FANENE S. SCANLAN, Plaintiff v.FANENE FETAIAIGA KAVA and DOES I-X

 

FANENE S. SCANLAN, Plaintiff
v.
FANENE FETAIAIGA KAVA and DOES I-X, Defendants
High Court of American Samoa
Land and Titles Division
LT No. 13-00
July 8, 2002

 

[1] The subservient obligation of tautua normally runs from a family
member to the family sa`o or senior matai.
[2] The Samoan way of life has twin cornerstones, the matai system and
communal land tenure.
[3] Where court decisions recognized split title in family but awarded
land solely to one of the titleholders, resulting in disenfranchisement of
one branch of family and requiring said branch to render tautua to other
family branch, such decision was wrongly decided, inconsistent with
Samoan custom and contrary to the Treaties of Cession.
[4] The Treaties of Cession require respect and protection of the people
to their lands and the recognition of property rights according to Samoan
custom.
[5] A family’s entitlement to communal land is a proprietary right within
the due process clause of the territorial constitution.
Before KRUSE, Chief Justice, ATIULAGI, Associate Judge, and
SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Paul F. Miller
For Defendant, Charles V. Ala`ilima
OPINION AND ORDER
This case is but yet another sad chapter in what unfortunately has been
an ongoing, longstanding contest between two family factions,
apparently unrelated by blood but tied to a common matai title, Fanene,
attached to the village of Pago Pago. The Fanene title today has two

holders, one from each faction; however, the village of Pago Pago has
been neither prepared to recognize nor accept the Fanene title as a split
title. Consequently, this state of affairs has begotten its own parade of
practical problems since there is only one Fanene title cognizant within
the traditional village polity.1
To compound difficulties, court decisions have declared that certain
Fanene family land known as Lalopua, at issue before us now, is
exclusively owned by one of these Fanene factions, although in part
occupied by the other for many years. The faction asserting ownership is
seeking to oust or evict the other.
Discussion
The modern day situation with the Fanene family of Pago Pago has in
large part been the product of a tortuous evolutionary process generated
not through customary Samoan development, but by operation of law
within the imported legal framework.
A. Split Matai Titles & Communal Factionalism
For reasons now clouded with time, two persons were permitted to first
register the Fanene matai title in 1906, when the then newly established
U.S. Naval government first began to regulate matai title registration.
The origin of dual Fanene titleholders was alluded to in testimony given
and discussed in Taofi v. Foster, 1 A.S.R. 464 (Trial Div. 1932). It
appears that at some time prior, there were two factions that had also
emerged within the Mauga family of Pago Pago, each with its own
titleholder—a Mauga Manuma and a Mauga Lei. Id. at 465. Each of
these Mauga appointed his own Fanene. Fanene Tavai and Fanene
Mataumu respectively. Id. It further appears that from this precedent,
dual Fanene title-holders have persisted. Our review of the cases reveals
that principally because of the fact of dual registration in 1906, the Court
in 1965 determined that the Fanene title was a “split title” between two
unrelated Fanene family groups, and thereby affirmed the registration of
1 Plaintiff Fanene Scanlan claims that the Fanene holders from his family
branch are the only legitimate reference in the village honorifics, or
salutation, “tei ma anoalo.” However, he readily admits to present day
realities that not only recognizes but admits his co-holder Fanene Kava to
be seated at the village council and be deferred to as the Fanene. Plaintiff
explained that the defendant and he have operated under an informal
understanding that whomever arrives first at a village council meeting
assumes the Fanene’s seat and post. It goes without saying that plaintiff’s
claim to singular legitimacy is vigorously opposed by the defendant’s side.

