CRADDICK
DEVELOPMENT, INC., an American Samoa Corp., EDGAR C. CRADDICK and DAVID
CRADDICK, ADMINISTRATORS OF THE ESTATE OF
DOUGLAS C. CRADDICK and ROBERT KERLEY, Appellants,
v.
and DOES 1-20,
inclusive, Appellees.
High Court of
Appellate Division
CA No. 43-89
[1]
Except with regard to freehold lands, or in special circumstances, a Samoan
cannot “alienate” any Samoan lands to persons with less than full native blood.
[2]
Alienation of land means the sale, gift, exchange, or any other method of
disposal of property.
[3] Where corporation held interest in land as
beneficiary of trust, receiving earnings and proceeds of the property, and
possessed the rights to convey title and to manage and control the property,
said trust violated statutory and constitutional provisions prohibiting
non-Samoan ownership of the land
[4] The land restrictions contained in the
Revised Constitution of American Samoa and A.S.C.A. § 37.0204(b), while
racially discriminatory, are narrowly tailored to satisfy, and do satisfy, a
compelling state interest--the preservation of the Samoan culture and way of
life.
[5] The alienation restriction contained in
A.S.C.A. § 37.0204(b) applies to all land except freehold land. [2ASR3d21]
Before: WARD,* Acting Associate Justice, GOODWIN,** Acting Associate Justice, WALLACE,*** Acting Associate Justice, SAGAPOLUTELE, Associate
Judge, and TUAOLO, Associate Judge.
Counsel: For
Appellants, William H.
For
Appellees, Togiola T.A. Tulafono
For
OPINION
Introduction
In
this latest episode in a long-running land ownership dispute, we consider
whether the transfer of 20-year beneficial interests in land constitutes
alienation, and if so, whether provisions of the American Samoa Code that
prohibit alienation of land to non-Samoans violate constitutional rights. Because we conclude that such transfer does
constitute alienation but that the alienation restriction passes strict
scrutiny review, we affirm.
The
relevant facts of this matter are not in dispute.
Craddick
chose this arrangement because an earlier attempt to acquire land directly in
joint ownership with Magdalene had failed, on the ground that Craddick’s
ownership of land, even individually owned land, would violate
Craddick
died on
The
Trial Division held a three day trial in April 1994 and rendered its decision
on
Discussion
Craddick
Development makes two main arguments on appeal.
First, it contends that the trusts in this case did not constitute
“alienation” under A.S.C.A. § 37.0201(a).
Second, it argues that if the trusts did constitute alienation, the
restriction of land to those with less than one-half native blood violates the
United States Constitution (“Constitution”) and the Revised Constitution of
American Samoa (“Revised Constitution”).[2]
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. . . . 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 successive legislatures by a two-thirds vote of the entire membership of
each house and by the Governor.
A. The Issue of Alienation
With
this strong preference for native ownership in mind, we next turn to the
relevant sections of the American Samoa Code.
Section 37.0204(b) states:
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
family, lives with Samoans as a Samoan, lived in American Samoa for more than 5
years and has officially declared his intention of making American Samoa his
home for life.
[1] This statute applies to
all land in
[2] That leads to the
question: what does “alienation”
mean? The Code provides some
guidance. According to section
37.0201(a), “‘[a]lienation’ means the sale, gift, exchange, or any other
method of disposal of property.”
(Emphasis added.) This expansive
definition of alienation has an exception in A.S.C.A. § 37.0205, which provides
that “[t]his regulation [restricting the alienation of land] shall not apply”
to a trust for mixed-race couples or descendants as beneficiaries.
Under
the statutory interpretation maxim expressio unius est exclusio alterius,
we agree with the Trial Division that the limited scope of the section 37.0205
exception implies that the term “alienation” under section 37.0201, and thus
the restriction of section 37.0204(b), applies to all other forms of
trusts. If the legislature wanted to
exempt the trusts of the type involved in this case from the sweeping language
of section 37.0201, it would have passed another exception like section
37.0205. This is especially true in
light of Article I, section 3 of the Revised Constitution, which makes it clear
that keeping
[3] In this case, Magdalene
held the trust for the benefit of Craddick Development. Obviously, as the beneficiary, Craddick
Development owned an interest in the land, namely the interest in “all
earnings, avails and proceeds of the Property.”
The beneficiary also had “(a) the right to direct the Trustee to convey
or otherwise deal with the title . . .; (b) the right to manage and control the
property; and (c) the sole right to receive the proceeds and avails from
rental, sale, lease, mortgage or other disposition of the Property.” Also, the Trustee only acted upon “written
direction of the Beneficiary.” Clearly,
as beneficiary, Craddick Development owned these interest and rights in the
land, and effectively controlled how the land would be used. This “ownership” by persons with non-native
blood, we hold, violates section 37.0204(b), especially when viewed in light of
the Revised Constitution’s warnings against non-Samoan ownership (i.e. control)
of the land.
