2ASR2d

2ASR2d

M/V Conquest; Security Pacific National Bank v.


SECURITY PACIFIC BANK, et al.

v.

M/V CONQUEST, et al.

High Court of American Samoa
Trial Division

CA No.17-84

January 10, 1985

__________

Since there is no United States district court in Samoa this court may foreclose a preferred ship mortgage under 46 U.S.C. section 951.

Counsel: For plaintiff Security Pacific, Roy Hall by Gary Hynds
For intervenor Star-Kist, Talalelei Tulafono

GARDNER, C.J.

On December 5, 1984, I made a ruling in an order denying plaintiff's motion for summary judgment. That ruling contained a serious flaw. It was wrong. [2ASR2d40]

At issue was the meaning of a sentence contained in 46 U.S.C. 951, which reads, "Original jurisdiction of all such suits [foreclosure of preferred ship mortgages] is granted to the district courts of the United States exclusively." I held that since this court is not a United States district court it has no such jurisdiction. The ruling was succinct, simple, direct, straightforward--and erroneous. This unfortunate result was obtained by the simple expedient of extracting that one sentence from the statute and construing its meaning without reference to the entire statutory scheme. However, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole. The law favors a rational and sensible interpretation which will reach a reasonable result consistent with the statutory scheme. Therein lay my error. I failed to consider the entire statute and the purpose behind the statute in making my ruling.

A statute is passed as a whole and not in parts, sentences and sections. It is animated by one general intent or purpose. Here, the intent of the ship mortgage act was to stimulate private investment in the shipping industry by affording substantial security to investors. Detroit Trust Co. v. The Thomas Barlum (1934) 293 U.S. 21, 39. That purpose is hardly advanced by a ruling which limits ship mortgage foreclosures to United States district courts at all times and all places. Obviously, there must be a United States district court available or the sentence doesn't make any sense. Lacking a United States district court to exercise its "exclusive," "original " jurisdiction, the mortgage can be foreclosed in any court exercising valid admiralty jurisdiction.

That is the only interpretation that is consistent with the statutory purpose and scheme. Otherwise, all a ship owner has to do is keep his ship in a port not within the jurisdiction of a United States district court (American Samoa) and thumb his nose at his creditors. This would hardly "stimulate private investment in the shipping industry by affording substantial security to investors."

The fact of the matter is that this one sentence was put into the statute for the sole purpose of insuring that no state court would attempt to exercise jurisdiction over a ship mortgage. This was so obvious to admiralty expert J. Bond Smith that in his article entitled "Ship Mortgages" in 47 Tulane Law Review 608 he disposes of it in a curt footnote at page 611, "The grant of exclusive jurisdiction in the district court should not be interpreted as meaning a preferred mortgage may not be foreclosed in the court of a foreign nation. The legislative intent in the exclusive grant was to preclude state court jurisdiction." Called upon to substantiate this statement, Mr. Smith has filed an affidavit containing a legislative history of the act which clearly indicates such was the legislative intent. See H. Bond Smith affidavit of December 20, 1984.

Admiralty lawyer Richard Barnett (See Barnett affidavit of December 11, 1984.) advises us that he has been involved in preferred ship mortgage proceedings against United States flag vessels in Egypt, India, Singapore and Aden. (Mr. Smith adds Japan.) I would presume that such proceedings were a matter of comity or treaty. Rather obviously, no United States district court had jurisdiction in any of these locales. The United States government was involved in most of these proceedings and, according to Mr. Barnett, "no suggestion was even made that the foreign courts lacked jurisdiction to foreclose the preferred mortgages on those vessels given pursuant to the U.S. Ship Mortgage Act." Apparently, the first such suggestion came as a result of a temporary--I-hope--aberration on the part of the Chief Justice of the High Court of American Samoa. [2ASR2d42]

Additionally, it would appear that such mortgages have been foreclosed in United States territorial courts, although admittedly this precise issue was not raised. (See Ares v. S.S. Colon (D.C.Z. 1967) 269 F. Supp. 763; Northern Commercial Co. v. The Puffin (D. Alaska 1959) 170 F. Supp. 28. Arguably, these cases are distinguishable since those courts had congressional grants of district court jurisdiction under the so-called "territorial exception" to the rule that only United States district courts can exercise the jurisdiction of an article III court. See Northern Pipeline Construction Marathon Pipeline (1982) 458 U.S. 5, 73 L. Ed. 2d 598; American Insurance Co. v. 356 Bales of Cotton (1828) 26 U.S. 510. (Of course, one could split hairs and contend that a court with a congressional grant of district court jurisdiction is still not a district court.)

Thus, the proper interpretation of that sentence, when viewed in the statutory scheme, is that the United States district court has exclusive jurisdiction in all cases in which such a court is available. Otherwise it doesn't make sense. Thus, at the present time all fifty states, our two commonwealths (Guam and the Virgin Islands) are within the jurisdiction of United States district courts and all preferred ship mortgages in those states, commonwealths and territories must be foreclosed in United States district courts to the exclusion of state, commonwealth or territorial courts.

That leaves American Samoa. American Samoa is not within the jurisdiction of a United States district court. Therefore, no such court can entertain "exclusive" jurisdiction of the foreclosure of ship mortgages in this territory.

Neither is the High Court of American Samoa a federal court, Vessel Pacific Princess v. Trial Division, (1984) 2 A.S.R.2d 21, nor has it been granted district court jurisdiction by congress. See Northern Pipeline and ]356 Bales of Cotton.

It is a territorial court of a territory of the United States. As such it gives full faith and credit to the laws of the United States. See U.S. Constitution, article IV, sections I and 2; 28 U.S.C. section 1738; Hazen Research, Inc. v. Omega Minerals, (5th Cir. 1974) 497 F .2d 151. Thus, the principles I distill from all of the above:

1. If there exists in a political entity a United States district court having geographical jurisdiction (the fifty states plus all commonwealths, territories and possessions except American Samoa), United States preferred ship mortgages can be foreclosed only in the appropriate United States district court.

2. If there exists a political entity which has a court with admiralty jurisdiction and which gives full faith and credit to United States laws but which is not within the geographic jurisdiction of a United States district court (American Samoa) the admiralty court in that entity (the High Court of American Samoa) has jurisdiction to foreclose preferred ship mortgages.

3. In all other political entities (foreign nations, their territories and possessions) the foreclosure of preferred ship mortgages is a matter of treaty or comity. (Such foreclosures would probably by chancy in Havana, Shanghai or Vladivostok.)

Thus, I conclude, belatedly, that the High Court of American Samoa has jurisdiction to enforce a ship mortgage.

The holding of the court in Interocean Ships, (1984) 2 A.S.R.2d 21 is not to the contrary. There, on the basis that this court was not a United States district court, the court granted a motion to dismiss a limitation of liability proceeding under U.S.C. section 184. Proceedings under that section were far beyond the jurisdiction of this court since they [2ASR2d43] involve the injunction of proceedings in United States district courts or state courts and the marshaling of claims of creditors.

Parenthetically, I would observe that my original ruling would have a devastating impact on the tuna fishing industry and the economy of American Samoa which depends on that industry for a major part of its economy. Lenders simply wouldn't lend money on a purse seiner knowing it might go to American Samoa and avoid foreclosure. While not purporting to be an expert in the field of tuna boat financing, I have observed that most of these boats are in hock up to their eyeballs and if this source of financing were cut off, there soon wouldn't be any such boats plying the waters of the South Pacific and selling their wares to the canneries of American Samoa. I don't think that was quite the intent of the ship mortgage law.

The order of December 5, 1984, denying plaintiff's motion for partial summary judgment is vacated. The court holds that plaintiff has a preferred ship mortgage on the motor vessel Conquest under 46 U.S.C. sections 921 et seq. and that it may be foreclosed under 46 U.S.C. section 951 in this court in the sum of $1,600,000 plus interest, attorney fees and costs.

**********

Poumele v. Ma'ae,


GALEA'I POUMELE, Appellant,

v.

TA'EI MA'AE, Appellee.

High Court of American Samoa
Appellate Division

AP No. 4-77

May 21, 1984

__________

Only the senior matai of the family may order a survey and he may not delegate that authority.

Before GARDNER, Chief Justice, Presiding, KING,' Acting Associate Justice, HEEN,** Acting Associate Justice, TAUANU'U, Chief Associate Judge and OLO, Associate Judge.

Counsel: For the appellant, Leulumoega S. Lutu
For the appellee, Steven Watson

This case was previously decided in 1980 and was published at 1 A.S.R.2d 5. Subsequently a rehearing was granted but never took place. The case sat dormant until 1984 when the rehearing finally took place.

Appellee Ta'ei Ma'ae, a non-titled member of the Ma'ae family, brought an action on behalf of that family to register the land So'a as the communal land of that family. To do so he had a survey done of the property. Ma'ae Malelega, the senior matai of the Ma'ae, did not order the surveyor bring the lawsuit. By reasonable if somewhat strained inference it can be said that substantial evidence would support an implied finding that he delegated to appellee, who was his son, the authority to make the survey and bring the a [2ASR2d5] lawsuit. The actual testimony is that he "agreed" to the survey.

Substantial evidence supports the decision of the trial court. Nevertheless, prejudicial error was committed when the trial court ruled that the action had been brought in compliance with A.S.C.A. section 27.1202, now A.S.C.A. section 37.0102(a).

That section provided that "only the senior matai of a Samoan family has the authority to request a survey of communal property of that family." Appellee contends the senior matai can delegate that authority. We disagree. We hold that the senior matai may not make such a delegation.

It takes no citation of authority to point out that by the Treaty of Cession, the American Samoan Constitution and the statutes of American Samoa we are admonished to protect the Samoan way of life. The twin cornerstones of that way of life are the communal land system and the matai system. (1)

The matai system is, as we said in Fairholt v. Aulava (1983) 1 A.S.R.2d 73, 78, is alive and well. It has survived the advent of Christianity, the imposition on it of a governmental system based on democratic principles and exposure to a western social system based on the individual rather than the family. Actually, the most clear and present dangers to the system and ones we see here in court with depressing frequency are greedy matais and absentee matais. The former enrich themselves by the individual acquisition of property at the expense of the family. The latter acquire titles, then move away, leaving their responsibilities to others. Of course, as the testimony in Fairholt revealed, the vast majority of matais are diligent, unselfish and dedicated to the protection of the family. Nevertheless, a few bad apples do embarrass the system. (2)

The duties and responsibilities of a matai defy common law labels. They are more than chiefs who are merely leaders. They are more than trustees who merely protect property. A matai has an awesome responsibility to his family. He must protect it and its lands. He acts for the family in its relations with others. He gives individual family members advice, direction and help. He administers the family affairs, designates which members of the family will work particular portions of the family land, and determines where families will live. His relationship to his family is a relationship not known to the common law.

It was with this relationship in mind that the Fono provided that only the senior matai has the authority to request a survey of communal land of a family. The statute does not say that the senior matai or his designee may do so. It says specifically that the senior matai may so act. This is consistent with the Samoan custom and tradition that only the matai may act for the family. To permit others to do so would be inconsistent with the Samoan way of life. If, contrary to the families' wishes, a senior matai refuses to order a survey he may be removed.

There are already too many absentee matais who, having accepted the title and its responsibilities, choose the cool climate of Carson, [2ASR2d6] California, over the humidity of Samoa. Allowing these absentee matais to act through intermediaries would be fatal to the Samoan way of life.

The Fono said, "the Senior Matai." We presume the Fono meant exactly what it said. An example of a statute in which the Fono has afforded an alternative to the sole authority of the senior matai in land disputes is A.S.C.A. section 43.13O9(b). That section provides that only the senior matai (sa'o) is authorized to bring an injunction action involving communal land but when the title is vacant or the sa'o is incapacitated at least two blood male matai members of the family over 18 or, lacking matais, two blood members of the family over 18 may bring the application. The Fono has conspicuously not provided an alternative to the authority of the senior matai to request a survey of communal land.

Judgment of the trial court reversed on the ground that A.S.C.A. section 27.1202(d), now 37.0102{a), was not complied with.

**********

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

**Honorable Walter M. Heen, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting by designation of the Secretary of Interior.

1. Just how well the courts have protected the communal land system is a matter of debate. The concept of individually-owned land, a concept inconsistent with the Samoan way of life, crept into the law via the judiciary. See Leuma v. Willis (1980) 1 A.S.R.2d 48.

2. Efforts to describe Samoan customs in English have had some ludicrous results. For example, in an article entitled "Judicial Intervention, in Matai Title Succession Suits in American Samoa," which appeared in the September 1983 copy of Oceania, it is said that an has been described as a "non-exogamous cognatic descent group identified by the title of its eponymous founder."

Tuivai v. Suiava,


AMINI TUIVAI, Plaintiff,

v.

SUIAVA PELE, aka "ALAMOANA," AMERICAN
SAMOA GOVERNMENT, IMMIGRATION BOARD,
AVIATA FA'ALEVAO and MAKA TUIHALAMAKA, Defendants.

High Court of American Samoa
Trial Division

CA No. 118-83

June 5, 1984

__________

It is not necessary to file a tort claim against the government prior to bringing a civil rights action.

A.S.C.A. section 41.0606, providing that aliens must have a sponsor, is subject to abuse but is not unconstitutional.

Before MURPHY, Associate Justice, Presiding, TAUANU'U, Chief Associate Judge and FAOA, Associate Judge.

Counsel: For the plaintiff, Watson & Reardon by William Reardon
For defendant Pele, Mulitauaopele Ivi
For defendants ASG, Immigration Board and Fa'alevao, Donald A. [2ASR2d36] Griesmann, Assistant Attorney General
For defendant Tuihalamaka, no appearance, default entered

This matter came on for trial on May 23rd and May 24th, 1984, before this court. The case being fully submitted was taken under advisement. The court finds, concludes and orders as follows:

STATEMENT OF THE CASE

Article 1, section 4, of the Revised Constitution of American Samoa provides for respect for the dignity of the individual. Because this concept is obviously at issue in this case and because counsel have devoted much time and attention to the matter, the court has undertaken to address this case in somewhat more detail than perhaps would normally be expected.

Plaintiff filed a multi-count complaint alleging violation of rights pursuant to 42 U.S.C. sections 1983, 1985 and 1986, and a claim for tort. He also sought injunctive relief, mandamus and a declaration that A.S.C.A. section 41.0606 is unconstitutional.

Defendants are plaintiff's uncle, Maka Tuihalamaka ("Maka"), Suiava Pele aka Alamoana ("Suiava"), American Samoa Government ("A.S.G."), Immigration Board ("board") and Aviata Fa'alevao ("attorney general"). Contemporaneously with the commencement of this lawsuit, plaintiff with others filed a habeas corpus petition (CA No.116-83). The decision and order entered therein on October 19, 1983, are germane to this case. Judicial notice is taken of them and a copy of them is appended.

