.R. 628.

In the Samoan language “Tui” is a synonym for the word “Tupu.” Teo v. Liufau, 1 A.S.R. 628.

While it was not possible to obtain an accurate definition of the Samoan word “Nofofanau,” court found “Nofofanau” unquestionably indicated a degree of dependence of one person on another. Mailo v. Fanene, 1 A.S.R. 191.

The hierarchial matai title and communal land systems, along with the Samoan language, are pillars of fa`a Samoa. Kruse v. Am. Samoa Gov’t, 6 A.S.R.3d 318 (Land & Titles Div. 2002).

§ 7 Village Councils

Holder of Tongan title may not sit on village council on strength of title. Atufili v. Timoteo, 3 A.S.R. 395.

Under Samoan custom, chief’s rank in village is indicated by number of ring steps up to floor of guest house and number of beams under his roof. Seui v. Mata’afa, 4 A.S.R. 333.

§ 8 Matai

§ 8(1) —General Provisions

Matai who does not live with family cannot serve their interests well. Galu v. Mariota, 1 A.S.R. 461.

Samoans do not part with their lands and titles easily and it would not be in accord with Samoan custom for a Samoan chief to renounce the pule of his matai name and family lands to his daughter’s husband and their children forever. Maluia v. Tafetee, 1 A.S.R. 537.

Section 933 A.S. Code does not require matai to live in village to which title is attached; many Manua matais live in Tutuila, only occasionally going to their Manua villages. Tuliau v. Sunia, 4 A.S.R. 858.

Senior Matai may delegate specific task, including the bringing of a lawsuit, to a family member. Poumele, v. Ma’ae, 1 A.S.R.2d 5 (App. Div. 1980).

In some villages, the bearer of ava cup for the village council is recognized as a matai. Moea`i v. Te`o, 9 A.S.R.2d 107.

Although designation by a living matai of his successor has its place in the customs of Samoa, it has always been understood that the whole family has the right to decide whether to accept the designee or to choose someone else. In re Matai Title Tauala, 14 A.S.R.2d 83.

Having two or more persons serve as joint holders of the same matai title is consistent with the law and custom of American Samoa. In re Matai Title Mulitauaopele, 16 A.S.R.2d 63.

Although the exception, ancient Samoan traditions abound with stories of matai who obtained their titles for reasons other than blood descent from a previous title holder, such as “igagato” (conferral as a reward) and “matu`upalapala” (“commission” to avoid the extinction of the line). In re Matai Title Mulitauaopele, 17 A.S.R.2d 75.

While some families or matai may still practice the old, autocratic custom, which allows a matai to appoint his own successor, this custom must be viewed under the law as only a relic from a bygone era. In Re the Matai Title Iu, 25 A.S.R.2d 127.

That one matai’s lands are in essence being used to render tautua to another is thoroughly repugnant to the customs and traditions of the Samoan people. Afoa v. Taaifili, 26 A.S.R.2d 49.

The matai title Misaalefua is title of paramount stature in the territory. In Re Matai Title Misaalefua, 28 A.S.R.2d 106.

The overarching purpose of the Matai Registration Statute, A.S.C.A. §§ 1.0101 et seq, enacted pursuant to Article 1, section 3 of the Revised Constitution of American Samoa, is to preserve Samoan culture and to minimize the extent to which customary law is modified or overridden by the imported procedural framework concerning matai titles. In Re Matai Title Taliaaueafe, 3 A.S.R.3d 225 (Land & Titles Div. 1999).

Because a fundamental feature of the customs, culture, and traditional Samoan family organization is that a Samoan family selects its matai, or titular head, resort to the imported procedural framework of the Matai Registration Statute, A.S.C.A. §§ 1.0101 et seq, is to be availed only where the traditional matai selection process has failed to select a new matai in the customary manner. In Re Matai Title Taliaaueafe, 3 A.S.R.3d 225 (Land & Titles Div. 1999).

Where a family meeting has not yet been called, it is premature for family members to file claims under the Matai Registration Statute, A.S.C.A. §§ 1.0101 et seq, with Territorial Registrar’s office. In Re Matai Title Taliaaueafe, 3 A.S.R.3d 225 (Land & Titles Div. 1999).

The registration process under the Matai Registration Statute, A.S.C.A. §§ 1.0101 et seq, should not supplant and displace the traditional matai selection process, and the registration process and the Court should be involved only when a family proves unable to reach agreement on a matai after the family has had a meaningful opportunity to thoroughly confront the issue. In Re Matai Title Taliaaueafe, 3 A.S.R.3d 225 (Land & Titles Div. 1999).

There is no matai title dispute for certification to the Land and Titles Division until the Territorial Registrar is first satisfied that a family meeting has been called and held for the purpose of selecting a successor matai according to the traditions of the family and that the family was not able to select a new titleholder. In Re Matai Title Taliaaueafe, 3 A.S.R.3d 225 (Land & Titles Div. 1999).