Craddick
Development argues that because the Code permits leases of 55 years, the trusts
in this case are also acceptable. But
like the exception under section 37.0205, the Samoan legislature expressly
provided for leases under sections 37.0221-.0222. No such express legislative exception for the
trusts in this case exists under the Code, and we should not manufacture one,
especially in light of Article I, section 3 of the [2ASR3d25] Revised Constitution.
Based on the foregoing statutory interpretation, we agree with the Trial
division and hold that the trusts in this case constitute illegal alienation
under Samoan law.
B. The Constitutionality of the Statutory
Prohibitions
Because
we hold that the trusts in this case are illegal under
Amicus
American Samoa Government argues that A.S.C.A § 37.0204(b)’s restrictions on
the right to own certain real property is not subject to the due process or
equal protection guarantees of the Constitution. On the other hand, Craddick Development
refers to the due process rights guaranteed by the Revised Constitution in
Article I, section 2: “No person shall
be deprived of life, liberty or property without due process of law, nor shall
private property be taken for public use without just compensation.” But this section must be read in conjunction
with Article I, section 3, which restricts the ownership of Samoan lands to
Samoan natives. Both provisions of the
Revised Constitution must be given meaning.
The
backdrop for this issue starts with the Treaty of Berlin, ratified by the
United States Senate in 1890:
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.
Craddick
I, 1
A.S.R.2d at 13. As amicus properly
asserts, the subsequent deeds joining
Recognizing
that the Constitution nevertheless has some application to
“[F]undamental” within the territory clause are “‘those . .
. limitations in favor of personal rights’ which are ‘the basis of all free
government.’” In the territorial
context, the definition of a basic and integral freedom must narrow to
incorporate the shared beliefs of diverse cultures. Thus, the asserted constitutional guarantee
against discrimination in the acquisition of long-term interests in land
applies only if this guarantee is fundamental in this international sense.
Thus,
amicus argues that the equal protection clause, which does not appear in the
Revised Constitution, is not imported as a fundamental right as to alienation
of land restricted by the Treaty of Berlin, the deeds of cessation, and the
Revised Constitution.
[4] When this issue was
before this court in Craddick I, we provided little analysis of this
issue, and moved directly to whether such a classification, which we held was based
on race, was necessary to protect a compelling state interest. Craddick I, 1 A.S.R. 2d at 11-12. We applied strict scrutiny review to the land
restrictions. We then concluded that: “
We
understand the argument by amicus on whether the Constitution’s equal protection
clause applies to this case and are not unsympathetic to it. However, we need not resolve that issue in
this case, because even if the equal protection clause does apply to
We
agree with Magdalene and amicus that the vital interest in preserving Samoan
culture has not diminished since the 1980 holding of this court. Preserving Samoan culture is of primary
importance to American Samoa, and we cannot imagine anything that would so
fundamentally alter the nature of Samoa than permitting non-full blooded
Samoans to own and control land, whether native or individually held. Such an outcome would allow non-full blooded
Samoans to decide the fate of American Samoan culture and identity, something
abhorrent to the Treaty of Berlin [2ASR3d27]
and the Revised Constitution. While
strict scrutiny is a high hurdle to clear, the interest of
C. Appellant’s Policy Arguments
Finally,
we dispose of Craddick Development’s policy arguments. Craddick Development first argues that “this
is not a case calling out for protection of American Samoans against
overreaching land grabbing by an outsider.”
We
understand this first policy argument and are not unsympathetic to it,
particularly in light of the Trial Division’s finding that Magdalene assented
to the trust arrangements and disavowed them when it redounded to her personal
benefit and that she “appropriated trust funds for her personal use, badly
abusing her position as trustee.”
However, the American Samoa Code does not contain an exception for cases
that do not involve “overreaching land grabbing by an outsider.” While Craddick Development’s business plan
might have ultimately benefited American Samoans, it is for the legislature,
and not the courts, to amend the Code to allow for land transactions of the
sort attempted in this case.
[5] Second, Craddick
Development argues that the land in question is individually-held land, which
comprises only two percent of the land of American
AFFIRMED.
_____________________________
[2ASR3d28]
CONCURRING
OPINION
Although I
concur in the result of the majority’s opinion, I do not agree that this case
presents a valid claim of race-based discrimination under the land alienation
statutes. The jurisdiction of the trial court in this case was based on the
areas of corporate, trust, and mortgage law. It is under this narrowly defined
jurisdiction and these specific areas of law that I concur that the
transactions at issue in this case were of no legal effect.