FACTS

The following facts are more or less undisputed. Plaintiff is a 23 year-old native citizen of the Kingdom of Tonga. He is talented and ambitious. Maka resides in the territory of American Samoa where he operates a variety of businesses including a farm, a sewing shop, an auto repair shop and a curio manufactory. He also operates a passenger boat between American Samoa and Tonga. In September of 1981 plaintiff came to this territory, sponsored by Maka.

In October 1982, after a hearing, the board granted plaintiff, along with 25 other Tongans (a total of 26) permission to remain in the territory for one year "for private employment and farm work for the sponsor's company only." Plaintiff did some work for Maka but in fact spent a good deal of time out of the territory and in the United States. Plaintiff also went into business for himself as a commercial artist. He applied for and received a business license for 1982-1983.

Through his uncle he met and became acquainted with Suiava. Sutava is a local businessman. He owns and operates snack shops. He was also employed by American Samoa Community College ("college") as a counselor. Plaintiff wanted to attend the college. Plaintiff did some painting on one of Suiava's mobile snack bars for which he neither asked for nor received payment. From time to time plaintiff would eat at Suiava's shop, sometimes on credit and occasionally borrow money from Suiava. Apparently he paid for what he ate and paid back what he borrowed.

In January 1983 plaintiff registered at the college and began to attend classes. He successfully completed the semester and registered for the summer session in June. His troubles began when he registered for the fall semester. The college pays close attention to the immigration status of its students. Officers are invited to attend registration and the registration [2ASR2d37] forms require immigration information. Everyone seems to be under the impression that "clearance" is required from the board for a student to attend the college. Apparently this "clearance" is often granted, as a number of aliens, mostly Western Samoans, attend the college.

At any rate, Suiava called to the attention of the college authorities plaintiff's immigration status It was eventually determined that he had not received "clearance" from the board to attend college. He was suspended pending clarification of his immigration status.

About that time plaintiff went to the attorney general to complain that Suiava was attempting to coerce him into doing free painting in exchange for silence as to plaintiff's immigration status. A complaint to the attorney general about Suiava proved as helpful to plaintiff as would have been an appeal by Custer to the A.I.M. Political Action Committee about his treatment at Little Big Horn.

The attorney general immediately ordered plaintiff and Maka to appear before the board. Maka, undoubtedly sensing his nephew had committed a gaffe, quickly revoked his sponsorship and offered to send his nephew back to Tonga on his boat. By the time the boat was ready to leave, however, plaintiff, had obtained--counsel and filed the habeas corpus action referred to above, which resulted in a stay of board action. Since then other board hearings have been conducted. Plaintiff has a new sponsor and has official board permission to remain in the territory until April 1985. Suiava, embarrassed by the uproar, resigned his position at the college.

DISPUTED FACTS

As might be expected the testimony of plaintiff and Suiava differed sharply. Plaintiff claimed that Suiava promised to use his position at the college to help him get in. In return he wanted plaintiff to do free painting for him. When plaintiff made it clear he expected to be paid Suiava exposed him as not having immigration "clearance" to attend' college.

Suiava denies all this. He says plaintiff was in college before he even met him. He volunteered to do a painting job for Suiava in April 1981. Suiava treated him as a member of his family and did not need him to do any painting. Suiava being a good artist himself. Even if he did point out plaintiff's immigration status, which resulted in suspension from college and near deportation, he was only doing his duty as a conscientious college counselor. He wants damages against plaintiff on a counter-claim for loss of his job.

DISCUSSION

The truth may be somewhere between the two versions. No matter. Neither theory is actionable. Even if Suiava reported plaintiff out of spite rather than a sense of duty we know of no theory to find Suiava liable for reporting a fact. Even if Suiava is right, he resigned voluntarily. Any los he suffered was due to his own choice. Not every quarrel is subject to judicial resolution.

We turn now to matters perhaps of broader interest.

A curious aspect of this case is how the immigration board gets into the business of deciding who gets into college. Certainly no one should be permitted to attend the college who is not legally in the territory. But once that determination is made it is up to the college to admit or reject applicants. True, one's immigrati6n status determines the scope of employment one may undertake in the territory. But other activities are not sub[2ASR2d38]ject to board approval. The alien may apply to the hospital for treatment, the library for books and the college for admission. It is up to those institutions, not the immigration board to determine whether or not he qualified for their services. (Notwithstanding that, the board has granted itself such authority at A.S.A.C. section 41.0213. Apparently it embraces Robert Browning's idea that one's reach should exceed one's grasp.)

Turning at long last to the specific issues of this case, we first note that plaintiff did not comply with the Government Tort Liability Act (A.S.C.A. title 43, chapter 12) by filing the required claim as a prerequisite to litigation. A.S.G. correctly points out that such failure defects the count for tort. Such a filing, however, is not required for civil rights claims under 42 U.S.C. section 1983 et seq.

The attorney general concedes, as indeed he must, that those statutes apply to the Territory of American Samoa.

Every person who, under color of any statute, ordinance,
regulation, custom or usage, of any State or Territory...
subjects any citizen of the United States or person within
the jurisdiction thereof to the deprivation of any rights...
secured by the Constitution and laws, shall be liable....
[Emphases supplied.]

The question then is of what rights was plaintiff deprived? His right to remain in the territory? He is still here. He violated the terms of his authorization to remain, not by attending the college, but by engaging in employment beyond the scope of the authorization, to wit: gong into business for himself. True, Maka revoked his sponsorship because he perceived that the revocation was in his own best interests. But this was not under an order from he attorney general. The efforts of the attorney general to remove plaintiff were examined and condemned in CA No. 116-83. They amounted to an attempt, rather than an actual deprivation. At any event it is difficult to see what right plaintiff had to remain in the territory once the sponsor withdrew.

This brings us to plaintiff's next claim, to wit: the sponsorship statute is unconstitutional. A.S.C.A. section 41.0606 simply provides that aliens remaining here must have a sponsor. Clearly the original intention of the statute was to provide financial responsibility for the maintenance and potential return of aliens. The potential for abuse is obvious. In the first place, there is no limitation on the number of persons one may sponsor. Once here, the alien is virtually at the mercy of his sponsor, since apparently a sponsor can withdraw his sponsorship at any time without cause, and the result will be deportation of the alien. However, potential for abuse does not necessarily render a statute unconstitutional. The entire immigration act is suspect (See Ki v. Immigration Board (1983) 1 A.S.R.2d 99 and other decisions of the high court.) One can only express the hope that sooner or later the legislature will address this matter.

As to the plaintiff's prayers for mandamus and injunctive relief, they seem to have been resolved by the board's grant of permission to remain in the territory.

CONCLUSIONS

1. Title 42 U.S.C. sections 1983 et seq. Apply in the Territory of American Samoa. In order to proceed under those statutes it is not necessary to file administrative claims under the government tort liability act. [2ASR2d39]

2. Plaintiff failed to sustain his burden of proof in that there is insufficient showing that he was deprived of any rights, privileges or immunities secured by the Constitution and laws.

3. Plaintiff failed to sustain his burden of proof as to tortious conduct on the part of any defendant. Furthermore, plaintiff failed to comply with the government tort claims act.

4. Plaintiff's claims for mandamus and injunction were abandoned. Also, they are rendered moot by the board's grant to plaintiff of permission to remain in the territory.

5. Plaintiff has failed to demonstrate that A.S.C.A. section 41.0606 violates the United States Constitution.

ORDER

Plaintiff's prayers for relief are denied. Parties to bear their own costs.

**********

Tiamu; Punaloa v.


ATOFAU PUNALOA, Defendant/Appellant,

v.

LOPA TIAMU, et al., Plaintiffs/Appellees.

High Court of American Samoa
Appellate Division

AP No. 27-83

April 8, 1985

__________

If a party with a good faith belief of ownership builds home on the property of another, the court must fashion a remedy that avoids economic waste and unjust enrichment. [2ASR2d46]

Before MURPHY, Associate Justice, Presiding, KING* and HEEN,* Acting Associate Justices, TAUANU'U, Chief Associate Judge and TAUPULE, Associate Judge.

Counsel: For the appellant, Su'esu'e Lutu and Aviata Fa'alevao
For the appellee, Albert Mailo

MURPHY, J.

This litigation involves a three-acre parcel of land which both parties contend is the communal land of their respective parties. The seeds of this lawsuit were sown during the war, when in 1942, the navy constructed an airstrip in the western district of the island. It preempted land claimed by several Samoan families. Under the emergency conditions then prevailing little attention was paid to the niceties of land titles. Some sums of money were handed out by the naval administrators to various matais, thus giving the matais the impression that their claims were being recognized by officialdom and leading to later confusion. After the war the navy abandoned the facility and much of it reverted to bush. As the population grew various families have moved into the area and inevitably their claims came into conflict. It is out of this background that the present case arose.

Atofau Punaloa is the holder of the matai title Atofau. Before him his father was the title holder. Sometime in 1975 Atofau's father assigned him the subject land. He started to clear the jungle in preparation for constructing a house. Lopa, plaintiff-appellee, brought an action in 1977 to restrain the clearing and construction. A temporary restraining order was issued by Justice Miyamoto on January 14, 1977, and was continued on April 28, 1977. Other interested parties intervened. A pre-trial order issued but nothing was done to take the case forward and on April 21, 1981, Justice Miyamoto ordered the case dismissed, without prejudice, for lack of prosecution.

Atofau apparently went ahead and built a four-bedroom home and a retail store. In the meantime, Lopa filed a new case on June 10, 1981. He asked for a temporary restraining order. On June 22, 1981, the court (Justice Murphy presiding) denied the application for a temporary restraining order. A pre-trial order was entered on April 2, 1982. Nothing was done by Atofau and a default judgment was entered on September 28, 1982. On motion to set aside the judgment the court (Murphy) found Atofau had not been properly represented and set aside the default on April 4, 1983. On June 29, 1983, Lopa filed yet another action seeking, inter alia, another temporary restraining order. On July 13, 1983, Justice Gardner found no adequate showing of irreparable harm or a substantial likelihood Lopa would prevail and denied the temporary restraining order and consolidated all cases for trial.

Trial was held August 18, 1983, and resulted in a finding on August 22, 1983, that the subject land is communal land of the Lopa family and directing counsel for plaintiff to prepare findings, conclusions and judgment which were approved on September 1, 1983. (1) This appeal followed.

The trial court's holding is straightforward. Lopa owns the land; Atofau doesn't. But while the litigation was going on, Atofau built houses on the land. What happens now? The judgment infers, but does not state, [2ASR2d47] that Atofau can remove the houses. This might have made sense when Samoan houses consisted of posts and a thatched roof. When one is dealing with modern American-style structures removal constitutes great economic waste. On the other hand a family should not be deprived of its land because someone, even acting in good faith, builds a structure upon it.

As stated earlier this situation is not unique. Sometimes a matai will give a non-family member permission to build on family land. A successor matai may rescind that permission, saying, and rightly so, the previous matai did not have authority to alienate communal land. Some equitable solution should be fashioned by the court.

Some state courts have addressed a similar problem in the field of economic waste. This usually occurs when an architect or contractor makes a mistake that would cost so much to correct that some alternative must be fashioned. County of Maricopa v. Walsh & Oberg Architects, Inc. (Ariz. App. 1972) 494 P.2d 44; Blecick v. School District No.18 (Ariz. App. 1965) 406 P.2d 750.

In this case a party acting in good faith at the direction of his matai has built his home and store on another family's land. The land owner did not respond with diligence. He filed a lawsuit in 1977. It was dismissed four years later for lack of prosecution. To suggest now, as does the judgment entered, that the structures be removed makes no sense.

The judgment as entered should be vacated. The matter is remanded to the trial court to find some solution which would avoid economic waste. Suggested alternatives would be to determine the value of the land and the structures and to set a reasonable sum to compensate the land owner for the loss of his land or to compensate the builder for the loss of his structures. Any other solution which will avoid economic waste or unjust enrichment will be consistent with this decision.



**********

*Honorable Samuel P. King, United States District Judge, District of Hawaii, sitting by designation of the Secretary of Interior.
**Honorable Walter M. Heen, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting by designation of the Secretary of Interior.

1. The findings, conclusions and judgment were prepared by prevailing counsel and went beyond the announced decision of the trial court. The judgment is conditional.

Tavai v. Silao,


TAVAI V. KALIOPA, Plaintiff,

v.

VITALE SILAO, DOREEN SILAO,
JACK HARRIS, MEKE HARRIS, Defendants.

High Court of American Samoa
Land and Title Division

LT No. 6-79

February 16, 1981

__________

Samoan land concepts, not common law property rules, determine the outcome of disputes over use of communal land. Assignees of communal land must render services to the matai.

Before GARDNER, Chief Justice, Presiding, TAUANU'U, Chief Associate Judge and FAOA, Associate Judge.

Counsel: For the plaintiff, Roy J.D. Hall, Jr.
For the defendants, Tauivi Tuinei

In 1968 Tavai Esela was the senior matai of the Tavai Family in the village of Pago Pago. The family owned certain communal land known as "Molisamoa." In 1968 Tavai Esela gave Defendants Vitale and Doreen Silao permission to use a portion of that land for the purpose of building a dwelling upon it. A separation agreement was executed, the Silaos constructed a dwelling house on the property and, we assume, lived in that house. Then in 1976 the Silaos moved to the United States and rented the house to third parties. This was without the permission of the matai.

For a considerable period of time the Silaos received rent for the house from these third' parties. The present tenant pays no rent to ,the Tavai Family. The Silaos have failed to render services to Tavai Esela or to Plaintiff Tavai V. Kaliopa, successor to Tavai Esela. Tavai V. Kaliopa testified that the Silaos were not members of the Tavai Family although we note from defendants' answers to interrogatories that Doreen Silao claims her mother's brother married Tavai Esela's sister.

DECISION

The case has been briefed and argued at length. Plaintiffs contend that, under well-established principles of law, since defendants have not rendered service to the matai and, since a license was created, the matai or licensor may revoke the license and retake the property without any compensation for improvements. Defendants contend that, under equally well established principles of law, because of the improvements to the land and the separation agreement, the license is now irrevocable and that they now own the property free and clear.

It should come as a surprise to no one that we agree with neither contention.

As Justice Murphy has often commented, the so-called law in the field of communal land ownership in American Samoa consists of a series of ad hoc decisions in which various courts have come to varying results in differing factual situations. This has resulted in what Justice Murphy calls the Law of Convenience. (1) This is not at all surprising as, during the last 83 years [2ASR2d2] the members of this court have tried to blend a thousand-year-old Polynesian culture with a contemporary legal system which has its roots in the English common law.