The holder of the sa`o matai title heads the family, the key unit of Samoan society. Kruse v. Am. Samoa Gov’t, 6 A.S.R.3d 318 (Land & Titles Div. 2002).

The Samoan way of life has twin cornerstones, the matai system and communal land tenure. Fanene v. Fanene, 6 A.S.R.3d 333 (Land & Titles Div. 2002).

The Utofili family consists of two distinct family branches, or clans. In re Matai Title “Utofili”, 6 A.S.R.3d 347 (Land & Titles Div. 2002).

§ 8(2) —General Pule or Authority

Generally, a matai is a representative of a family who votes and acts on the family’s behalf and while members of the family have the power to state their opinions and make suggestions they have no right to exercise themselves the representative powers of the matai. Aumavae v. Moefaauo, 1 A.S.R. 38.

Matai is presumed to possess all powers usually possessed by virtue of such status until the contrary is shown by positive evidence. Tupua v. Aumavae, 1 A.S.R. 231.

Matai, as head of family, is in charge of family affairs and looked to by family for advice and direction. Sagapolu v. Tanielu, 1 A.S.R. 331.

Matai has obligation to be leader of family, to influence family to live peaceably and happily together, and to conduct himself in manner that warrants respect of members of his family and people in other families. Asuega Family v. Asuega, 1 A.S.R. 581.

Matai has obligation to treat family with kindness and should not display attitude of animosity toward them, and where matai fails in this obligation, he cannot evict family member for failure to render service, but upon filing of statement with court that he is willing to accept service from family member, it will then be duty of family member to begin rendering service to matai. Vaotuua Family v. Puletele, 3 A.S.R. 145.

Matai title holder has responsibility to get his family to live together in peace and harmony. Tali v. Tupeona, 4 A.S.R. 199.

Matai must reimburse family member who pays obligation out of his own funds, if obligation is legal and moral obligation of family as a whole. Leapaga v. Leapaga, 4 A.S.R. 470.

Court asked to intervene in family dispute will not substitute its judgment for that of the senior matai absent clear abuse of discretion. Toleafoa v. Tiapula, 7 A.S.R.2d 117.

In Samoan custom it is possible for a chief to be recognized as having authority over other chiefs and yet for the other chiefs to own their own land; some chiefs have political authority over a whole village or district but do not have a proprietary interest in the communal lands of other families. Seva`aetasi v. Fanene, 9 A.S.R.2d 118.

Obligation of senior matai to discuss family decisions with family members cannot be reduced to a formula. Gi v. Temu, 11 A.S.R.2d 137.

Matai has no inherent power to govern ecclesiastic organization simply by virtue of the traditional and secular office of the matai. Tele`a v. Savea, 11 A.S.R.2d 110.

In the context of Samoa in 1911, it would have been inconceivable that the term “and his successors or assignees” in a grant of land from one ranking chief to another was intended to give subject possessory rights to the control of an untitled heir of the grantee. Mose v. Tufele, 12 A.S.R.2d 31.

A family member may, in certain circumstances, seek judicial review of matai action, and the court will enjoin arbitrary, capricious, or illegal actions or those in which there has been an abuse of discretion on the part of the of the matai. Pen v. Lavata`i, 25 A.S.R.2d 164.

The sa`o of a family is entrusted with grave responsibilities for the protection and management of the family’s communally-owned lands and the family’s affairs. Kruse v. Am. Samoa Gov’t, 6 A.S.R.3d 318 (Land & Titles Div. 2002).

§ 8(3) —Pule over Communal Lands

SEE REAL PROPERTY § 2(3) – COMMUNAL LANDS, ROLE OF MATAI

§ 8(4) —Family’s Obligation of Service

SEE ALSO REAL PROPERTY § 2(4)(f) –COMMUNAL LANDS, Tautua (service) Obligation

Member of family living on family land is obligated to render service to matai, and matai has obligation to protect family member against wrongdoings by other members of family, and only matai who performs this obligation is entitled to service. Vaotuua Family v. Puletele, 3 A.S.R. 145.

Under Samoan custom if there are two matais in family and one dies, surviving matai represents entire family in village counsel and receives service as representative of deceased matai until he has successor, which means that person owing services to deceased matai should render such service to his successor. Fuga v. Olive, 4 A.S.R. 283.

Service to matai and family under Samoan custom is not a contractual obligation and compensation is available under contractual theory. Malaga v. Alaga, 4 A.S.R. 735.

The concept of tautua (service) varies from family to family and is best defined by the family rather than the court. Toleafoa v. Tiapula, 7 A.S.R.2d 117.

§ 8(5) —Removal

SEE MATAI TITLE DISPUTES § 10 – REMOVAL OF MATAI

§ 8(6) —Title Disputes

SEE MATAI TITLE DISPUTES

§ 9 Elections

SEE ELECTIONS

A decision reached “in accordance with Samoan custom” need not receive unanimous support. Eseroma v. Faresa, 31 A.S.R.2d 169.

SAMOAN CUSTOMS

SAMOAN CUSTOMS

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