I
Although the
facts in this matter are not in dispute, neither are they in abundance.
Appellant Craddick Development, Inc. is an American Samoan domestic corporation
duly organized and licensed under the laws of this Territory. It later became sole beneficial owner of one
of the 1985 land trusts and co-beneficial owner with the Anderson Employee
Pension Fund of the second 1985 land trust.
A motley assortment of earlier “Deeds of Trust” and coincidental land
transfers were combined and rolled over into the two respective land trusts
established in 1985. Both trusts involved individually owned lands.
I concur in
the result of the majority’s opinion only because the result reached in this
case would have been substantially the same if it had been effectively argued
by counsel before a trial court of clearly competent jurisdiction over the
subject matter. This case began as a
corporate trust case in the trial division of the High Court. At trial it was transformed into a land
matter and decided, in no small part, by the trial division upon application of
a single chapter of the Territory’s land laws to the facts found at trial. Upon appeal, the majority of this Court
further expanded this case to address the federal question of how to balance an
individual’s fundamental constitutional rights with the admittedly race-based
land alienation restriction statutes appearing in Chapter 02, Title 37 of the
American Samoa Code Annotated (“the Code”).
This approach has resulted in jurisdictional inconsistencies and legal
inaccuracies in both [2ASR3d29] the
trial court’s and the majority’s opinions.
Exclusive
trial court jurisdiction over “all controversies relating to land” is granted
by statute to the Land and Titles Division of the High Court, A.S.C.A. §
3.0208(b)(2), not to the Trial Division of the High Court which heard and
decided this case. Although the same
justices and judges would sit and decide the case in either division at the
trial court level, the consequences of jurisdiction become more apparent at the
appellate division level. Under A.S.C.A.
§ 3.0221, the determination of a land case or controversy is made by a majority
of the five member appellate panel. All
other controversies (save for matai title
cases) may be decided by any two of the justices serving on the appellate panel
regardless of the vote of the remaining justice and the two Samoan judges. This statutory safeguard of local
self-determination on culturally critical matters is forfeited unless the trial
courts zealously guard their exclusive respective areas of subject matter
jurisdiction.
The
majority’s footnote #1, on page 22 indicates that the Trial Division may grant
itself jurisdiction to hear land controversies. The statutes indicate a
contrary conclusion in that only the Land and Titles Division may exercise both
land and collateral issues in a single controversy. The Trial Division’s jurisdiction, and the
consequential appellate review voting procedures are statutorily mandated and
not subject to self ordered judicial expansion of prescribed subject matter
jurisdiction. Regardless of the outcome
of this particular case, we should diligently protect the cultural safeguards
contemplated by the Legislature when so carefully constructing this process,
rather than altering the process to protect a questionable product.
By relying
solely upon that part of the trial division’s opinion dealing with the land
alienation restrictive statutes in affirming that court’s decision, the
majority of this Court embraces a jurisdictional paradox. It decides a land controversy appeal from a
trial court which lacks subject matter jurisdiction over such a controversy. This dilemma can and should be avoided.
My
concurrence in the result of the majority’s opinion is predicated upon the
belief that the Trial Division did have jurisdiction over the subject matter of
this controversy because the legal issues presented were confined to the
justiciable areas of corporate, trust, and mortgage law. This distinction,
albeit of anorexic proportion, appears to present the only rational alternative
to reversal based upon lack of jurisdiction.
The
status of the parties and the legal devices selected to implement their land
development schemes present dispositive legal issues short of reaching and
constitutionally justifying the race-based land alienation [2ASR3d30] statutes of this
Territory. Understandably, because such
issues received little if any attention at the trial court level, the majority
is reluctant to presently consider the application of local statutes other than
those raised by counsel or utilized by the trial court. Yet to avoid the nagging jurisdictional issue,
we appear compelled to do so under our powers of de novo review of applicable law.
Indeed, by
failing to address the existence of applicable corporate land acquisition
statutes to the incorporated appellants in this matter, the majority leaves
unexplained its legal conclusion that corporations are “persons with non-native
blood” and that any control over lands by corporations amounts to prohibited
“non-Samoan ownership of the land”. 2 A.S.R.3d at 24. Not to recognize specifically enacted
corporate land acquisition statutes in a matter involving corporate parties
appears violative of fundamental justice, especially in light of the severe
forfeiture and penalty statutes which the trial court imposed upon these
corporate appellants.