a second titleholder in Fanene Filo v. Vaoalii K. Fanene, 4 A.S.R. 603
(Trial Div. 1965), hereafter “the 1965 split title decision.”2 Ironically,
however, the Court early arrested the notion, and any development, of
dual Mauga titleholders. Thus in 1913, the Court in Mauga v. Taelase, 1
A.S.R. 276 (Trial Div. 1913), declared that the Mauga title was not a
split title for division among multiple titleholders because it would,
among other things, destroy the prestige and dignity of the great title.
This was later affirmed in In re Matai Title Mauga, 4 A.S.R. 132, 140
(Lands & Title Div. 1971) (“We are reversing our decision in
Tauvevematalilo [sanctioning split titles] since upon reconsideration it
was ill-advised and in substantial derogation of Samoan custom”).
The upshot of these court decisions is undeniably the following: the
attempted splitting of the Mauga title, which in turn gave rise to the
creation of split Fanene titles, was stifled by judicial fiat while its Fanene
split-title spin off was not only left undisturbed, but given the Court’s
imprimatur. The Court has thus seemingly given inconsistent effect to
fa`a Samoa.
B. Land Lalopua
We next note that in 1932 the Court, in Taofi v. Foster, had awarded the
Fanene title to Filo Foster, plaintiff Fanene Scanlan’s predecessor in
title. See generally 1 A.S.R. 464 (Trial Div. 1932). Filo then singularly
held the Fanene title for a period of thirty-three years until, as we have
seen, the Court in the 1965 split title decision allowed a Vaoali`i K.
Fanene (defendant Fanene Kava’s predecessor in title) to be registered as
a second Fanene titleholder.
While Filo alone held the Fanene title, he offered Lalopua for
registration, on October 11, 1944, as the communal property of “the
Fanene family.” This offer to register not only attracted a third-party
counter-claim, from the Mauga family, but also a counter-claim from
within the Fanene family from one Taofi, the same individual who vied
with Filo for the Fanene title in the 1932 case. Taofi attempted to claim
Lalopua as his “individually-owned” land, and the resulting land dispute
came before the Court in 1945 as Taofi v. Fanene, 2 A.S.R. 197 (Trial
Div. 1945), hereafter “the 1945 Lalopua land case.” The Court, not
surprisingly, found in favor of the extended family and against the
2 The Court here observed that “[t]he matai name register shows that Pulu
Saofeatalai was registered as the holder of the Fanene title on October 10,
1906, and that on October 30, 1906, Vaomalo was also registered as a
Fanene.” 4 A.S.R. at 604. It then concluded that “the Fanene title is a split
title.” Id.

individual family member (as well as against the third-party claimant).3
C. Split Titles & Factional Communal Ownership
In 1971, the Land and Titles Division further took up the issue of
Lalopua and redefined the scope of the 1945 Lalopua land case’s
holding—that the land belonged to the Fanene family—by declaring that
Lalopua was owned by the Fanene Filo faction of the family, to the
exclusion of Fanene Tauveve’s (defendant Fanene Kava’s predecessor in
interest) faction. Fanene Foster for Herman Scanlan v. Fetaiaiga T.
Fanene, LT No. 1089 & Fanene Foster & Richard Foster v. Tauveve
Fanene, LT No. 1154 (Consolidated), (Land & Titles Div. 1971)
(Findings of Facts and Judgment, entered Nov. 1, 1971) (hereinafter LT
Nos. 1089 & 1154). The Court therefore further held that pule lay with
the matai of Fanene Filo’s branch.
Without regard to Samoan realities, the 1971 Court in its cursorily
worded opinion simply arrived at these conclusions by first taking
“judicial notice” of and then “re-affirm[ing],” without elaboration,
“pertinent portions of the Court’s decision in the 8-1932 (Foster, 1
A.S.R. 464) and 20-1945 (the Lalopua land decision) cases between
these two families.” LT Nos. 1089 & 1154, slip op. at 4. Seven months
after, and apparently realizing that parts of Lalopua were being occupied
by Fanene Kava’s side of the family, the 1971 Court felt constrained to
add, by way of separate addendum, that those members of the other side
of the family occupying Lalopua—viz., Fetaiaiga Kava, now the present
defendant Fanene F. Kava, and her children—could nonetheless remain
on Lalopua as long as they rendered tautua (the obligation of rendering
traditional service) to the holder of pule. See generally Fanene Foster
for Herman Scanlan v. Fanene, 4 A.S.R. 66 (Land & Titles Div. 1972).
The only attempt at explanation given by the Court for the addendum
was “inadvertence and clerical error.” Id. at 67. Otherwise the reader is
provided neither rhyme nor reason for this belated amendment.
Intuitively, at least, the result seems only fair, but the underlying
reasoning is conspicuously absent while the Court’s premise remains
baffling. Quite clearly, the Court, after apparently realizing the
3 Taofi’s claim to title was simply that, a mere claim to title. In order to
establish a claim to individually owned land, a party must couple his claim
with a showing that the land was (1) cleared in its entirety or substantially
so from the virgin bush by him through his own initiative and not by, for, or
under the direction of his aiga or its senior matai; (2) cultivated entirely or
substantially so by him; and (3) occupied by him or his family or his agents
continuously from the time of the clearing of the bush. Fanene v. Magalei,
LT No. 64-77 (1977).