The Treaty of Cession guaranteed the Samoan way of life and the Constitution of American Samoa advises that it is our responsibility to protect persons of Samoan ancestry against destruction of the Samoan way of life. A.S.C.A. section 1.0201 states that we should apply the common law of England ''as is suitable to conditions in American Samoa." Section 1.0202 states that the customs of the Samoan people are to be preserved. A picture emerges that is bright and clear-the protection of the Samoan way of life is the court's primary responsibility.

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 a matai.

In American Samoa, the family owns the land. A matai, selected by, and "object to removal by, the family, allots the land to family members who pay a type of compensation comparable to rent in the way of service to the matai-actua1ly, to the family. In return the matai undertakes the protection and well-being of the family members. Such is the basic Samoan custom and tradition. (2)

We western judges, schooled in the common law, valiantly attempt to support the matai system and communal land tenure and, in so doing, all too often confuse the issues by attempting to apply common law labels with which we are comfortable to factual situations which are controlled by Samoan custom and tradition. Accordingly, the average opinion sets forth a factual situation, states the controlling Samoan custom, then attempts to apply a common law principle-together with supporting citations-in an attempt to justify the decision. (3) We should stop trying to rationalize Samoan customs and traditions by recourse to common law principles and precedents. We should accept Samoan customs and traditions as controlling authority. These customs and traditions need no common law support. Actually common law principles, which are based on private ownership of land, are often the antithesis of Samoan customs and traditions which are based on communal land tenure.

For example, previous courts have labeled transactions such as the one involved in this case a license. However, at common law license is granted [2ASR2d3] by a private person, is revocable at any time at the will of the licensor and does not survive beyond the death of the licensor. Here, the matai has no personal interest in the land. The land is owned by the family. Some perplexing questions arise. Why isn't it privilege? Can a matai give a license? Can the family? If so, how and in what form? If either can, what is the duration of the license? If expenditures are made in reliance on the license does it ripen into an easement? An easement is an interest in land. What kind of an interest in land? Individual? Why not a profit? Obviously, applying common law principles to a situation such as this opens a real can of worms.

So why not call the transaction by its Samoan name, "tofi," the act by which a matai assigns a family member a parcel of communal land? We should then treat it as a Samoan institution which has no counterpart in the common law. So, without recourse to common law principles we then decide the case on Samoan customs and traditions. We proceed to do so.

We will assume for the purpose of this decision that the defendants' are family members although the record is to the contrary. Even so they are not entitled to retain the use of that land. The following Samoan customs and traditions control. without resort to the common law.

For some seven years they have resided in the United Slates. An assignee abandons the land when he moves from it. Maea v. Tali (1981) LT 95-79. Additionally. defendants have failed to render services to the matai as is their duty. Leapaga Westbrook (1967) 4 A.S.R. 748. Under either situation the matai has the power to evict the user of communal property. Itumalo Falealili (1980) LT 33-79. Therefore. plaintiff has the authority to evict these defendants from the land in question and the land will be restored to the family.

We find the existence of the separation agreement meaningless in the context of this case. That separation agreement merely separated the house from the land so that the house could become meaningful collateral for lending institutions-. By this device they avoided the law of fixtures (a common law concept). the home did not become affixed to communal land and thus worthless as collateral. In no way did the separation agreement change the status of the parties vis-a-vis the use of the communal land.

Thus. the family owns and has the use of the land.

The house is left dangling. It is clearly the separate personal property of the defendants. Since Samoan customs and traditions did not contemplate a separation agreement. much less palagi-type houses, we find no controlling authority in those customs and traditions. Instead we rely on A.S.C.A. section 3.0242, which admonishes the land and title division of the high court to act in such manner as it considers most consistent with "natural justice and convenience" - a wonderfully imprecise standard which affords the utmost flexibility in arriving at equitable results consistent with the Samoan was of life. (4)

Thus, as to the house, the decision is as follows:

1. Defendants may remove the house and, if they chose to follow this avenue, they must do so within thirty days of the date of this opinion.

2. If the defendants do not chose to remove the house. the parties may agree on a mutually acceptable price by which the family will buy the house. This decision must be made within sixty days of the date of this opinion.

3. If neither (1) nor (2) transpires the court will appoint a referee to determine the fair market value of the house and sell it to the family. In this respect the referee will be instructed to determine the fair market [3ASR2d4] value of the house and to deduct from that current fair market value (or give the family credit against that fair market value) the rental value of the 'land from the date of construction of the house until the date of appraisal. Defendants have had the use of this property during this period and must pay a fair rental to the family for the use of the land. Thus, if the house has a fair market value of $30,000 and the land has a rental value of $100 per month for the 15 years of its existence, $18,000 is to be deducted from the fair market value for rent, leaving a price of $12,000 which must be paid to the defendants by the family. of course, defendants are entitled to credit for any rent actually paid. Any lien the bank has against the house, together with the referees fees, must be paid prior to 1icny distribution to defendants.

Talalelei Tulafono will be appointed referee to carry out the judgment of the court, without bond, and the court will determine the reasonable value of his service. (5)

**********

1. By the Law of Convenience, each case stands on its own feet as the court simply arrives at an equitable disposition of the case. Actually, the Law of Convenience isn't all bad. Unhappily, fa'a Samoa and stare decisis are often irreconcilable. Establishing a binding precedent based on the shifting sands of custom and tradition handed down through the centuries by word of mouth is a chancy undertaking. Thus, in all candor, prior decisions of the high court are of precious little value as precedent in land and title cases--a line which the ever-eloquent Justice Murphy will undoubtedly label as Gardner's death knell to the doctrine of stare decisis in American Samoa.

2. One might ask, "Just where does the concept of individually-owned land fit into the picture." It doesn't. (See Justice Murphy's discussion of individually-owned land in Leuma v.Willis (1980) 1 A.S.R.2d 48.)

3. Somehow, Judges and lawyers are not comfortable unless they can affix a citation of authority to every concept expressed, no matter how trite or banal that concept may be. This practice becomes a kind of security blanket and inhibits independent thought. To paraphrase Emerson, a slavish reliance on precedent is the hobgoblin of little minds.

4. If authority is needed for the Law of Convenience, this is it.

5. Considering the amount of time the referee will necessarily expend in carrying out this judgment and the cost of this time, it behooves the parties to settle this matter under option (2).

Lualemaga; In re Matai Title


IN THE MATTER OF THE REGISTRATION 
OF THE MATAI TITLE "LUALEMAGA"

High Court of American Samoa 
Appellate Division

AP No. 10-84

April 8, 1985

__________

A.S.C.A. section 1.0409, requiring the court to write findings of fact in matai title cases, does not require negative findings.

Before MURPHY, Associate Justice, Presiding, KINGc and HEEN,** Acting Associate Justices, and TAIMANU, Associate Judge.

Counsel: For appellant, Albert Mailo 
For appellee, Aviata Fa'alevao

MURPHY, J.

The court made findings and conceded that the title Lualemaga should be awarded to one of three claimants. A.S.C.A. section 1.0409 provides, inter alia, for determination of disputed claims by the high court. The statute provides that the court shall be guided by consideration of four factors. The statute, as amended in 1982, provides that the court shall issue a written decision that must contain findings and conclusions on each of the four issues.

This was done by the trial court. One of the findings (and conclusion, although they were not so designated) was that appellant "has not established to the satisfaction of the court that he has any blood relation to the title."

Appellant complains about the result on several grounds. First, he contends the finding was not supported by sufficient evidence. (He concedes that the testimony of the other claimants supports the court's findings.)

Second, he contends the court erred in dismissing appellant's claim on the above grounds, and third, he contends the court erred by failing to consider his other qualifications.

As to the evidentiary complaint, there is sufficient testimony in the record to support the court's finding, not only from the testimony of the other candidates (The other unsuccessful claimant did not join in this appeal.) but from the appellant's own testimony.

However, that finding is mere surplusage and need not have been made. The findings and conclusions to be made on the issues relate to the successful claimant. Negative findings are never required. Inter-Island Resorts, Ltd. v. Akahane (Hawaii 1960) 352 P.2d 856, 859. The trial court need make [2ASR2d50] only brief, definite, pertinent findings and conclusions upon contested matters. There is no necessity for over-elaboration of detail or particularization of facts. United States v. Forness (2d Cir. 1942) 125 F.2d 928, cert. denied 316 U.S. 694; Findings of Fact, 1 F.R.D. 25.

The court did not dismiss appellant's claim. At the conclusion of the evidentiary portion of the trial the presiding justice stated: "The court has now heard from the three candidates who have been examined and cross examined. The matter remaining would be the arguments of the counsel to the court on the merits of their respective candidates and the demerits of the others." At no time up to final deliberation by the court was the appellant precluded from putting forth his claim. The court simply did not embrace his theory as to his hereditary connection with the title. The court made findings as to the prevailing claimant's claim to the title. The mere fact that the court compared the qualifications of the prevailing candidate with Fagasoaia Leasiolagi and not with appellant does not render the decision defective. The record discloses that appellant was given every opportunity to assert his claim. The judges considered the matter, employed the statutory guidelines and awarded the title to the claimant they found most qualified.

Appellant may be concerned that the dicta he complains of will affect future claims to the title asserted by him or his descendants. Not so. That finding, being surplusage, is ordered stricken. The decision of the trial court, as modified, is affirmed.

**********

*Honorable Samuel P. King, United States District Judge, District of Hawaii, sitting by designation of the Secretary of Interior.
**Honorable Walter M. Heen, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting by designation of the Secretary of Interior.

Leomiti v. Sasa`e,


PATI LEOMITI and MOLITAI LEOMITI., Appellants

v.

PAGOFIE SASA'E., Appellee

High Court of American Samoa
Appellate Division

AP No. 42-84

March 11, 1986

__________

An appeal that raises no legal issues constitutes an abuse of process. A lawyer has a duty not to bring a frivolous proceeding.

Before MURPHY, Associate Justice, Presiding, KING,* Acting Associate Justice, HEEN,**Acting Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For the Appellants, Albert Mailo
For the Appellees, Moega Lutu

Per Curiam:

On October 30, 1984 the trial court, Chief Justice Gardner presiding with Associate Judges Tauanu'u and Olo, entered a decision in this land case. The court found Pagofie and Haleck to be credible witnesses and Pati and Molitai Leomiti lacking in credibility and ruled accordingly.

This appeal is nothing more than a quarrel with the trial court's factual findings which are amply supported by the trial record. The appellant presents no legal issues and this court can find none. This appeal is an abuse of process. Litigants, even if unhappy with the outcome of litigation, should be told by their counsel if there are no appealable issues. An advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but also a duty not to abuse legal procedure. A lawyer should not bring a proceeding unless there is a basis for doing so that is not frivolous. Model Rules of Professional Conduct (ABA 1983) Rule 3.1 (Meritorious Claims and Contentions).

The decision of the trial court is affirmed.

**********

*Honorable Samuel P. King, United States District Judge, District of Hawaii, sitting pro tem by order of Chief Justice Gardner.

**Honorable Walter M. Heen, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting pro tem by order of Chief Justice Gardner.

Le`iato; In re Matai Title


VAILAAU N. SILIGA, Claimant

v.

FA'AUAA VA'ALEAMA, et. al. Counter Claimants

[In Re Matai Title "LE'IATO"]

High Court of American Samoa 
Land & Titles Division

MT No. 010-85

March 5, 1986

__________

Where a candidate for a matai title might not have been born on American soil but was born of inhabitants of American Samoa and has lived in American Samoa for at least ten years prior to registering for the title, he comes within the exception of A.S.C.A. section 1.0403(b)(2) to the requirement that candidates be born on American soil.

Before GARDNER, Chief Justice, Presiding, TAUANU'U, Chief Associate Judge, OLO, Associate Judge, VAIVAO, Associate Judge, and APE, Associate Judge.

Counsel: Pro se, Soli S. Aumoeualogo 
For Lea'oa V. Manuma, Aitofele Sagapolutele 
For Vailaau N. Siliga, Puleleiite Tufele 
For Igafo Faigata, Fa'ivae Galea'i 
For Malepeai Setu, Lutu Tenari 
For Va'a Le'iato, Tuana'itau Tuia 
For Eteuati Tupua Le'iato, Tauese Sunia 
For Va'aleama Malau'ulu, Meauta Mageo 
For Te'o Tu'itu'i, utu Siagege

Pursuant to section 1.0409 A.S.C.A., the court makes the following findings of fact regarding the candidates for the above title.

1. The best hereditary right.

In the Western World of written history genealogy is easy. In any history of Europe one can find the genealogy of the great families--Hapsburgs, Romanoffs, Bourbons--with dates of births, marriages and deaths set forth in exact detail. Such is not the case in which history is oral, handed down through the years by word of mouth. This gives rise to some baffling results. For example, an inspection of the questionnaires on file reflects lists of holders of the title varying from 6 to 12, with 10 or 11 being the usual choice. So too, the clans may vary--from one to [2ASR2d95] four. As to generations of claimant's families from the first title holder: to the claimant, this varies from six to twelve. Obviously, they can't all be right.

The court has no hesitation in finding that each of the candidates has a direct blood line to Le'iato Togiola, the first holder of the title. However, the court cannot find that any candidate prevails over the others in this regard.

This is an ancient title--the consensus being that 10 or l2 people have held the title. We do not know what period of time this covers but it must be quite a period. For example, we do know that the last two title holders held the title for approximately 60 years. Under these circumstances a claim of 10 or l2 generations (1/1024 or 1/4096) seems realistic and since several candidates make claims in this general category, no one prevails. Claims of lesser generations simply are not accepted by the court.

2. The wish of a majority or plurality of the clans.

As is usual in a title of this antiquity, there is disagreement even as to the number or names of the clans. The number varies from one to four and a check of the questionnaires lists seventeen names for these clans. Thus, each candidate has some clan support but no candidate can be said to have the support of a majority or plurality of the clans. 3. The forcefulness, character and personality of the candidate and his knowledge of Samoan customs. Here, again, no one prevails. Each candidate is a man of honor and of integrity. Each is an honest, God-fearing and responsible member of society. In court each displayed an acceptable knowledge of Samoan customs and traditions and of the customs, traditions and history of this family. No one candidate prevailed over the others. 4. The value of the holder of the title to the family, village and country.

Here candidate Tupua Le'iato prevails.

This candidate is one of the most respected citizens of American Samoa. His 29 years as a Medical Doctor at L.B.J., his four years as a member of the House of Representatives including two years as Speaker and his many community activities make him one of the outstanding inhabitants of the territory. Insofar as the village and the family are concerned he has served both unselfishly. With his proven qualities of leadership, his value to the village and family are obvious. He can restore peace and harmony to the family.

Therefore, based on the above findings of fact, the court [2ASR2d96] concludes as a matter of law that since candidate Tupua Le'iato prevails over the other candidates on issue (4) he shall be selected to bear the title Le'iato and the Territorial Registrar is order to certify his name as holder of that title.