Article 1,
§ 3 of the Revised Constitution of American Samoa authorizes the legislature to
enact legislation which “protects the land, customs, culture, and traditional
Samoan family organization of persons of Samoan ancestry....” This “policy protective legislation,” duly
enacted under a super-majority successive-session constitutional requirement,
is integral to the overall land regulatory scheme adopted by the locally
elected and selected American Samoan members of the Legislature. The policy protective legislation is codified
not only in A.S.C.A. tit. 37, ch. 02, but also in other chapters of the
Code. In our de novo review of the law applicable to the facts of this case, it
appears prudent to first inquire whether the Legislature has provided specific
guidance upon the issues under consideration before we resort to case law of
questionable application to the
Certainly
with Appellant Craddick Development, Inc., and arguably with Appellant Anderson
Employee’s Pension Fund, we are dealing with corporate persons subject to the
local statutes which create, regulate, or authorize the legitimate use of their
corporate powers. And, with the trust
instruments voluntarily selected by the parties to initially legitimize their
land development scheme, we are dealing with a highly regulated, artificial
form of land ownership which must meet strict statutory requirements of
validity or suffer nullification as a legal consequence.
Corporate
land acquisition powers within the Territory are granted and regulated under
A.S.C.A. § 30.0131. Unlike the Northern Marianas approach to regulating
corporate land acquisition powers by allowing only certain corporations owned
and directed by a majority of persons of Northern Marianas Island descent to
obtain title to, or long term [2ASR3d31]
ownership interest in, certain lands, American Samoa has determined that for
land acquisition purposes both foreign and domestic corporations within the
Territory are “without race”. A.S.C.A. §
30.0131.
Further, A.S.C.A.
§ 30.0131 prohibits the corporate acquisition of an interest in land unless the
transaction is approved in writing by the Governor and recorded by the
territorial registrar. Failure to comply
with these two conditions precedent upon the valid exercise of corporate land
acquisition powers nullifies the transaction under the statute’s enforcement
clause: “... and no such acquisition or transfer may be of any effect until so
approved and recorded.”
In
keeping with the trial division’s subject matter jurisdiction, I would decide
this matter within the confines of applicable corporate law and simply rule
that the corporate appellants could not acquire any interest in land without
first meeting the two conditions precedent upon the exercise of such corporate
powers. This would obviate the need to
discuss and decide whether such transactions were “alienations” of land or even
prohibited alienations of land under the race-based restrictions of A.S.C.A. §
37.0204. As the trial court found at
pages 9 and 10 of its decision, appellants failed to apply for approval of
these land transactions from the Governor.
That finding of fact, although determined in a slightly different
context, is controlling for purposes of nullifying any of the land transactions
entered into by the corporate appellants without the prior written approval of
the Governor under A.S.C.A. § 30.0131.
The
discretion granted to the Governor to regulate foreign and domestic corporation
land acquisition powers within the Territory represents part of the
Legislature’s facially race-neutral corporation regulatory scheme. The second
part of this scheme is found under A.S.C.A. § 30.0 103, also specifically
enacted under the super-majority, successive session requirement of the Revised
Constitution. This statute provides
corporations with the direct right of appeal to the U.S. Secretary of Interior
concerning any adverse decision made by the Governor pursuant to the General
Corporation Laws of the Territory. No
comparable direct appeal to the Secretary is found in other land statutes
applicable to natural individuals which require the Governor’s prior
approval. This appears to buttress the
inference that the Legislature sought to regulate corporate individuals under a
separate race-neutral classification.
Because
these statutes were not raised, argued or discussed below, we need not
determine today whether these statutes specifically authorize corporations to
acquire title to individually-owned lands in the Territory. All that is
necessary to decide this case is to find that the corporate appellants lacked
the capacity to lawfully engage in these transactions [2ASR3d32] until first complying with the conditions precedent upon
the exercise of such corporate powers.
As a consequence, these transactions were of no legal effect pursuant to
A.S.C.A. § 30.0131.
The same
rationale applies to the determination of the validity of the 1985 land trusts
under local regulatory statutes. Both
the trial court and the majority ably demonstrated that by prescribing the use
of a particular type of land trust that could be utilized to convey beneficial
land ownership to certain mixed marriage couples and the mixed race issue
thereof, the Legislature had proscribed the use of all other forms of common
law land trusts that might otherwise be formed to circumvent the policy protective legislative
objectives necessary to preserve and protect the Samoan culture and land tenure
system. The problem with their rationale
is that the Legislature, under the successive session super majority
constitutional requirement, enacted two land trust statutes, not just the mixed
marriage-mixed race issue exception to the land alienation restrictive
statutes. The second such land trust
statute is found under A.S.C.A. § 28.1005, which reads in applicable part that
a locally licensed bank may: “...acquire and hold title to land in trust for
beneficial owners who are eligible under the laws of American Samoa to acquire
and hold title to land,...”