harshness of disentitling family members from family lands, had
effectively attempted to mitigate matters by ready resort to equity
without explanation. But by doing so, the Court has also effectively
turned Samoan custom on its head, with the cumulative outcome of case
development being the anomaly of a Samoan family split into two,4 each
with its own titleholder, and with one branch declared landless and
owing tautua to the other. This incongruent state of affairs has, not
surprisingly, proven to be a recipe for enduring turmoil and discontent.5
D. LT No. 1089 and 1154 Holdings and Land Ownership
The 1971 Court, in our view, read too much into 8-1932 (Taofi v. Foster,
1 A.S.R. 464) and 20-1945 (the Lalopua land decision) in order to find a
basis for its conclusion that Lalopua was owned only by the Fanene Filo
faction of the family. First, Taofi v. Foster was a matai title contest.
The issue here had nothing to do with landholding and the matai court
had absolutely nothing to do with Lalopua.
Second, the 1945 Lalopua land case Court specifically found that “the
true owner of the property in question is the Fanene family and Fanene
Filo, as the matai of this family is entitled to register this land as
communal land owned by him as the matai of the family.” 2 A.S.R. at
200 (emphasis added).
Noteworthy with the Lalopua land case is the fact that the land Lalopua
was offered for registration by Filo not as the communal land of Fanene
Filo’s side of the family, but as the communal land of the Fanene family.
Additionally, and to put the 1945 case in proper perspective, there was,
at the time, only one Fanene family—the family was not split until the
1965 split title decision—and one Fanene titleholder, Fanene Filo who
represented the whole Fanene family. Support for this finding—that
Fanene Filo was representing the whole Fanene family, as opposed to
only one faction of the family—is to be found in the records of the 1965
split title decision as well as in Fanene Filo v. Tauveve L. Fanene, LT
No. 1035 (Trial Div. 1970), wherein both instances Fanene Filo
vigorously objected to the proposition that the Fanene title was a split
4 The fact that the two branches of the Fanene family are not blood related
does not ipso facto render a family split into two. Indeed, the Mauga family
itself, the derivative source of the Fanene split, is comprised of three clans
who are not blood related. See In re Matai Title Mauga, MT No. 12-98
(Land & Titles Div. 2001). But as we have seen the cases have declared
that the Mauga title is not a split title.
5 See Fanene v. Fanene, 26 A.S.R.2d (Land & Titles Div. 1994), for a
sketch of the Fanene factions’ litigation history.