Two matters merit further discussion.

A Western Samoan birth certificate is in evidence which states that two persons bearing the same names as this candidate's parents gave birth to a boy (bearing another name) on the date of candidate's birth. Candidate Tupua Le'iato swears under oath that he was born in American Samoa and that his parents have always so advised him.

The fact of birth is always based on hearsay except as to those actually present at the birth--the mother and anyone else physically present. Thus, we are faced with two types of hearsay, what candidate Tupua Le'iato 's parents told him and what the birth certificate reflects. Therefore, we resort to reasonable inference.

Clearly, this candidate's parents were inhabitants of American Samoa. His father was born here. His mother was born in Western Samoa. However, both were inhabitants of American Samoa. If, indeed, the mother did go to Western Samoa for the birth of her child it was but a temporary trip and since this candidate has clearly lived here for more than ten years prior to registering for this title, he comes within the provisions of section 1.0403 (b)(2) A..S.C.A.

The second matter on which we wish to comment is the matter of candidates filing for registration while the family is still debating the subject.

We are disturbed by the ever-growing practice of candidates filing for a title before the family has had a real opportunity to select a matai in accordance with traditional custom. Under Fa 'a Samoa, a matai is selected by a consensus of the aiga. All too often, a candidate will file while the family is still trying to reach a consensus. This case is a good example. The family was still deliberating when one candidate filed. All other potential candidates were then forced to file to protect their own interests. The case then proceeded to court without giving the family a real opportunity to make its own selection.

Current law allows this type of abuse of traditional custom in the selection of rnatais. We suggest that the Fono study this subject and enact appropriate legislation to curb this practice by which the court finds itself thrust into the selection process before the family has had a complete opportunity to make the selection in accordance with Fa'a Samoa. Too many matai selections are made by the court instead of by the family.

**********

Lavata`i v. American Samoa Gov’t,


SA'OLOTOGA LAVATA'I, Appellant,

v.

AMERICAN SAMOA GOVERNMENT, Appellee.

High Court of American Samoa
Appellate Division

AP No. 39-81

May 22, 1984

__________

Jury instructions may be written in simple, conversational language.

Before GARDNER, Chief Justice, Presiding, KING,* Acting Associate Justice, HEEN,** Acting Associate Justice, TAUANU'U, Chief Associate Judge and OLO, Associate Judge.

Counsel: For the appellant, Martin R. Yerick, Assistant Public Defender
For the appellee, John Parton, Assistant Attorney General

Appellant was convicted by a jury of second degree murder.

Appellant argued with the victim; the argument escalated into a fight with knives and a club. Appellant killed the victim by hitting him over the head with a club.

Appellant contends there was instructional error.

Some trial judges thoroughly confuse even the most astute jurors by reading involved and convoluted instructions covering the most arcane of legal theories. On the other hand some judges attempt to aid the jury by reducing instructions to simple, conversational, easily understood concepts which will aid them in their deliberations. This trial judge fits the latter category.

Voluminous instructions were submitted, some from a simply dreadful set of instructions found in a book entitled "Jury Instructions, High Court of American Samoa" printed in 1978--the year before most of the present penal code was adopted. Its use is discouraged.

This book of instructions is full of redundancies, irrelevancies and downright inaccuracies. For example, instruction 4.04 says that specific intent means that the person does an act which the law forbids, "intending with bad purpose either to disobey or disregard the law." Nonsense. For criminal intent a person intentionally does that which the-law declares to be a crime and for specific intent the person merely has the specific intent to commit that certain crime. [2ASR2d9]

The most common example is burglary in which one enters a structure with the intent to commit a crime. The specific intent is to commit that crime. Thus, a proper instruction simply is that the crime of burglary requires entry with the specific intent to commit a particular crime. Nothing more is needed. Here the specific intent is to cause the death of another person. This the court said. In each case the appropriate instruction is labeled "given" but was not read verbatim. Instead the gist was given in simple, understandable terms. Judgment affirmed.

**********

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

**Honorable Walter M. Heen, Associate Justice, Intermediate Court Appeals, State of Hawaii, sitting by designation of the Secretary Interior.

In re Tuileisulefiatagata Hall,


In re TUILEISULEFIATAGATA HALL, A Minor Child,
and concerning SOPI SOPI Jr.

High Court of American Samoa
Trial Division

JUV No. 92-85
AD No. 80-85

January 3, 1986

__________

A natural parent's rights to his child can only be terminated against his will if there is a showing that the parent has abandoned or abused the child.

A child cannot be adopted unless the rights of the natural parents to the child have been terminated.

Before MURPHY, Acting Chief Justice, Presiding AFUOLA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Kupa, Asaua Fuimaono
For Sopi Sopi Jr., Isalei Iuli
For interest of child, Amoeualogo Soli, Public Defender

This is a case which imposes an almost intolerable burden upon any judge who has normal sympathies and emotions. It is an irreconcilable dispute between good people over the custody of a little girl who is now nearly one year old. Whatever decision we reach must result in undeserved heartbreak for someone.

FACTS

Millie and Sopi were living as husband and wife with Sopi's family. Millie became pregnant. In August of 1984 Sopi left the Territory to obtain employment in Hawaii. Millie remained in American Samoa with Sopi's family. On February 20, 1985 the little girl, Tuileisulefiatagata, was born. Millie did not want the responsibility of motherhood. She told Sopi's mother she was going to Western Samoa to visit her mother. Instead she turned the baby over to her cousin Nancy Kupa, relinquished parental rights, and consented that Nancy and Samasoni Kupa could adopt the child. Sam and Nancy employed attorney Asaua Fuimaono to represent them in the adoption proceedings. On May 23, 1985 Mr. Fuimaono obtained a decree of relinquishment, apparently without notice to Sopi. No petition of adoption was filed. In the meantime, Sopi found out what was going on and came to American Samoa, obtained counsel and petitioned for custody.

Belatedly, a petition for adoption was filed by the Kupa's on October 17, 1985. Both Sopi the Kupas are fit and proper parents. Naturally the Kupas have become attached to and deeply love this child.

DISCUSSION OF THE LAW

Before the Kupas can adopt the child the rights of the natural parents be terminated. A.S.C.A. sec. 45.0412.

The natural mother relinquished her rights (A.S.C.A. sec. 45.0402) but the rights of the natural father were never dealt with. Clearly, Sopi never consented to relinquishment. Therefore, his parental rights can only be terminated under A.S.C.A. section 45.0401, which refers us to A.S.C.A. section 45.0115 and A.S.C.A. section 45.0103, which in turn tell us that Sopi's rights can be terminated if the child is "neglected or dependent." In other words Sopi must have abandoned or abused the child in order for the court to terminate his parental rights. The facts do not support such a conclusion. He left the Territory for a rational reason and thought that Millie was properly cared for by his mother. His conduct throughout this case demonstrates his determination not to abandon the child.

CONCLUSION

Sopi's parental rights are not terminated and as the natural father he is entitled to custody of his child.

It is so ordered, adjudged and decreed.

**********

In re Matai Title “Sotoa”,


IN THE MATTER OF THE REGISTRATION
OF THE MATAI TITLE "SOTOA"

High Court of American Samoa
Land and Titles Division

MT No. 5-82

July 27, 1984

__________

The "hereditary right" in a matai case is to be traced back to the original title holder. A "clan" is created by each of the offspring of the original title holder who marries and has children.

Before GARDNER, Chief Justice, Presiding, TAUANU'U, Chief Associate Judge, MAMEA, ITUMALO, and APE, Associate Judges.

Counsel: For Leifitele Sinapati Sotoa, Talalelei Tulafono

For Muasau So'oso'oali'i Savali, Leulumoega S. Lutu

In this matter we are concerned with the claims of Leifitele Sinapati Sotoa (hereinafter "Sinapati") and Muasau So'oso'oali'i Savali (hereinafter "Muasau") to the matai title "Sotoa."

I

A.S.C.A. section 1.0409(c) provides,

In the trial of title cases, the High Court shall be guided by
the following considerations, in the priority listed: (1) The
best hereditary right, as to which the male and female
descendants are equal in families where this has been
customary; otherwise, the male descendant prevails over
the female.

In this case, by tracing back to a common ancestor (the daughter of a holder of the title) Muasau has 1/32 hereditary right and Sinapati has 1/64. However, Sinapati, son of the last title holder, claims 50% hereditary right based on this fact. We do not agree. A conflict of opinion seems to have arisen as to the meaning of the phrase "hereditary right." It is the opinion of this court, the members of which are well familiar with Samoan customs and traditions, that "hereditary right" is to be traced back to the blood line of the original title holder, not to any subsequent title holder. Every new title holder does not start a new line of heredity. One must always return to the blood line of the original title holder for the purpose of determining "hereditary right." Thus, on this issue, Muasau prevails.

II

The next consideration established by section 1.0409(c) is "the wish of the majority or plurality of those clans of the family as customary in that family."

Just what constitutes a clan has baffled the courts of this territory for some time. As the court said in Talalele (1964) 4 A.S.R. 458, 461-62,

The Legislature of American Samoa, either in its wisdom or
as a result of an oversight, failed to define the word "clan."
There are different theories as to what a clan means. Some
argue that the number of clans in the family is determined by
[2ASR2d16] the number of offspring of the original holder
of the title, and that each of the children of the original holder
who gets married and has children constitutes a clan, no matter
how long the title has been in existence or how many families
there are. Another theory is that there are as many clans in the
Family as there have been holders of the title, each title holder
giving origin to another clan. Still another theory is that the
number of clans depends on the number of families of the
different title holders with the restriction that when two or more
brothers or sisters hold the title consecutively, it should only
count as one clan.

Justice Morrow, in Filipo Maiava (1962) 4 A.S.R. 313, stated that the first theory was more in accordance with Samoan custom than the others and points out that one family in Manu'a claimed that it had 47 holders of the title and that any other holding would be chaotic.

We agree with Justice Morrow. It is our opinion that, based on Samoan custom and tradition, the number of clans is determined by the number of offspring of the original title holder and that each of the children of the original title holder who gets married and has children constitutes a clan.

However, it has been our experience that attempting to define and identify a clan in a particular family is a most troublesome and unrewarding task. No one ever seems to agree on the number of clans in a family no matter what standard is used. This is understandable when one deals with the oral history or genealogy of a family that may go back hundreds of years. It appears to us that the Fono would render a distinct service to the people of American Samoa by removing this requirement from the law.

In this case Sinapati claimed there were four clans, Muasau claimed there was only one, and both claimed support. We need not decide who was correct on the actual number. We find that neither has the full support of any clan and thus that neither prevails on this consideration. This, historically, seems to be the usual result in these cases. All claimants seem to claim support of certain clans but the proof is almost invariably inconclusive.

III

The next issue to be decided is "the forcefulness, character and personality of the persons under consideration for the title, and their knowledge of Samoan customs." A.S.C.A. sec. 1.0409(c). While admitting that this standard does not readily lend jtself to objective criteria, the court finds that claimant Muasau prevails. His long and distinguished public service career reflects favorably on his forcefulness, character and personality. His testimony at this trial showed his knowledge of Samoan customs.

IV

The last issue presented is "the value of the holder of the title to the family, village and country." A.S.C.A. sec. 1.0409(c). Here, claimant Muasau clearly prevails. His history as a member of the legislature from Manu'a (the site of this title) reflects great potential value to the family and the village. His value to the country (territory) has been established. His many other activities on boards, commissions and conferences indicate a sincere desire to serve his fellow man. Particularly noteworthy are his contributions to the betterment of Manu'a. The court finds that Muasau So'oso'oali'i Savali qualifies for the title Sotoa and the Territorial Registrar is directed to so register the title.

**********

In re Matai Title “Lualemaga”,


IN THE MATTER OF THE REGISTRATION
OF THE MATAI TITLE "LUALEMAGA"

High Court of American Samoa
Appellate Division

AP No. 10-84

April 8, 1985

__________

A.S.C.A. section 1.0409, requiring the court to write findings of fact in matai title cases, does not require negative findings.

Before MURPHY, Associate Justice, Presiding, KINGc and HEEN,** Acting Associate Justices, and TAIMANU, Associate Judge.

Counsel: For appellant, Albert Mailo
For appellee, Aviata Fa'alevao

MURPHY, J.

The court made findings and conceded that the title Lualemaga should be awarded to one of three claimants. A.S.C.A. section 1.0409 provides, inter alia, for determination of disputed claims by the high court. The statute provides that the court shall be guided by consideration of four factors. The statute, as amended in 1982, provides that the court shall issue a written decision that must contain findings and conclusions on each of the four issues.

This was done by the trial court. One of the findings (and conclusion, although they were not so designated) was that appellant "has not established to the satisfaction of the court that he has any blood relation to the title."

Appellant complains about the result on several grounds. First, he contends the finding was not supported by sufficient evidence. (He concedes that the testimony of the other claimants supports the court's findings.)

Second, he contends the court erred in dismissing appellant's claim on the above grounds, and third, he contends the court erred by failing to consider his other qualifications.

As to the evidentiary complaint, there is sufficient testimony in the record to support the court's finding, not only from the testimony of the other candidates (The other unsuccessful claimant did not join in this appeal.) but from the appellant's own testimony.

However, that finding is mere surplusage and need not have been made. The findings and conclusions to be made on the issues relate to the successful claimant. Negative findings are never required. Inter-Island Resorts, Ltd. v. Akahane (Hawaii 1960) 352 P.2d 856, 859. The trial court need make [2ASR2d50] only brief, definite, pertinent findings and conclusions upon contested matters. There is no necessity for over-elaboration of detail or particularization of facts. United States v. Forness (2d Cir. 1942) 125 F.2d 928, cert. denied 316 U.S. 694; Findings of Fact, 1 F.R.D. 25.

The court did not dismiss appellant's claim. At the conclusion of the evidentiary portion of the trial the presiding justice stated: "The court has now heard from the three candidates who have been examined and cross examined. The matter remaining would be the arguments of the counsel to the court on the merits of their respective candidates and the demerits of the others." At no time up to final deliberation by the court was the appellant precluded from putting forth his claim. The court simply did not embrace his theory as to his hereditary connection with the title. The court made findings as to the prevailing claimant's claim to the title. The mere fact that the court compared the qualifications of the prevailing candidate with Fagasoaia Leasiolagi and not with appellant does not render the decision defective. The record discloses that appellant was given every opportunity to assert his claim. The judges considered the matter, employed the statutory guidelines and awarded the title to the claimant they found most qualified.

Appellant may be concerned that the dicta he complains of will affect future claims to the title asserted by him or his descendants. Not so. That finding, being surplusage, is ordered stricken. The decision of the trial court, as modified, is affirmed.

**********

*Honorable Samuel P. King, United States District Judge, District of Hawaii, sitting by designation of the Secretary of Interior.
**Honorable Walter M. Heen, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting by designation of the Secretary of Interior.