Obviously, corporations
that are “without race” cannot qualify as corporate beneficial owners of land
under a statute restricted to mixed race marriages and offspring. Facially, however, A.S.C.A. § 28.1005 does
not impose race, or blood levels of a particular race, upon the classification
of persons eligible to use this type of land trust. What is specifically prescribed by this
statute, however, is that any person desiring to legally acquire a valid
beneficial ownership of land in trust must establish such a land trust with a
locally licensed, federally regulated bank as trustee. No other entity, individual or corporate, is
expressly empowered to acquire and hold title to land in trust under this
statute.
The
wisdom of the Legislature in prohibiting all persons other than federally
regulated banks from serving in such a fiduciary capacity as trustee is amply
demonstrated by the facts of this controversy.
Both the trial court and the majority of this Court seem to agree that Appellee
Magadaline [sic] Craddick failed to faithfully discharge her responsibilities
as trustee of the two 1985 land trusts.
What both opinions fail to declare, however, is that she was legally not
qualified to acquire or hold title to land in trust for any qualified
beneficial owner of such land trusts.
That role has been specifically reserved for banks. Any purported conveyance of land to Magdaline
[sic] as trustee for the 1985 land trusts must fail because she lacked the
specifically prescribed, statutory authority as trustee to acquire any title to
lands held in trust under A.S.C.A. § 28.1005.
“Any [2ASR3d33] conveyance to
one who is not capable of accepting title is void for want of a grantee capable
of taking the estate conveyed.” Petesa
Congregational Christian Church et al v. Tu`inanau, 1 A.S.R.2d
22 (1980).
With
respect to deciding the issue of whether the 1985 land trusts were valid, the
dispositive issue is not blood or race, but the legal capacity of the trustee
selected by appellants to acquire and hold title to lands in trust. In short, appellants Craddick Development,
Inc. and the Anderson Employee Pension Fund never acquired any beneficial
interest in the individually owned lands because the trustee they selected
lacked the legal capacity to acquire title to such lands.
The issue
of the legal capacity of the trustee of the 1985 land trusts is of singular
importance to the appropriate disposition of this case. Under A.S.C.A. § 28.1005 any person who is
qualified to acquire and hold title to land may be a beneficial owner of a land
trust administered by locally licensed, federally regulated bank as
trustee. Obviously the Legislature did
not intend the race-based land alienation restrictions to fully apply to this
statute. Full application would prevent
the initial land title transfer because the trustee bank arguably does not
possess the requisite 50% Samoan blood necessary to acquire and hold title to
land. The statute would be rendered
meaningless by such an interpretation. Nor does the statutory restriction that
the trust’s beneficial owner be qualified to acquire and hold title to land
facially limit the application of this statute to persons of one-half or more
Samoan blood. Arguably, corporations
duly approved by the Governor or the Secretary of Interior could qualify.
Apparently so would the mortgagees who foreclosed individually owned land
mortgages and acquired short term title to such lands for the unexpired balance
of the term of the mortgage plus ten years under A.S.C.A. § 37.1110. This policy protective legislation enacted
after this Court decided Craddick I,
specifically authorizes such mortgagees, regardless of race or blood, to
acquire short term ownership of individually owned lands upon mortgage
foreclosure, provided such lands are ultimately reconveyed to individuals
possessing the requisite Samoan blood.
By deciding
this controversy on the applicable corporate powers and land trust statutes
specifically enacted by the Legislature to address these very issues, this
Court could avoid the apparent legal inaccuracies contained in the majority’s
opinion. I am left with the distinct
impression that the majority has concluded, without explanation, that any
corporation is a “non-Samoan” and therefore statutorily prohibited from
acquiring any interest in individually owned lands regardless of whether or not
it has validly complied with the corporate land acquisition statutes. Although the application of such a holding to
the parties to this controversy may [2ASR3d34]
present justice of sorts, the larger application of this opinion to those
domestic corporations organized under the laws of this Territory and owned and
directed by persons of varying degrees of Samoan ancestry is alarming.
As I
understand the trial court’s and majority’s opinion, every leasehold, easement,
assignment of rents, license for use or any other interest in such lands
conveyed to a corporation may now be voided at will by the owner of such
individually owned lands. Not only may
such conveyances apparently be voided as illegal “alienations” of “control” or
“ownership” of individually owned land interests, but any improvements to such
lands made by the occupying corporate entities would be forfeited to the owner
of such lands under the penalty and forfeiture section (A.S.C.A. § 37.0230) of
Chapter 02, Title 37 of the Code.
The
forfeiture clause of this section applies only to that class of persons
statutorily defined as “nonnatives,” being: “... any person who is not a
full-blooded Samoan” ASCA § 37.0201(e).