title. Therefore, when Filo offered Lalopua for registration in 1944, he
was operating under the premise that the family was not a split family,
and thus in 1944, he was representing all of the Fanene family. The
issue of factionalism was neither before the court in 1945 nor anywhere
within its contemplation. Nowhere within the 1945 Court’s judgment is
there even the slightest hint of factional ownership of Lalopua.
Moreover, the 1971 Court’s conclusions in LT Nos. 1089 and 1154 are
in stark contrast with our treatment of other, albeit isolated, “split” title
cases, where family lands were accorded corresponding “split” effect in
accordance with factional usage. For example, the matai title
Mulitauaopele of Lauli`i has had two titleholders from two unrelated
family groups “for at least a hundred years.” In re Matai Title
Mulitauaopele, 16 A.S.R.2d 63, 69 (Land & Titles Div. 1990). In
rejecting an attempt by one of the Mulitauaopele family lines to unify the
title by seeking to abolish the other line’s claim, the Court not only gave
effect to the fact that “the two families have different lands,” but went on
to say that “it would be contrary to Samoan custom for them to . . .
choose a single title holder with pule over both families’ lands.” Id. at
68.
[1-2] Lastly, the consequence of the holdings in LT Nos. 1089 and 1154
is the rather peculiar, if not farcical, situation of a matai title co-holder
owing his peer the subservient obligation of tautua, an obligation which
in the normal course runs from a family member to the family sa`o or
senior matai. An even more curious consequence of the LT Nos. 1089
and 1154 holdings is the resulting situation of a Samoan family
cognizant at law with a registerable matai title, but no communal lands; a
state of affairs which simply cannot be reconciled with the truism that
“the Samoan way of life has twin cornerstones, the matai system and
communal land tenure.” Fairholt v. Aulava, 1 A.S.R.2d 73, 78 (Land &
Titles Div. 1983) (emphasis added).
The twin cornerstones of the Samoan way of life are communal
land tenure and the matai system. Each is essential to the other.
Without the matai system to administer it, the communal land
system becomes anarchy. Without the communal land system,
there is no reason for the matai.
Lavata`i v. Pen, 30 A.S.R.2d 10, 15 (App. Div. 1996) (quoting Tavai v.
Silao, 2 A.S.R.2d 1, 2 (Land & Titles Div). 1983)) (emphasis added). In
Lavata`i, the Appellate Division further alluded to the constitutionally
mandated policy of protective legislation requiring the courts to interpret
statutes in a way which is protective of the Samoan custom. Id. at 16;
see also AM. SAMOA REV. CONST. art. I, § 3. What we have seen here,

however, is that the matai registration enactment has been, at least as far
as the Fanene family has been concerned, somehow given effect to
divide a once united family to the point that with subsequent case
development, one branch of that family has been disenfranchised with
respect to family land. Thus without communal land, or entitlement to
land, what essentially befalls the defendant’s side of the family is the
suggestion that one of its traditional foundations—cornerstones—is
rendered legally non-existent.
[3-4] We are loath to continue upholding this aberrant view of Samoan
custom. Although other decisions of this Court have seemingly upheld
the 1971 Court’s holdings in LT Nos. 1089 and 1154,6 we note that these
decisions, citing to the doctrine of res judicata, were grounded on mere
acceptance of the holdings in LT Nos. 1089 and 1154, without comment
or critical evaluation. Because we are of the view that the holdings of
the 1971 Court were not only wrongly footed but simply inconsistent
with the customs of the Samoan people, we decline to follow, and in lieu
of the doctrine of res judicata, we cite to the provisions of the Treaties of
Cession which require, among other things, “respect and protect[ion] . . .
of all people dwelling in Tutuila to their lands,”7 and that “the rights of . .
. all people concerning their property according to their customs shall be
recognized.”8
Findings and Conclusion
The evidence here shows that defendant’s side of the family has
occupied and shared Lalopua with members of plaintiff’s side for
generations. With the Court’s visit to view the land in question, we
noted not only shared burial ground with members of plaintiff’s branch,
but a defined area of settled occupation by defendant’s side of the family
in the way of permanent structures with subsistence plantations toward
the mauga side, consistent with longstanding and settled occupation.
This settled occupation exists side by side with a sub-faction within the
Fanene Filo branch, Johnny Foster’s family, who have been quite
content to co-exist in harmony side by side with the defendant and her
family.9 The evidence further suggests that the animosity been the
6 See generally Fanene v. Fanene, 19 A.S.R.2d 69 (Land & Titles Div.
1991); Fanene v. Fanene, 26 A.S.R.2d 8, 12 (Land & Titles Div. 1994).
7 April 17, 1900 Cession of Tutuila and Aunu`u (February 20, 1929, ch. 45
Stat. 1253.)
8 July 16, 1904 Cession of Manu`a Islands (May 22, 1929, ch. 6, 46 Stat. 4.)
9 Plaintiff has also encountered familial estrangement within his own
branch of family. See In re Petition to Remove Fanene Title, MT No. 04-95
(Land & Titles Div. 1995).