In re Matai Title “Le'iato”,


VAILAAU N. SILIGA, Claimant

v.

FA'AUAA VA'ALEAMA, et. al. Counter Claimants

[In Re Matai Title "LE'IATO"]

High Court of American Samoa 
Land & Titles Division

MT No. 010-85

March 5, 1986

__________

Where a candidate for a matai title might not have been born on American soil but was born of inhabitants of American Samoa and has lived in American Samoa for at least ten years prior to registering for the title, he comes within the exception of A.S.C.A. section 1.0403(b)(2) to the requirement that candidates be born on American soil.

Before GARDNER, Chief Justice, Presiding, TAUANU'U, Chief Associate Judge, OLO, Associate Judge, VAIVAO, Associate Judge, and APE, Associate Judge.

Counsel: Pro se, Soli S. Aumoeualogo 
For Lea'oa V. Manuma, Aitofele Sagapolutele 
For Vailaau N. Siliga, Puleleiite Tufele 
For Igafo Faigata, Fa'ivae Galea'i 
For Malepeai Setu, Lutu Tenari 
For Va'a Le'iato, Tuana'itau Tuia 
For Eteuati Tupua Le'iato, Tauese Sunia 
For Va'aleama Malau'ulu, Meauta Mageo 
For Te'o Tu'itu'i, utu Siagege

Pursuant to section 1.0409 A.S.C.A., the court makes the following findings of fact regarding the candidates for the above title.

1. The best hereditary right.

In the Western World of written history genealogy is easy. In any history of Europe one can find the genealogy of the great families--Hapsburgs, Romanoffs, Bourbons--with dates of births, marriages and deaths set forth in exact detail. Such is not the case in which history is oral, handed down through the years by word of mouth. This gives rise to some baffling results. For example, an inspection of the questionnaires on file reflects lists of holders of the title varying from 6 to 12, with 10 or 11 being the usual choice. So too, the clans may vary--from one to [2ASR2d95] four. As to generations of claimant's families from the first title holder: to the claimant, this varies from six to twelve. Obviously, they can't all be right.

The court has no hesitation in finding that each of the candidates has a direct blood line to Le'iato Togiola, the first holder of the title. However, the court cannot find that any candidate prevails over the others in this regard.

This is an ancient title--the consensus being that 10 or l2 people have held the title. We do not know what period of time this covers but it must be quite a period. For example, we do know that the last two title holders held the title for approximately 60 years. Under these circumstances a claim of 10 or l2 generations (1/1024 or 1/4096) seems realistic and since several candidates make claims in this general category, no one prevails. Claims of lesser generations simply are not accepted by the court.

2. The wish of a majority or plurality of the clans.

As is usual in a title of this antiquity, there is disagreement even as to the number or names of the clans. The number varies from one to four and a check of the questionnaires lists seventeen names for these clans. Thus, each candidate has some clan support but no candidate can be said to have the support of a majority or plurality of the clans. 3. The forcefulness, character and personality of the candidate and his knowledge of Samoan customs. Here, again, no one prevails. Each candidate is a man of honor and of integrity. Each is an honest, God-fearing and responsible member of society. In court each displayed an acceptable knowledge of Samoan customs and traditions and of the customs, traditions and history of this family. No one candidate prevailed over the others. 4. The value of the holder of the title to the family, village and country.

Here candidate Tupua Le'iato prevails.

This candidate is one of the most respected citizens of American Samoa. His 29 years as a Medical Doctor at L.B.J., his four years as a member of the House of Representatives including two years as Speaker and his many community activities make him one of the outstanding inhabitants of the territory. Insofar as the village and the family are concerned he has served both unselfishly. With his proven qualities of leadership, his value to the village and family are obvious. He can restore peace and harmony to the family.

Therefore, based on the above findings of fact, the court [2ASR2d96] concludes as a matter of law that since candidate Tupua Le'iato prevails over the other candidates on issue (4) he shall be selected to bear the title Le'iato and the Territorial Registrar is order to certify his name as holder of that title.

Two matters merit further discussion.

A Western Samoan birth certificate is in evidence which states that two persons bearing the same names as this candidate's parents gave birth to a boy (bearing another name) on the date of candidate's birth. Candidate Tupua Le'iato swears under oath that he was born in American Samoa and that his parents have always so advised him.

The fact of birth is always based on hearsay except as to those actually present at the birth--the mother and anyone else physically present. Thus, we are faced with two types of hearsay, what candidate Tupua Le'iato 's parents told him and what the birth certificate reflects. Therefore, we resort to reasonable inference.

Clearly, this candidate's parents were inhabitants of American Samoa. His father was born here. His mother was born in Western Samoa. However, both were inhabitants of American Samoa. If, indeed, the mother did go to Western Samoa for the birth of her child it was but a temporary trip and since this candidate has clearly lived here for more than ten years prior to registering for this title, he comes within the provisions of section 1.0403 (b)(2) A..S.C.A.

The second matter on which we wish to comment is the matter of candidates filing for registration while the family is still debating the subject.

We are disturbed by the ever-growing practice of candidates filing for a title before the family has had a real opportunity to select a matai in accordance with traditional custom. Under Fa 'a Samoa, a matai is selected by a consensus of the aiga. All too often, a candidate will file while the family is still trying to reach a consensus. This case is a good example. The family was still deliberating when one candidate filed. All other potential candidates were then forced to file to protect their own interests. The case then proceeded to court without giving the family a real opportunity to make its own selection.

Current law allows this type of abuse of traditional custom in the selection of rnatais. We suggest that the Fono study this subject and enact appropriate legislation to curb this practice by which the court finds itself thrust into the selection process before the family has had a complete opportunity to make the selection in accordance with Fa'a Samoa. Too many matai selections are made by the court instead of by the family.

**********

In re Matai Title “Aoelua”,


SAUMALEATO VALOVALO AOELUA, appellant

v.

PULOUOLEOLA TAGOA'I, Appellee

[In Re Matai Title "AOELUA"]

High Court of American Samoa 
Appellate Division

AP No. 020-85

March 20, 1986

__________

The standard of appellate review of judicial findings is the "clearly erroneous" standard set forth in United States v United States Gypsum Co. 333 U.S. 364 (1948)

Because decisions in matai cases are based on customs and traditions there are no issues of law for the Appellate division to review.

Before MURPHY, Associate Justice, Presiding, KING,* Acting Associate Justice, and HEEN,**Acting Associate Justice.

Counsel: For the Appellant, Aitofele Sagapolutele 
For the Appellee, Tuana' itau Tuia

PER CURIAM :

This is an appeal from a decision in a matai case rendered by four Samoan Associate Judges, Chief Justice Gardner presiding. The standard of appellate review of judicial findings of fact is the "clearly erroneous" standard set forth in United States v. United States Gypsum Co., 333 U. S. 364 (1948).

Appellant takes umbrage with the Court's finding that Leuea is the only clan of the Aoelua family. It doesn't matter whether there is or is not only one clan in this family since the Court found botr1 candidates had equal family support. The title was awarded on the finding, purely subjective, that appellee was of greater value to the family and village. There was ample testimony to support that finding and it was not clearly erroneous.

Accordingly, the decision of the trial court is affirmed.

MURPHY, A.J., CONCURRING.

I think perhaps the time has come to examine the wisdom of permitting appeals in matai cases. To state the obvious, judicial appellate review is intended to 1. correct errors of law committed by the trial court, and/or 2. correct clearly [2ASR2d105] erroneous findings of facts or abuse of discretion by the trial court. There really are no issues of law in matai cases since decisions are supposedly based upon customs and traditions. See Foreword, I. Goldman, Ancient Polynesian Society(Chicago, University of Chicago Press, 1970).

The factual questions presented to the trial court generally are: Who has the best hereditary right? Who has the support of the majority of the family? Who is best able to serve the family as the matai? See Laughlin, United States Government Policy and Social Stratification, Vol. 53 Oceania.

These are subjective questions of fact which are determined by a panel of four Samoan Associate Judges. A.S.C. sec. 3.0240. This is a process that was begun in 1906 by a naval regulation promulgated by Commander C.B.T. Moore. (The wisdom of determining matai titles in the High Court in the first place is not addressed in this opinion.) The process has been continueq in one form or another by every succeeding legislature.

Appeals came later. It was not until 1979 that the present composition of the Appellate Division was created. A.S.C. sec. 3.0220. The Appellate Court now is composed of three High Court Justices (usually supplemented by United States Judges on temporary appointment) and two Samoan Associate Judges. Naturally the Justices tend to defer to the Samoan Judges, so two Judges review the fact finding process of four of their peers.

The practical result is that matai cases simply are never reversed or modified on appeal and I think rightly so. It would be absurd for two judges to substitute their opinions for that of four of their colleagues.

What good does the appellate process do? Most families have been without a matai for months or years before the case reaches the trial court. To pursue an appeal simply means that the interregnum is continued additional months. Surely it has a disruptive effect on the family. It affords the disgruntled candidates (who at trial usually pledge support for whomever the court may select) an opportunity to play dog in the manger and sew the seeds of future discontent.

It is interesting to note that in Western Samoa no such appeals are allowed. Western Samoa Constitution Part V, Sec. 44. Maybe in this situation, they've got the right idea.

**********

*Honorable Samuel P. King, United States District Judge, District of Hawaii, sitting pro tem by order of Chief Justice Gardner.

**Honorable Walter M. Heen, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting pro tem by order of Chief Justice Gardner.

Immigration Bd.; Falelua v.


SALA FALELUA., Appellant

v.

IMMIGRATION BOARD OF AMERICAN SAMOA., Appellee

High Court of American Samoa 
Appellate Division

AP No. 024-85

March 11, 1986

__________

The statute providing that polygamists who are not permanent residents of American Samoa are excluded from admission into the Territory and are subject to deportation does not authorize the deportation of an alien who was not a polygamist at the time he entered the Territory.

Before GARDNER, Chief Justice, Presiding, KING,* Acting Associate Justice, HEEN,** Acting Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For the Appellants, John Ward 
For the Appellee, Donald Greismann, Assistant Attorney General

Petitioner was served with an O.S.C. why he should not be deported pursuant to:

A.S.C.A. section 41.0615(11) - Polygamists are excludable and subject to deportation.

A.S.C.A. Section 41.0615(10) - Same for person convicted of crime involving moral turpitude.

A.S.C.A. Section 41.0615(22) - Same for anyone violating provision of immigration law or regulation of broad.

A.S.C.A. section 41.0616(1) - Deportable alien is one who was excludable at time of entry.

In essence he was charged with being a polygamist and making false statements to A.S.G. as to his marriage to two women. (This latter charge does not appear to be a ground for deportation and has been abandoned by the attorney general.)

As usual the transcript of proceedings before the board is incomprehensible but the parties seem to agree that the following transpired:

Petitioner is a Western Samoan. When he came to American Samoa is not clear. In 1978 he married Koreti. In 1984 he married Fautino without divorcing Koreti. He stated in an[2ASR2d99] affidavit for his marriage license for Fautino that he was not presently married and "I was never married."

He then went to attorney Ybarra and secured a divorce from Fautino then divorced Koreti, then re-married Fautino. (Petitioner's present counsel charitably observes that the methods selected by petitioner's former counsel to correct petitioner's marital status appear "less than acceptable".)

The Board's position is clear. It says, "The only basis for the immigration board's decision was that Sala had two wives at the same time in violation of A.S.C.A. section 41.0615 (11). Sala is deportable. He was a polygamist from September 19, 1984 until November 29, 1984."

The trouble with the board's position is that it has not read sections 41.0615 and 41.0616 very carefully. Whether or not petitioner committed polygamy when he married a woman without securing a divorce from a prior wife becomes somewhat academic.

Section 41.0615 is entitled "Excludable persons" and says "Except as otherwise provided in this title, the following classes of persons, not permanent residents, are excluded from admission into American Samoa and are subject to deportation." Included in the list are polygamists. (Subsection 11.)

Section 41.0616 entitled "General classes of deportable aliens" and says "Any aliens in American Samoa...shall, upon the order of the attorney general be deported, who: (1) At the time of entry was within one or more of the classes of persons excludable by the law existing at the time of such entry."

Clearly at the time of entry, petitioner was not a polygamist nor a bigamist, whatever category he earned by his subsequent marital entanglements. The board constru9s the language "and are subject to deportation" in section 41.0615 to mean that any time an alien attains a forbidden status under that section he is deportable. If an alien acquires a contagious disease--the flu or a common cold, both highly contagious ---is he deportable? Certainly, under that section he can be excluded, but deported if he becomes ill after arrival?

We doubt it. What about being a stowaway? Grounds for deportation if he stows away after entry?

Section 41.0615 applies to aliens being admitted to the Territory. Section 41.0011 pertains to actions on the part of aliens after entry which are a basis for deportation, i.e. commission of crime, for becoming a narcotic addict, a prostitute or pimp, possession of a weapon, etc.

The distinction between the two sections is dramatized by the handling of those with mental disorders. An insane person is excludable per se. (41.0615 (2).) After entry there is an [2ASR2d100] entirely new procedure for such unfortunates. If one becomes insane and is institutionalized at public expense, he becomes deportable-unless he can show the defect did not exist prior to entry, (41.0616(3).) The handling of crimes in the two sections is informative. Under 41.0615 one is excludable if one admits committing a crime involving moral turpitude. Under 41.0616 one may be deported only if convicted of such a crime and sentenced to an institution.

There is a valid legislative distinction between excludable aliens and aliens who may be deported after entry. The words "and are subject to deportation" do not convert all the excludable conditions which may arise after entry of 41.0615 into deportable classes under 41.0616. All those under 41.0615 may be denied admission but if they get in may be deported if the status existed at the time of entry.

As petitioner says, section 41.0615 is prophylactic, section 41.0616 is remedial.

Under the facts in this case and the applicable law, petitioner may not be deported. He was not a polygamist when he entered American Samoa.

Order of deportation set aside.

**********

*Honorable Samuel P. King, United States District Judge, District of Hawaii, sitting pro tem by order of Chief Justice Gardner.

**Honorable Walter M. Heen, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting pro tem by order of Chief Justice Gardner.

Fetui v. American Samoa Gov’t,


FETU FETUI JR., Plaintiff

v.

AMERICAN SAMOA GOVERNMENT et al. , Defendants

High Court of American Samoa 
Trial Division

CA No. 110-84

March 8, 1985

__________

The exercise of prosecutorial discretion cannot be challenged by one who himself is neither prosecuted nor threatened with prosecution.

Consent, by words and actions, to an intentional tort bars recovery.

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

Counsel: For the Plaintiff, Stephen Ybarra 
For the Defendant, Donald Greismann, Assistant Attorney General

The facts of the case are simple. They could well constitute a chapter of Joseph Wambaugh's Choir Boys.