This penalty section dates back to one of the earliest Naval Regulations
promulgated to prohibit, at that time, any “native” (full-blooded Samoan as
defined under A.S.C.A. § 37.0204(c)), from alienating land to any
“nonnative.” Gradually this clear cut
distinction was statutorily altered to allow Samoan land owners to alienate
their lands to “nonnatives” who possessed at least 3/4ths Samoan blood. Currently, the land alienation blood
restriction is one-half or more Samoan blood.
The
Legislature has enacted a separate penalty clause specifically applicable to
corporate land transactions under A.S.C.A § 30.0131 which voids all
transactions undertaken without the requisite approval of the Governor and
proper recordation. If the Legislature
had clearly intended the 90 year old penalty provision for violating the
race-based land alienation laws of Chapter 02, Title 37, to apply to
corporations who are without race, there would have been no reason to
additionally create the separate, specific corporate penalty that nullifies
non-conforming corporate land acquisition transactions. Nor is it plausible that the Legislature
would authorize the regulated corporate acquisition of land or interests
therein under Title 30 of the Code only to allow such transactions to be voided
at will under Title 37 of the Code because such corporations are “non-Samoans.”
The
majority’s opinion is made unclear by its repeated misuse of statutorily
defined terms, such as “native” (i.e., a full-blooded Samoan) and “nonnative”
(i.e., a person of less than full Samoan blood) and its use of undefined terms
such as “Samoan,” “Samoan lands” and “nonSamoan.” This leads the majority into erroneous legal
premises such as, “A Samoan cannot ‘alienate’ any Samoan lands to persons with
less than [2ASR3d35] full native blood”.
2 A.S.R.3d at 24. But under
A.S.C.A. § 37.0204(b), a native or nonnative person owning individually owned
lands is free to alienate such lands to any other nonnative who possesses the
requisite one-half or more native blood.
Even when dealing with the far more regulated land category of “native
lands” (i.e., communally owned family lands under the control of the family’s
senior matai), the statutes provide that such lands may, with the prior
approval of the Governor, A.S.C.A. § 37.0204(a) & (b), be alienated to
certain qualified non-natives.
The
majority’s conclusion that the beneficial ownership of land in trust by
appellants “violates Section 37.0204(b)” because it could have resulted in land
“. . . ownership by persons with non-native blood. . .” at page 24 is equally
unclear. The majority fails to explain how it apparently concluded that foreign
and domestic corporations are legally determined to be “non-Samoan or “persons
with non-native blood.”
By statute
corporate persons are without race and corporate land interest acquisition
powers exercisable on a case by case basis at the sound discretion of the
governor, subject to review by the Secretary of Interior. The majority’s
holding vitiates that corporate regulatory scheme, but supplies no alternative
tool for deciding how to determine the “native blood” in corporate
persons. Is it calculated by the Samoan
ancestry levels of the corporate board of directors, the stockholders, or even
the individuals who organize it? Clearly
the Legislature opted to avoid these requisite blood measurement devices by
declaring corporations without race. If
the majority must set this approach aside, it appears incumbent upon them to
explain how native blood is calculated when dealing with corporate land
interest acquisitions.
Nor can I
understand the statement on page 26 expressing the sentiment that: “... we
cannot imagine anything that would so fundamentally alter the nature of
The
generally adverse legal consequences of expanding and misapplying the defined
terms associated with the land alienation laws of this Territory simply to
decide this case far outweigh the need to do so in the manner chosen by the
majority. This approach not only
judicially alters the carefully enacted regulatory scheme of the Legislature
but also stamps this case as a “controversy relating to land” which the trial
court lacked jurisdiction to hear and decide.
This case can, and should be, decided upon consideration of applicable
policy protective legislation [2ASR3d36]
specifically enacted to address the issues of law applicable to land trusts law
and corporate land acquisition powers.
The legal results would be essentially the same; the trusts are void and
the interests in land attempted to be acquired by Appellants nullified. Jurisdiction would be preserved and both the
majority of this Court, and the trial court when finally assessing damages,
would be free to address the equities, rather than force application of a
penalty and forfeiture section of law not clearly intended to apply to
corporate land transactions otherwise voidable under the General Corporation
Law of this Territory.
II
Obviously
I do not agree with the majority that appellants have demonstrated any injuries
attributable to discriminatory race-based governmental actions. Appellants’
injuries were self-inflicted, within areas of the law dealing with corporate
powers and the legal capacities of land trust trustees, under statutes either
facially race neutral or expressly so.