plaintiff and the defendant in this matter, as evident by the number of
times they have appeared before the Court in recent times, predates to
the 1971 litigation, when Fanene Filo signed a separation agreement on
Lalopua in favor of Herman Scanlan, now Fanene Scanlan, which was
objected to then by the present defendant. According to the defendant,
plaintiff had at the time wanted to put up a structure on Lalopua, in
anticipation of a lease to the one of the canneries and in derogation of
her family’s use of the land.
Since both parties have each assumed the matai title Fanene, the discord
appears to have magnified. Plaintiff has variously complained about
defendant’s unwarranted intrusion into his sphere of pule, as upheld by
the Courts, while defendant has countered with claims of capriciousness
on the part of plaintiff in the exercise of pule.10 Defendant claims, for
example, that plaintiff has resisted her obtaining requisite government
permits to allow her side of the family to do necessary repairs and
renovations to their deteriorating homes.
Quite clearly, the resultant and atypical state of affairs with the once
unitary Fanene family of Pago Pago persists to date with the plainly
unworkable principle of two families, two matai, but one pule. From the
evidence, and from our review of Fanene family history, we conclude
that the 1971 Court’s interpretation of the 1945 Court’s holding in the
Lalopua land case, viz., that land Lalopua is exclusively owned by only
one branch of the Fanene family, was not only unnecessary but, as noted
above, in derogation of defendant’s branch’s rights to “their lands” in
accordance with Samoan custom. See April 17, 1900 Cession of Tutuila
and Aunu`u (February 20, 1929, ch. 45 Stat. 1253.)
In our reading of the 1945 Lalopua land decision, all that the Court
decided was that the land Lalopua was the communal property of the
Fanene family—nothing more, and nothing less. In rejecting Taofi’s
individually owned claim, the 1945 Court did not thereby throw out the
communal entitlement of those family members who are not members of
Fanene Filo’s branch, as the 1971 Court has necessarily implied.
10 The Samoan concept of pule, not to be confused with the notion of
“ownership,” is the power or trust vested in the senior matai to administer
family lands. Lutu v. Taesaliali`i, 11 A.S.R.2d 80, 87-88 (Land & Titles
Div. 1989). However, a matai’s authority or pule over family lands is not
unfettered when it comes to dealing with the rights of family members;
rather, it must be used for the benefit of family members justly and fairly.
It must not be used unreasonably and unjustly. Pen v. Lavata`i, 25
A.S.R.2d 164, 168 (Land & Titles Div. 1994), aff’d Lavata`i v. Pen, AP
No. 08-94 (App. Div. 1996).

[5] Having regard to fundamental precepts of Samoan custom, as
enunciated in Fairholt v. Aulava, Tavai v. Silao, and Lavata`i v. Pen,
discussed supra, and taking into account Fanene family history as it
evolved incongruously within the courts, we opt to follow the literal
holding of the 1945 Lalopua land decision and decline to follow the
unnecessary interpretation of the 1971 Court in LT Nos. 1089 and 1154.
To the present panel of Samoan Associate Judges, a landless Samoan
family with a legally recognized matai, especially with a longstanding
history as communal land occupants, does not add up. To the contrary,
the Court here is satisfied, and finds, that defendant’s branch of the
family are also members of the Fanene extended family attached to the
Village of Pago Pago, and as such are accordingly entitled to Fanene
communal family holdings Lalopua, as they have been occupying, in
accordance with the 1945 Lalopua land decision. As such, the defendant
and her branch of the family’s entitlement to communal land is a
proprietary right within the due process clause of the territorial
constitution. AM. SAMOA REV. CONST. art. I, § 2; Fairholt, 1 A.S.R.2d at
74; Lutu v. Taesaliali`i, 11 A.S.R.2d 80, 87 (Land & Titles Div. 1989).
We further conclude, consistent with fundamental precepts of Samoan
custom that pule, at least with regard to those portions of Lalopua, under
occupation and cultivation by defendant’s family, lies in their sa`o, or
senior matai, viz., Fanene F. Kava.
Plaintiff’s petition for eviction on the basis of pule must be, and it is
hereby denied. Judgment will enter for defendant.
It is so ordered.