One night after work plaintiff, a policeman, decided to celebrate his birthday by getting drunk with two fellow off duty officers under the banyan tree in front of the police station. He (they) did. Plaintiff not only got drunk, he got obnoxiously drunk. Defendant Petelo Mikaele, plaintiff's long suffering senior officer, was on duty. He told plaintiff not to bring beer into the station. He did and was evicted. Defendant told plaintiff to go home. He didn't. Finally Defendant went on patrol. Somehow plaintiff got on the police radio and broadcast," Sgt. 1-14 (defendant) I'm waiting for you at the police department. Come back and I'll put you down." Defendant returned to the station. Plaintiff grabbed him by his shirt and said, "Go ahead. Hit me." He repeated this statement two or three times.

By this time defendant was out of patience with the plaintiff. He didn't want to arrest him because it would cost him, the plaintiff, his. job. So, he acceded to the plaintiffs request and hit him. Unfortunately, when plaintiff hit the ground he suffered head injuries for which he sued defendant (otherwise he probably would be thanking the defendant for not arresting him.) [2ASR2d53]

Plaintiff filed a civil rights action for this alleged battery against defendant, the Commissioner of Public Safety and ASG. He also alleges a conspiracy of the authorities in not criminally prosecuting defendant. This contention is frivolous. It is settled doctrine that the exercise of prosecutorial discretion cannot be challenged by one who himself is neither prosecuted nor threatened with prosecution. Linda R.S. v. Richard D., 410 US 615, 619 (1973); Simon v. Eastern Kentucky Welfare Rights Organization, 426 US 26 (1976). There is no equal protection issue. We return to the basic battery.

The issue is, can one consent to an intentional tort? Can someone say, "I dare you to hit me," then sue when he gets hit?

Preliminarily, the court holds that while plaintiff was drunk, he wasn't too drunk to give consent. "The question of whether the plaintiff was in such an advanced state of intoxication that he was incapable of consenting to the alleged assault and battery presents a genuine issue of material fact." Hollerund v. Malamis, 174 N.W.2d 626, 635 (Mich. App. 1970). We hold plaintiff was capable of giving consent.

According to Prosser "[c]onsent ordinarily bars recovery, " not because it is a defense, but because it "goes to negative the existence of any tort in the first place." Prosser & Keeton, Torts 112 (5th ed. 1984). Prosser quotes Lord Dehman. in Christopherson v. Bare (1848) 11 Q.B. 473: "To say that the defendant assaulted the plaintiff by his permission... is a manifest contradiction in terms.") Most of the cases, though, speak in terms of consent as a defense.

The general rule is that a plaintiff who consents has no claim upon the defendant, unless there is public interest involved. Therefore there may be a different analysis if the consent is to a crime.

Prosser finds that the "considerable majority of the courts" (e.g. , Iowa, Kansas, North Carolina, West Virginia, Wyoming), in cases of mutual combat, have used a public policy concept to hold that the plaintiff's consent will not protect the defendant if the tort is a crime. The rationale is that a civil action helps protect the state's interest and "the parties will be deterred from fighting by the fear of liability." Prosser at 122. Prosser points out that these decisions have been widely criticized. The criticisms are that no one should be rewarded for his own part in a wrong, the state can protect its interests through the criminal law, and that the parties are likely to be encouraged by the prospects of winning in court if they are injured. A minority (e.g. Kentucky, Michigan, Nevada, Texas, Washington) accepts the view that the plaintiff may not recover if he consents to a tort that is a crime.

That' s the view of the Restatement, which says "consent is effective to bar recovery in a tort action although the conduct [2ASR2d54] consented to is a crime." Restatement 2d, Torts, sec. 892C (1979). An example in the Restatement comes close to our case: "A and B, after an altercation, agree to a fist fight. A gives B a black eye. A is not liable to B." Restatement 2d, Torts, sec. 60, Illustration 2 (1965). It seems that in most battery cases the courts ignore the issue of the tort being a crime.

Even the courts that allow a bellicose plaintiff to collect damages usually accept consent as a fact in mitigating or disallowing punitive damages.

There are many cases saying that mere words do not excuse a battery. As absolute as their language is they are not persuasive here because they involve abusive words such as personal insults and foul language, not "hit me" type language. An exception is Nsauful v. Milligan. 187 S.E.2d 511 (S.C. 1972). The plaintiff made an insulting remark about the defendant's children. He later apologized to the defendant's wife. A few days later the defendant learned of the incident and went to the plaintiff's house. He told him he wasn't putting up with that kind of statement and put a hand on his shirt. The plaintiff threw his hands up and said, "Hit me." The court held for the plaintiff, saying that neither the comment about the defendant's children nor the words "hit me" constituted justification for the attack since there was no "accompanying offer of physical violence." Words alone cannot justify assault and battery.

In this, as in so many of these cases, the court wound up punishing the party who was in the wrong rather than following any consistent set of rules. The plaintiff may have said "hit me" but it was the defendant who was being obnoxious, the reverse of our case. And Fetui's behavior would qualify as an "accompanying offer of physical violence."

Another "hit me" case, the one most similar to ours, is O'Connor v. Western Freight Association, 202 F. Supp. 56l (S.D.N.Y. 1962). The defendant, an employee of a freight-forwarding company, asked the plaintiff, an employee of a railroad, to check a shipment. The plaintiff disregarded the request and the defendant became angry. Later the defendant invited the plaintiff to fight. The plaintiff refused, but said he would at noon, off the company's premises. The defendant persisted and the plaintiff said "All right, let's fight," putting up his fists. The plaintiff was injured. The court held that under New York law if the plaintiff consents to the fight he is without a remedy for his injuries. Since the plaintiff accepted the defendant's invitation to fight his consent constituted a complete defense.

It appears to us that the better rule is that one may, by his words and actions, consent to an intentional tort. There is something basically unjust in daring someone to hit, then demanding recourse through the courts when hit.[2ASR2d55]

As applied to the facts of this case, plaintiff consented to the battery and may not recover--either from Petelo Mikaele, the Commissioner of Public Safety or ASG.

Judgment for the defendant.

**********

Burns Philip Company, Ltd. v. American Samoa Gov’t,


BURNS PHILP COMPANY, LTD., Plaintiff,

v.

TINA AFO, AIMITI AFO, TEMA AFO, 
MAGAUI FIAME, SIIGAVA'A FALEALII, Defendants.

High Court of American Samoa 
Trial Division

CA No. 93-84

January 7, 1985

__________

There are no dower rights in communal land.

Before MURPHY, Associate Justice, Presiding , TAIMANU and OLO, Associate Judges.

Counsel: For interpleader, Hall & Associates by Gary Hynds 
For defendants Afo and Falealii, Falalelei A. Tulafono 
For defendant Fiame, Watson & Reardon by Steven H. Watson

The interpleading plaintiff having been discharged, the above-entitled matter came on for trial on the cross-claims.

FACTS

The interested parties stipulated to the following facts: the Afo family leased a portion of its communal land to Burns Philp for $300 per month. The lease was entered into by the matai Tema Afo on behalf of the family. In 1983 Tema died. Aimiti Afo is his widow. The family has not yet selected a successor titleholder. [2ASR2d40]

ISSUE

The widow claims she is entitled to one-third of the rental pursuant to her right of dower. A.S.C.A. section 40.0103 provides a right of dower of one-third of a decedant's real or personal property. other members of the Afo family contend succession rights in general and dower rights in particular do not apply to communal property.

CONCLUSION

We hold that the statutes pertaining to estates do not apply to communal land. A.S.C.A. section 40.0206 states that the provisions of the chapter do not apply to communal land. None of the chapters of the estate statutes can logically be applied to communal land. It is true, as able counsel for the widow points out, in the past this court has ordered the proceeds of communal land paid to a widow. See Nouata v. Pasene, LT No. 18-1931. That decision was clearly wrong and this court will not perpetuate that error. The affairs of the family, including collection of rent from communal property are administered by the matai. Hence, the funds in this case must be deposited in trust for the family until a successor matai is named.

ORDER

It is decreed and ordered that all rental funds be deposited in an interest bearing account for the benefit of the Afo family until selection of a titleholder or further order of the court.

**********

Vessel Pacific Princess v. Trial Div. of the High Court,


THE VESSEL PACIFIC PRINCESS,
n/k/a PACIFIC ISLANDER, Petitioner,

v.

TRIAL DIVISION OF THE HIGH COURT
OF AMERICAN SAMOA, Respondent.
GREAT AMERICAN INSURANCE CO.,
Real Party in Interest.

High Court of American Samoa
Appellate Division

AP No. 12-83

September 5, 1984

__________

A petition for an extraordinary writ is a proper remedy for review of venue decisions.

Since the high court is not a federal district court, it may not transfer venue under 28 U.S.C. section 1404.

Before GARDNER, Chief Justice, Presiding, KING*, Acting Associate Justice, HEEN**, Acting Associate Justice, TAUANU'U , Chief Associate Judge and OLO, Associate Judge. [2ASR2d22]

Counsel: For the petitioner, Gary Hynds
For the real party in interest, F. Michael Kruse

KING, J.

BACKGROUND

On December 16, 1981, real party in interest, Great American Insurance Company ("G.A.I.C.), filed a complaint in rem in the trial division of this court against petitioner. The clerk of this court issued a warrant of arrest, and the vessel Pacific Princess was seized by the marshal.

On December 18, 1981, owners of the Pacific Princess and G.A.I.C. entered into a stipulation releasing the vessel from arrest upon the posting of a $75,000 bond by the owners with the Bank of Hawaii in American Samoa. The trial division entered an order directing the posting of the bond and the release of the vessel.

On December 7, 1982, the trial division issued an order based on the parties' cross motions for summary judgment. The trial division found that G.A.I.C.'s complaint was time barred by the statute of limitations. The trial division ordered, however, that the bond posted be retained by the Bank of Hawaii subject to motion by G.A.I.C. for transfer of the bond to the district court in Guam, where a purported action against the vessel was pending. G.A.I.C. made such a motion pursuant to 28 U.S.C. section 1404(a), and on May 17, 1983, the trial division issued an order directing the Bank of Hawaji in American Samoa to transfer the bond to the Bank of Hawaii in Guam.

Petitioner argues that the trial division acted beyond its jurisdiction in ordering the transfer of the bond, and hence, the action, to the district court in Guam under 28 U.S.C. sections 1404(a) and 1406(a). Petitioner requests that this court issue an order directing the trial division to vacate its order of May 17, 1983, and dismiss G.A.I.C.'s complaint as time barred.

G.A.I.C. initially contends that the extraordinary relief requested by petitioner is not available in that the trial division order was a final order and hence appealable, and the time for appeal has lapsed. In addition, G.A.I.C. argues that the trial division had jurisdiction and authority to transfer the bond and action to the district court in Guam.

APPEALABILITY OF TRIAL DIVISION ORDER

An order transferring an action under section 1404(a) is interlocutory in nature and hence not appealable. The extraordinary relief of mandamus does lie to review a clearly erroneous transfer order entered under section 1404(a) .Commercial Lighting Products, Inc. v. United States District (9th Cir. 1976) 537 F.2d 1978, 1079. In Pacific Car & Foundry Co. v. Pence (1968) 403 F.2d 949, the Ninth Circuit agreed with other circuits that orders respecting venue entered under sections 1404(a) and 1406(a) were interlocutory and not appealable until final judgment was rendered. Id. at 951. The Ninth Circuit recognized that the venue provisions dealt with rights too important to be denied review since error cannot be effectively remedied upon appeal from final judgment. It therefore held that review upon mandamus was available for clearly erroneous orders entered under section 1404(a). Id. at 952. The other circuits are in substantial agreement. See Kasey v. Molybdenum Corp. of America (9th Cir. 1969) 408 F.2d 16, 18 n.8.

This court finds that petitioner proceeded correctly in requesting [2ASR2d23] extraordinary relief from the trial division's order transferring this action to the district court in Guam. Even if this court were to hold that the correct procedure was an appeal of the trial division's order, we would treat the petition for writ of prohibition as a timely appeal. The trial division's order transferring the bond was entered on May 17, 1983, and the petition for writ of prohibition was filed on May 18, 1983, obviously within the requisite time limits for appeal.

TRIAL DIVISION'S ORDER OF TRANSFER UNDER 28 U.S.C. SECTION 1404(a)

The venue provision in question, section 1404(a), states:

For the convenience of parties and witnesses, in the interest of
justice, a district court may transfer any civil action to any other
district or division where it might have been brought.

Section 1404(d) includes as a district court the "United States District Court for the District of the Canal Zone." No other territorial court is mentioned.

There can be no argument, and as this court understands the parties' positions, there-is none, that the High Court of American Samoa is not an Article III district court. This court is a territorial court duly constituted under Article IV of the United States Constitution. As this court noted in Vessel Fijian Swift v. Trial Division, High Court of American Samoa, (1975) 4 A.S.R. 983, 986, "Congress has passed no recognized organic act providing for the civil government of American Samoa and has not incorporated this territory into the United States." American Samoa is still legally governed by executive fiat and administered by the Secretary of the Interior. No federal legislation creating a court system for American Samoa has yet been fashioned.

Nor must Congress pass such legislation. The Supreme Court recently stated in Northern Pipeline Construction Co. v. Marathon Pipe Line Co. (1982) 458 U.S. 50, 64, 73 L. Ed. 2d 598, 611, that Congress need not invest territorial courts with the attributes of an Article III court. An Article III court need not be made available for adjudication in American Samoa. See Meaamaile American (D. Hawaii 1982) Civ. No.82-0365.

However, G.A.I.C. and the trial division have postulated that this court is a district court for admiralty purposes only, i.e., in matters of admiralty and maritime law, the court dons "federal robes." The trial division reasoned that since admiralty law was the exclusive province of the federal judiciary, when it sat in admiralty" it must be a federal court. Several decisions involving the Virgin Islands and transfers entered pursuant to section 1404(a) are cited as support for the trial division's argument. See Exporters Refinance Corp. Ltd. v. Marden (S.D. Fla. 1973) 356 F. Supp. 859 and Ferguson v. Kwik-Chek (D.V.I. 1970) 308 F. Supp. 78.

Assuming the cases cited are correct in their holdings, there are distinct differences between the Virgin Islands' judicial system and American Samoa's. The Revised Organic Act of the Virgin Islands, section 22, provides:

The District Court of the Virgin Islands shall have the jurisdiction
of a district court of the United States... regardless of the sum or
value of the matter in controversy.