Yet if we must address the issue of fundamental rights raised by
appellants, it would appear we might do better than the majority’s approach of
simply posing, at page 26 that: “... even if the equal protection clause does
apply to American Samoa, the land restrictions at issue would not violate that
clause.” The balance of page 26 of the majority’s opinion similarly exhibits
laudable and genuine sentiment for preserving the Samoan culture and way of
life, but only by way of subjecting the Territory’s race-based policy
protective legislation to judicial strict scrutiny to decide if the Territory
can demonstrate a compelling government interest in preserving its centuries
old culture and communal land tenure system.
This
controversy relates to interests in individually owned lands, not native lands
(i.e., communally owned family lands under the control of the family’s senior
matai). Individually owned lands of the
species at issue here, are of recent and judicial origin. Unlike traditional life upon native communal
lands where the family member’s entitlement to use of the property is
conditioned upon that person’s continuing obligation to render services to his
family’s senior matai, individually owned lands are outside of the direct
control of the senior matai. A family
member on communal land who refuses to contribute to family cultural rituals
may quickly find himself evicted from such lands, but a person residing upon
his or her own individually owned lands has clear title to such property
superior against any other person.
Individually owned lands are freely alienable, subject only to one-half
or more Samoan blood requirement in the vendee.
Such lands are also mortgageable, and subject to involuntary alienation
upon mortgage foreclosure. [2ASR3d37]
The calm
assurances of the majority notwithstanding, I remain unpersuaded that some
future Appellate Division panel or even a U.S. District Court in Washington,
D.C., when applying strict scrutiny to the race-based land alienation
restrictions applicable to individually owned lands, will always find the
government’s argument compelling that the only way to preserve a culture
founded upon communally owned lands under the control of a senior matai,
is to similarly restrict ownership of individually owned lands not
subject to a senior matai’s control, based upon race.
By treaty,
the Deeds of Cession, and public laws duly enacted under the “needful Rules and
Regulations” clause of Article IV, section 3 of the United States Constitution,
the United States Congress has shielded the intertwined lands and culture of
the Samoan people from the full application of federal law that might destroy
the Fa`a Samoa. Not unlike the rights
afforded Native Americans to preserve their tribal customs and lands, Congress
has provided a similar opportunity of cultural self-determination to the people
of this Territory. This concern was
indicated even when Congress first dealt with the Territory’s Deeds of Cession.
Under 48 U.S.C. 1661(b), Congress specifically prohibited the application to
the Territory of “. . . existing laws of the United States relative to public
lands . . .” With this caveat, Congress
then delegated its authority over the administration of the Territory to the
President, who first used the Navy, then the Department of Interior, to
directly administer the Territory while fostering the gradual development of a
self-governing Territory.
The
Revised Constitution of American Samoa was approved by the Secretary of
Interior in the exercise of his powers over the Territory as delegated by
Congress. The “policy protective
legislation” section of the Revised Constitution, when first approved,
reflected a delicate balancing of Samoan self-determination with federal
oversight. The American Samoan
Legislature was granted the conditioned authority to enact laws that its
American Samoan members believed necessary to protect and preserve the Samoan
culture and native lands that are so much a part of that culture and way of
life. Balanced against these local
powers of self determination, when the Revised Constitution was first adopted,
was the clear retention of federal oversight powers exercised by the federally
appointed Governor of the Territory through his legislation veto powers.
Indeed, unless it is recognized that this federal oversight was part of the
policy protective section when initially adopted, the clause in the first
sentence of that section “. . . contrary to their best interests admits to no
application. This clause represented the last vestige of the United States’
direct power to dictate what was or was not in the Samoans’ best interests,
notwithstanding that two successive sessions of the local legislature by a
2/3rds or greater majority had declared what protective [2ASR3d38] laws they thought were necessary to preserve the Samoan
culture and land tenure system.
When the
federally appointed Governor was replaced by amendment to the Revised
Constitution providing for a locally elected Governor, commencing in 1977, the
Secretary of Interior effectively granted to the American Samoan Legislature
and Governor, the unfettered power to decide for themselves what changes in the
land alienation laws could or should be enacted. Congress completed this
process in 1983 by enacting 48 USC 1662a, which prohibits any amendment to or
modification of the Revised Constitution except by Act of Congress.
The
Although I
disagree that this Court need reach the fundamental rights issue raised by
appellants in order to decide this case, if we must do so, we should first
determine whether Congress has insulated the locally enacted policy protective
legislation statutes from those sections of the United States Constitution
whose full application might result in reimposing federal control over the Samoan
culture, land tenure system and way of life. Fundamental rights unquestionably
extend to the general laws of the
The
majority’s Opinion at page 26 indicates little analysis was conducted on the issue
of whether the equal protection clause (by virtue of the 5th Amendment),
applied to the Territory by this Court in Craddick
I. Yet, it appears Craddick I dealt entirely with that
constitutional issue. The Court first
declared unequivocally that “. . . the constitutional guarantees of due process
and equal protection are fundamental rights which do apply in the
The opinion
of the majority in the present matter appears to slightly retreat from the
holding in Craddick I by prefacing
its discussion with “. . . even if the equal protection clause does apply to
Since at least
1917, race-base government restrictions upon an individual to freely alienate
his or her lands have been viewed as unreasonable infringements upon recognized
property and liberty interests protected by the due process clause of the 14th
Amendment. Buchanan v Warley, 245 U.S. 60 (1917). For nearly 100 years both the executive
branch and the Congress of the United States have clearly indicated that such
14th Amendment rights do not apply to the local laws applicable to
the Samoan culture and land tenure system of this Territory. Congress has directly used and indirectly
allowed the use of its Article IV powers to carefully preserve for the Samoan
people the exclusive right to determine by local statute how their culture and
land tenure system will be regulated. It
appears overdue for the judicial branch to do likewise.
The
majority’s opinion is also disturbing in its apparent reliance upon such
documents as the Treaty of Berlin to judicially evaluate the present exercise
of exclusive powers to enact policy protective legislation by the Legislature
and Governor. Although benignly used by
the majority herein, I question whether this Court, or any other court, may set
aside locally enacted policy protective legislation based upon its
inconsistency with the 100 year old expressed interests of the colonial powers
subject to that Treaty. For example, the
Legislature has duly enacted A.S.C.A. § 37.1110 authorizing mortgagees other
than persons of one-half or more Samoan blood to acquire short term title to mortgaged
individually [2ASR3d40] owned lands
upon foreclosure. Since the Treaty of
Berlin contains a blanket prohibition against alienation of lands in the
Islands of Samoa to foreign nationals by sale, mortgage or otherwise, it
appears that under the majority’s opinion at pages 25-27 this Court could
judicially void the Territory’s land mortgage statutes if it determined such
statutes were “abhorrent to the Treaty of
This
approach seems to resurrect powers of the United States Government to decide
whether a particular piece of policy protective legislation is valid based upon
whether the Court views the statute as being contrary to the Samoans’ best
interests. It may prove ultimately correct, but it presently appears at
variance with the historical development of self-government of this Territory
and recently enacted Acts of Congress and the Territory’s Legislature.
I concur
with the result of the majority that the race-based policy protective
legislation restricting the alienation of individually owned lands to persons
of one-half or more native blood as enacted by the Legislature is
constitutional. I do not agree that to
so find, that this Court must apply the compelling government interest test to
this policy protective legislation, nor compare it for compliance with the
Treaty of Berlin.
I concur
solely because it appears Congress has resolved the fundamental rights issue in
favor of the American Samoan people.
Until and unless Congress amends or modifies the Revised Constitution,
the exclusive power to determine the nature and scope of race-based policy
protective legislation rests with the Legislature and Governor, subject to
judicial [2ASR3d41] review based
upon a reasonableness test. I would so
hold.
**********
* Honorable
** Honorable
*** Honorable
[1] Without encouragement of either party, the
concurrence suggests that the trial court was without jurisdiction to make its
decision based on land law in addition to trust law. The trusts involved Samoan land and the trial
court was required to consider both areas of Samoan law. Thus, the action was properly filed in the
Trial Division of the High Court because it involved trusts, and its disposition
also required application of land law.
Both the Trial Division and the Land and
Title Division are part of the High court.
A.S.C.A. § 3.0207(a). Rather than
have the case in both the Trial Division and the Land and Title division, the
trial court rendered one opinion. As the
concurrence admits, the same judges could decide the land issues. The trial court could have entered a
perfunctory order reconstituting itself as both a Trial Division and a Land and
title division of the High Court, but what it did was the functional equivalent
of such action. There was jurisdiction
in the trial court to hear this case.
On appeal, the Appellate Division of the
High Court was constituted into a five-judge bench, and, therefore, is
competent to decide trust as well as land issues, since the Appellate division
has jurisdiction to hear appeals of final orders from either the Trial Division
or the Land and Titles Division. See
A.S.C.A. § 3.0208 (c). The question
raised as to whether the notes of two justices are enough to decide the appeal
is not at issue here, as the two associate judges agreed with two of the acting
associate justices, and, in any event, the issue is not jurisdiction.
[2] The concurrence would resolve this case not
on these issued raised by the parties, but on the alleged statutory ground that
Craddick Development failed to obtain the approval of the Governor to acquire
an interest in land. This issue was
never raised in the court below and has not been argued on appeal. To the extent it has validity, it has been
waived.