The courts in Ferguson and Marden, above, found that this organic act evidenced Congress' intent to "integrate the District Court of the Virgin Islands into the federal judicial system, as nearly and completely as possible." Ferguson, 308 F. Supp. at 80. American Samoa has no organic act.[2ASR2d24]

In addition actions decided by the Virgin Islands courts are appealable within the federal judicial system. Appeals from the Virgin Islands are heard by the Third Circuit. Appeals from Guam are heard by the Ninth Circuit. Actions from the Canal Zone are appealable to the Fifth Circuit. Cases heard by this court are not appealable to any Article III court. This is further evidence that Congress did not intend to integrate completely American Samoa into the federal judicial system.

Indeed, when Congress has intended to so integrate American Samoa, it has stated its intent quite clearly. In the Ocean Dumping Act, 33 U.S.C. section 1401(g), and the Marine Mammal Protection Act, 16 U.S.C. section 1362(3), Congress has provided that:

The term "district court of the United States" includes... in the
case of American Samoa. ..the District Court of the United
States for the District of Hawaii.

Congress has been quite specific in not including this court as part of the federal judiciary.

This court agrees with the Marden court that "codification of the forum non conveniens doctrine [in section 1404(a)], being remedial in nature, must be liberally construed." 356 F. Supp. at 860. But this court cannot ascribe an intent to Congress that Congress did not express. Although this may work a hardship on certain litigants in American Samoa, that is a hardship that must be endured until it is rectified by Congress. Petition for writ of prohibition is granted. It is hereby ordered that the order of transfer to Guam entered in the trial division of the high court on May 17, 1983, be vacated, and the G.A.I.C.'s complaint be dismissed as time barred.

GARDNER, C.J., Concurring.

To me the lack of access by the residents of this territory to court a with federal jurisdiction is troublesome. I think this is the only territory of the United States which is not within the jurisdiction of a United States District Court.

At one time, when the territory was young and undeveloped, this was probably unimportant but as th territory becomes more and more a part of the commercial world the lack of access to a federal court denies the residents of the territory important rights and protections. This case is a good example. Another is the recent case of Matter of Interocean Ships (1984) 2 A.S.R.2d 21, in which the high court held it had no jurisdiction over the limitation of vessel owner's liability provision of 46 U.S.C. section 183.

Whether this represents indifference or reluctance on the part of the residents of the territory or of Congress I do not know. However, if either or both are interested, three avenues of relief are available.

First, Congress could extend federal jurisdiction to the high court as it has done in other territories by providing that the high court have the jurisdiction of a United States District Court. This can be done under the so-called territorial exception to the rule that only United States District Courts can exercise the jurisdiction. See Northern Pipeline Construction Co. v. Marathon Pipe Line Co. (1984) 458 U.S. 5, 73 L. Ed. 2d 598; American Insurance Co. v. 356 Bales of Cotton (1828) 26 U.S. (1 Pet.) 511, 7 L. Ed. 242.

This would be the most simple solution.

Second, it could place American Samoa under the jurisdiction of a United States District Court, such as the United States District Court of [2ASR2d25] Hawaii. This would involve geographical problems for the court and the residents.

Third, it could create a United States District Court for the territory. This, of course, would be the height of fiscal irresponsibility-a United States District Court serving only 32,000 people.

Thus, propositions 1 and 2 are the only viable alternatives. However, whether either Congress or the Territory is interested I do not know.

In the meantime a resident of American Samoa can rob a federally insured bank in American Samoa and not worry about the F.B.I. On the other. hand, he can't go into bankruptcy.

**********

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

**Honorable Walter M. Heen, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting by designation of the Secretary of Interior.

Aoelua v. Tagoa'i,


SAUMALEATO VALOVALO AOELUA, appellant

v.

PULOUOLEOLA TAGOA'I, Appellee

[In Re Matai Title "AOELUA"]

High Court of American Samoa 
Appellate Division

AP No. 020-85

March 20, 1986

__________

The standard of appellate review of judicial findings is the "clearly erroneous" standard set forth in United States v United States Gypsum Co. 333 U.S. 364 (1948)

Because decisions in matai cases are based on customs and traditions there are no issues of law for the Appellate division to review.

Before MURPHY, Associate Justice, Presiding, KING,* Acting Associate Justice, and HEEN,**Acting Associate Justice.

Counsel: For the Appellant, Aitofele Sagapolutele 
For the Appellee, Tuana' itau Tuia

PER CURIAM :

This is an appeal from a decision in a matai case rendered by four Samoan Associate Judges, Chief Justice Gardner presiding. The standard of appellate review of judicial findings of fact is the "clearly erroneous" standard set forth in United States v. United States Gypsum Co., 333 U. S. 364 (1948).

Appellant takes umbrage with the Court's finding that Leuea is the only clan of the Aoelua family. It doesn't matter whether there is or is not only one clan in this family since the Court found botr1 candidates had equal family support. The title was awarded on the finding, purely subjective, that appellee was of greater value to the family and village. There was ample testimony to support that finding and it was not clearly erroneous.

Accordingly, the decision of the trial court is affirmed.

MURPHY, A.J., CONCURRING.

I think perhaps the time has come to examine the wisdom of permitting appeals in matai cases. To state the obvious, judicial appellate review is intended to 1. correct errors of law committed by the trial court, and/or 2. correct clearly [2ASR2d105] erroneous findings of facts or abuse of discretion by the trial court. There really are no issues of law in matai cases since decisions are supposedly based upon customs and traditions. See Foreword, I. Goldman, Ancient Polynesian Society(Chicago, University of Chicago Press, 1970).

The factual questions presented to the trial court generally are: Who has the best hereditary right? Who has the support of the majority of the family? Who is best able to serve the family as the matai? See Laughlin, United States Government Policy and Social Stratification, Vol. 53 Oceania.

These are subjective questions of fact which are determined by a panel of four Samoan Associate Judges. A.S.C. sec. 3.0240. This is a process that was begun in 1906 by a naval regulation promulgated by Commander C.B.T. Moore. (The wisdom of determining matai titles in the High Court in the first place is not addressed in this opinion.) The process has been continueq in one form or another by every succeeding legislature.

Appeals came later. It was not until 1979 that the present composition of the Appellate Division was created. A.S.C. sec. 3.0220. The Appellate Court now is composed of three High Court Justices (usually supplemented by United States Judges on temporary appointment) and two Samoan Associate Judges. Naturally the Justices tend to defer to the Samoan Judges, so two Judges review the fact finding process of four of their peers.

The practical result is that matai cases simply are never reversed or modified on appeal and I think rightly so. It would be absurd for two judges to substitute their opinions for that of four of their colleagues.

What good does the appellate process do? Most families have been without a matai for months or years before the case reaches the trial court. To pursue an appeal simply means that the interregnum is continued additional months. Surely it has a disruptive effect on the family. It affords the disgruntled candidates (who at trial usually pledge support for whomever the court may select) an opportunity to play dog in the manger and sew the seeds of future discontent.

It is interesting to note that in Western Samoa no such appeals are allowed. Western Samoa Constitution Part V, Sec. 44. Maybe in this situation, they've got the right idea.

**********

*Honorable Samuel P. King, United States District Judge, District of Hawaii, sitting pro tem by order of Chief Justice Gardner.

**Honorable Walter M. Heen, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting pro tem by order of Chief Justice Gardner.

American Samoa Gov’t v. Von Cramm,


AMERICAN SAMOA GOVERNMENT, Appellee

v.

AUINA TO'OTO'O and JOHN W. VON CRAMM, Appellants

High Court of American Samoa 
Appellate Division

AP 003-85

June 4, 1985

__________

A statute that punishes an act if performed by an employee of the Development Bank of American Samoa but not if performed by an employee of a commercial bank involves neither a fundamental right nor a suspect classification, and does not deny equal protection of the laws.

The rule that a state may classify persons for the purpose of legislation and pass laws applying such classifications operates to permit a legislative scheme classifying the officers and employees of the Development Bank of American Samoa differently from those of commercial banks in American Samoa.

The improper guaranteeing by an officer of the Development Bank of American Samoa of a loan for the officer's personal use is a conversion of the Development Bank's credit and constitutes the offense of willful misapplication.

The encouragement of economic progress in American Samoa is an acceptable, if not mandatory, interest of the American Samoa Government and the American Samoa Government can enact legislation furthering this interest by discouraging fiduciaries employed by the Development Bank of American Samoa from misappropriating "money, funds, credit or securities" belonging to the Bank.

A motion for new trial is addressed to the sound discretion of the trial court and trial court's decision will not be overturned on review except upon manifest abuse.

Before MURPHY, Associate Justice, KING,* Acting Associate Justice, HEEN,** Acting Associate Justice, and OLO, Associate Judge.

Counsel: For the Appellee, John Parton, Assistant Attorney General 
For the Appellant, John Ward

OPINION

Defendant Auina To'oto'o appeals from his conviction of the offenses of Larceny and Fraud (Counts I and II), Embezzlement [2ASR2d62] (Count III), and making a false entry in a "book, report, or record" of the Development Bank of American Samoa (Development Bank) (Count IV). Co-defendant John W. Von Cramm appeals from his conviction together with To'oto'o on Counts I, II and III. We affirm.

The information charged the defendants with (I) having unlawfully extended the Development Bank's guarantee of repayment of Bank of Hawaii's $15,000 loan to Von Cramm: (2) providing Von Cramm with a $20,000 loan from Development Bank: (3) transferring funds from the Development Bank's Lumana'i Building account to payoff the $20,000 loan: and (4) providing the Territorial Auditor. with a false list of guaranteed loans --one which did not include Von Cramm's guaranteed loan from Bank of Hawaii. To'oto'o was found guilty of all four charges, and Von Cramm was found guilty of the first three, but acquitted of the fourth.

Defendants argue on appeal that the trial court erred in denying their motions for new trial, judgment of acquittal and "arrest of judgment." We will discuss first the motion in arrest of judgment.

I.

Defendants argue that the information fails to charge a crime, because the statute on which it is based, A.S.C.A. section 28.0111, applies only to Development Bank personnel and treats them differently from personnel of other banks. They contend that section 28.0111 punishes as a felony an act which, if committed by an employee of another bank, under other statutes, would be only a misdemeanor or cause for discharge. We hold that the statute passes constitutional muster.

The fourteenth amendment to the united States Constitution guarantees that "No State shall make or enforce any law which shall... deny to any person within its jurisdiction the equal protection of the laws." A fourteenth amendment attack on a statute presupposes that persons subject to its provisions are in similar circumstances but receive unequal treatment from others. Here, defendants argue that employees of the Development Bank are similarly situated, yet treated differently from employees of other banks in American Samoa in violation of the fourteenth amendment. The argument is without merit.

In an equal protection analysis, the first inquiry is as to the standard employed in the statutory classification of the statute. Sklar v. Byrne, 727 F.2d 633, 636 (7th Cir. 1984). "If the legislative classification neither impinges on a fundamental personal right nor employs an inherently suspect classification, courts will generally uphold the classification if it is rationally related to a legitimate state interest[.]" Id. See also Plyler v. Doe, supra: Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471 (1977); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976); Dandridge v. Williams, 397 U.S. 471 [2ASR2d63] (1970).

Here, the legislative classification involves neither a fundamental right nor a suspect classification. See, e.g., Massachusetts Board of Retirement v. Murgia, supra, at 312 n.3 and 4. The functions and goals of the Development Bank are quite different from other banks in American Samoa, and "[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they are the same." Plyler v. Doe, 457 U.S. 202, 216 (1982) (quoting Tigner v. Texas, 310 U.S. 141, 147 (1940)). One statutory purpose of the Development Bank is to provide a mechanism to receive funds from the United States government and to invest those funds in or lend them to American Samoan residents for businesses contributing to American Samoa's economic development. Another purpose is to make loans to American Samoan residents for home construction. The proper conduct of the Development Bank's business by its employees for the accomplishment of those purposes is of special concern to the American Samoa Government (A.S.G.). It is well settled that a state may classify persons for the purpose of legislation and pass laws applying such classification. 16A Am. Jur. 2d Constitutional Law section 746 (1979). The general rule is broad enough to encompass a legislative scheme classifying the officers and employees of the Development Bank differently from employees of other commercial banks in American Samoa. We see nothing unreasonable or suspect in classifying separately employees of a specialized institution whose function is of extreme importance to A.S.G. We turn then to consideration of the second facet of equal protection analysis, the state interest.

As stated above, the primary function of the Development Bank is to encourage economic progress in American Samoa. That is an acceptable, if not mandatory, interest of the A.S.G., and the statute clearly is intended to further that legitimate interest. By its plain language, section 28.0111, A.S.C.A., is designed to discourage any fiduciary employed by the Development Bank or his accomplice from misappropriating "moneys, funds, credits or securities" belonging to the Development Bank. The singular purpose of those funds is the development of the Samoan economy. That purpose, in general, is crucial to every government and is a legitimate state interest. There is nothing arbitrary about visiting harsher criminal sanctions upon those whose actions are destructive thereof.

Citing United States v. Michael, 456 F. Supp. 335 (D.N.J. 1978), United States v. Krepps, 605 F.2d 101 (3d Cir. 1979), and United States v. Christo, 614 F.2d 486 (5th cir. 1980), defendants argue there was no illegal misapplication of funds or credit and no showing of intent to injure or defraud the [2ASR2d64] Development Bank. (1) Those cases are not helpful to defendants.

In Michael, the general rule is stated to be that, to constitute the offense of willful misapplication, there must be a conversion to the bank officer's own use, or to the use of someone else, of the money and funds of the bank by the party charged. Id. at 339. That is exactly what happened here. The guarantee to Bank of Hawaii was a conversion of the Development Bank's credit, and the loan to Von Cramm was a conversion of its money, both to Von Cramm's use. Additionally, the transfer of funds from the Lumana'i fund account to payoff part of the Development Bank loan to Von Cramm and transform Von Cramm's obligation to that of repaying a "salary advance" also comes within the general rule.

Also destructive of defendants' argument is the statement of the court in United States v. Krepps, supra, that "[i]ntent to injure or defraud a bank exists if a person acts knowingly and if the natural result of his conduct would be to injure or defraud the bank even though this may not have been his motive [s]uch intent may be inferred from facts and circumstances shown at trial and is basically a fact question for the jury.." Moreover, the court held that "[r]eckless disregard of the interests of the bank is equivalent to intent to injure or defraud.[.]" Id. at 104. The evidence in this case clearly and overwhelmingly supports an inference of intent. to defraud under those principles.

Defendants' argument that the information fails to charge an offense is without merit. The wording of each count sufficiently recites the elemental facts and tracks the language of the statute and fully apprised defendants of the charges against them so as to allow them to prepare to meet those charges. We turn now to defendants' motion for new trial.

II.

It is fundamental law that a motion for new trial is addressed to the sound discretion of the trial court and the exercise of that discretion will not be overturned on review except upon its manifest abuse. We find none here.

Our review of the record fails to support defendants' argument that the trial court misapplied A.S.C.A. section 28.0111. As noted above, the extension 'of the Development Bank's [2ASR2d65] guarantee and the Development Bank's loan to Von Cramm constitute, respectively, a misapplication of its credit and its funds in violation of the statute. Defendants' argument that Von Cramm was not an officer of the Development Bank is irrelevant since the evidence showed that the purpose of the loan was not legitimate under section 28.0105. Also, the transfer of funds from the Lumana'i account to pay Von Cramm's loan from the Development Bank was a clear embezzlement. The argument that the Development Bank was merely paying its own money from one account to another ignores the fact that the Development Bank is still out the $20,000, which was not loaned for a legitimate purpose. Finally, the evidence unquestionably supports the charge that To'oto'o rendered a false report when he furnished an incomplete list of guaranteed loans to the auditor.

III.

As indicated in our discussion in sections I and II of this opinion, we find from our review of the record that the evidence is clearly sufficient to sustain the guilty verdicts on all counts, and defendants' motions for judgment of acquittal were property denied.

Affirmed.

**********

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

**Honorable Walter M. Been, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting by designation of the Secretary of the Interior.

1. Defendants have engaged in a confusing argument here. They did not fully develop the equal protection argument but, instead, launched into a. discussion of the cited cases, arguing their application to the facts at bar. The cases really seem to apply to their motions for new trial. In either event, defendants' reliance on the equal protection argument and the cited cases is of no avail.

American Samoa Gov’t; Banks v.


BARBARA BANKS, Petitioner

v.

AMERICAN SAMOA GOVERNMENT, Respondents

High Court of American Samoa 
Appellate Division

AP No. 030-85

December 5, 1985

__________

The personnel advisory board's decision that one of two conflicting processes for selecting a person for a government position was the correct one is an executive decision not reviewable under the Administrative Procedures Act.

The mere aspiration for a particular position does not create in a person seeking that position a vested interest subject to protection under the Administrative Procedures Act.

The proper procedure to contest a Personnel Advisory Board decision affecting a person's vested interest is to seek review at the trial, not the appellate level, of the High Court.

If the decision of the Personnel Advisory Board resolving a dispute within the executive branch regarding the selection of a person for a government position violates a person's civil, common law or statutory rights that person may proceed against ASG in the Trial Division of the High Court or the Equal Opportunity Employment Commission.

Before MURPHY, Acting Chief Justice, ALA'ILIMA*, Acting Associate Justice, TAUANU'UChief Associate Judge, and VAIVAO, Associate Judge.

Counsel: For the Appellant, William Reardon 
For the Appellee, Donald Greismann, Assistant Attorney General

This matter comes before the Court on a Motion by the Respondents for summary judgment. Present were the Petitioner with her counsel Mr. Reardon, esq. and representing the respondents was Mr. Greisman, Assistant Attorney General.

The posture of this case is that Mrs. Banks is appealing to this court for review of the Personnel Advisory Board's decision ordering the hiring of Mr. Penei Sewell instead of her. Admittedly the Personnel Advisory Board's decision had a direct and substantial impact on Mrs. Banks' aspirations for the position in question and she may have some cause for complaint. However, the procedural route taken by Mrs. Banks in this [2ASR2d89]instance is not available. The Personnel Advisory Board in this instance was reviewing two conflicting selection processes held for one government position.

The Personnel Advisory Board's decision that the original procedure for selection was proper and ordering the hiring of Mr. Sewell is an executive decision which is not reviewable under the Administrative Procedure Act. Mrs. Banks was not a party before the Personnel Advisory Board and her mere aspiration for the position is not a vested interest subject to protection under the Administrative Procedures Act. She has no standing. Even if we were to find some vested interest there is adequate review provided at the trial Level and pursuant to A.S.C.A. sec. 4.1040(b) the appellate court would decline this review.

The Personnel Advisory Board's decision resolved an internal dispute within the executive branch about a selection procedure. If that resolution violates Mrs. Banks' civil rights or other common law or statutory right she should proceed with an action in the Trial Division against the American Samoa Government or in the alternative the Equal Opportunity Employment Commission.

Motion for summary judgment is granted.

**********

*Honorable Charles Ala'ilima, Judge, District Court of American Samoa, sitting pro tem by designation of the Secretary of the Interior. 

Va'aleama; Siliga v.


VAILAAU N. SILIGA, Claimant

v.

FA'AUAA VA'ALEAMA, et. al. Counter Claimants

[In Re Matai Title "LE'IATO"]

High Court of American Samoa
Land & Titles Division

MT No. 010-85

March 5, 1986

__________

Where a candidate for a matai title might not have been born on American soil but was born of inhabitants of American Samoa and has lived in American Samoa for at least ten years prior to registering for the title, he comes within the exception of A.S.C.A. section 1.0403(b)(2) to the requirement that candidates be born on American soil.

Before GARDNER, Chief Justice, Presiding, TAUANU'U, Chief Associate Judge, OLO, Associate Judge, VAIVAO, Associate Judge, and APE, Associate Judge.

Counsel: Pro se, Soli S. Aumoeualogo
For Lea'oa V. Manuma, Aitofele Sagapolutele
For Vailaau N. Siliga, Puleleiite Tufele
For Igafo Faigata, Fa'ivae Galea'i
For Malepeai Setu, Lutu Tenari
For Va'a Le'iato, Tuana'itau Tuia
For Eteuati Tupua Le'iato, Tauese Sunia
For Va'aleama Malau'ulu, Meauta Mageo
For Te'o Tu'itu'i, utu Siagege

Pursuant to section 1.0409 A.S.C.A., the court makes the following findings of fact regarding the candidates for the above title.

1. The best hereditary right.

In the Western World of written history genealogy is easy. In any history of Europe one can find the genealogy of the great families--Hapsburgs, Romanoffs, Bourbons--with dates of births, marriages and deaths set forth in exact detail. Such is not the case in which history is oral, handed down through the years by word of mouth. This gives rise to some baffling results. For example, an inspection of the questionnaires on file reflects lists of holders of the title varying from 6 to 12, with 10 or 11 being the usual choice. So too, the clans may vary--from one to [2ASR2d95] four. As to generations of claimant's families from the first title holder: to the claimant, this varies from six to twelve. Obviously, they can't all be right.

The court has no hesitation in finding that each of the candidates has a direct blood line to Le'iato Togiola, the first holder of the title. However, the court cannot find that any candidate prevails over the others in this regard.

This is an ancient title--the consensus being that 10 or l2 people have held the title. We do not know what period of time this covers but it must be quite a period. For example, we do know that the last two title holders held the title for approximately 60 years. Under these circumstances a claim of 10 or l2 generations (1/1024 or 1/4096) seems realistic and since several candidates make claims in this general category, no one prevails. Claims of lesser generations simply are not accepted by the court.

2. The wish of a majority or plurality of the clans.

As is usual in a title of this antiquity, there is disagreement even as to the number or names of the clans. The number varies from one to four and a check of the questionnaires lists seventeen names for these clans. Thus, each candidate has some clan support but no candidate can be said to have the support of a majority or plurality of the clans. 3. The forcefulness, character and personality of the candidate and his knowledge of Samoan customs. Here, again, no one prevails. Each candidate is a man of honor and of integrity. Each is an honest, God-fearing and responsible member of society. In court each displayed an acceptable knowledge of Samoan customs and traditions and of the customs, traditions and history of this family. No one candidate prevailed over the others. 4. The value of the holder of the title to the family, village and country.

Here candidate Tupua Le'iato prevails.

This candidate is one of the most respected citizens of American Samoa. His 29 years as a Medical Doctor at L.B.J., his four years as a member of the House of Representatives including two years as Speaker and his many community activities make him one of the outstanding inhabitants of the territory. Insofar as the village and the family are concerned he has served both unselfishly. With his proven qualities of leadership, his value to the village and family are obvious. He can restore peace and harmony to the family.

Therefore, based on the above findings of fact, the court [2ASR2d96] concludes as a matter of law that since candidate Tupua Le'iato prevails over the other candidates on issue (4) he shall be selected to bear the title Le'iato and the Territorial Registrar is order to certify his name as holder of that title.

Two matters merit further discussion.

A Western Samoan birth certificate is in evidence which states that two persons bearing the same names as this candidate's parents gave birth to a boy (bearing another name) on the date of candidate's birth. Candidate Tupua Le'iato swears under oath that he was born in American Samoa and that his parents have always so advised him.

The fact of birth is always based on hearsay except as to those actually present at the birth--the mother and anyone else physically present. Thus, we are faced with two types of hearsay, what candidate Tupua Le'iato 's parents told him and what the birth certificate reflects. Therefore, we resort to reasonable inference.

Clearly, this candidate's parents were inhabitants of American Samoa. His father was born here. His mother was born in Western Samoa. However, both were inhabitants of American Samoa. If, indeed, the mother did go to Western Samoa for the birth of her child it was but a temporary trip and since this candidate has clearly lived here for more than ten years prior to registering for this title, he comes within the provisions of section 1.0403 (b)(2) A..S.C.A.

The second matter on which we wish to comment is the matter of candidates filing for registration while the family is still debating the subject.

We are disturbed by the ever-growing practice of candidates filing for a title before the family has had a real opportunity to select a matai in accordance with traditional custom. Under Fa 'a Samoa, a matai is selected by a consensus of the aiga. All too often, a candidate will file while the family is still trying to reach a consensus. This case is a good example. The family was still deliberating when one candidate filed. All other potential candidates were then forced to file to protect their own interests. The case then proceeded to court without giving the family a real opportunity to make its own selection.

Current law allows this type of abuse of traditional custom in the selection of rnatais. We suggest that the Fono study this subject and enact appropriate legislation to curb this practice by which the court finds itself thrust into the selection process before the family has had a complete opportunity to make the selection in accordance with Fa'a Samoa. Too many matai selections are made by the court instead of by the family.

**********

In re Complaint of Interocean Ships (M/V Ocean Pearl ).,


In Re Complaint of INTEROCEAN SHIPS, INC.,
Owner and Operator of the M/V OCEAN PEARL

High Court of American Samoa
Trial Division

CA No. 043-84

March 28, 1986

__________

Under the Rules of the High Court only members of the court's bar may practice in the High Court and although the High Court may accept briefs from counsel who are not members of its bar, counsel must comply with local rules regarding the filing of motions.

Before GARDNER, Chief Justice, Presiding.

Counsel: For Plaintiff, William Reardon
For Defendant/Claimant, John A. Marin

In this matter Claimant Robert Parkerson, represented by counsel, John A. Marin of California, has filed a motion for change of venue and for a dismissal of the complaint for exoneration from or limitation of liability. The court will set this matter for a hearing March 19, 1986 at 9:00 a.m. in the High Court.

Counsel for the moving party is not a member of the American Samoa Bar: Association. Under the Rules of the High Court only members of this bar may practice in this court. Prior to this hearing counsel for the moving party must associate a member of this bar and secure approval of the court to appear as counsel Pro Hac Vice. In prior matters in this case the court accepted briefs from counsel not members of this bar. This, however, is a motion and counsel must comply with local court rules before proceeding.

**********

In re Complaint of Interocean Ships (M/V Ocean Pearl).,


In Re Complaint of INTEROCEAN SHIPS, INC.,
Owner and Operator of the M/V OCEAN PEARL

High Court of American Samoa
Appellate Division

AP No. 032-84

November 11, 1985

__________

Because the courts of American Samoa are not U.S. District Courts they do not have the power implied by 46 U.S.C. section 185 to enjoin "all other claims and proceedings" against the owner of a ship.

Neither A.S.C.A. section 3.0208(a)(3) nor procedural rules can confer jurisdiction on the High Court to the full extent given a U.S. district court by 46 U.S.C. section 185.

When the Fono enacted A.S.C.A. section 3.0208(a)(3) conferring admiralty jurisdiction on the High Court it included within that jurisdiction the substantive principle of admiralty law limiting a ship owner's liability to its interest in the vessel and its freight.

Neither the Fono nor the High Court can extend the jurisdiction of the High Court to encompass proceedings in other jurisdiction.

The High Court is a territorial court duly constituted under Article IV of the U.S. Constitution.

The High Court can exercise at least some authority not specially granted it by Congress.

Before MURPHY, Associate Justice, HEEN* and MARQUEZ,** Acting Associate Justices.

Counsel: For the Appellant, William Reardon
For the Appellee, Roy J.D. Hall, Jr.

Although this matter is characterized by appellant Interocean Ships, Inc. (Interocean), as an appeal from the July 27, 1984 order of the Trial Division dismissing Interocean's complaint seeking to limit its liability in an action brought against it and its vessel M/V Ocean Pearl (Ocean Pearl), and others, it really seeks issuance from this court of an extraordinary writ directing the Trial Division to "reinstate its complaint." We grant Interocean's petition for the writ but hold that the Trial Division has no authority to issue the injunction asked for by Interocean.

This case has its genesis on or about November 22, 1983, [2ASR2d77] when an explosion occurred on board the Ocean Pearl in which a seaman employed thereon, Afamiliona Fa'atasiga (Fa'atasiga), was injured. On December 28, 1983, Fa'atasiga filed an in rem admiralty action in the Trial Division to recover damages for his injuries. The Ocean Pearl was arrested pursuant to Fa'atasiga's complaint and, thereafter, was released upon the posting of a sufficient bond. The parties hereto agree that other actions have been filed arising out of the same explosion, in United States District Courts in the District of Hawaii and the Southern District of California.

On or about May 23, 1984, Interocean filed its complaint, alleging that the claim arising from the explosion exceed its interest in the Ocean Pearl. Appellant sought to limit its liability to its interest in the vessel and to have an injunction issued to halt all actions in other United States jurisdictions and to have them proceed in the High Court pursuant to 46 U.S.C. secs. 183 and 185. Fa'atasiga intervened and the Trial Division ordered the dismissal after a hearing.

In ordering the dismissal, the very learned judge of the Trial Division stated:

46 U.S.C. 185 allows a vessel owner to petition a District
Court of the United States of competent jurisdiction. The
High Court of American Samoa is not a District Court of the
United States. This Court has no jurisdiction over this matter.
Matter dismissed.

In the Appellate Division, Interocean argues that it does not seek relief under 46 U.S.C. section 185 (1) but under the [2ASR2d78] admiralty jurisdiction of the High Court of American Samoa. American Samoa Code Annotated (A.S.C.A.) sec. 3.0208(a)(3). (2) Interocean contends that 46 U.S.C. section 183 (3) substantively [2ASR2d79] limits its liability with regard to claims against the Ocean Pearl to its interest in the vessel, and that, under Rule F(3), American Samoa Trial Court Rules, Supplemental Rules of certain Admiralty and Maritime Claims (Rule F(3) , the Trial Division is empowered to issue an injunction to the same effect as in 46 U.S.C. section 185. We disagree.

We start with the proposition that the courts of American Samoa are not United States District Courts. The power implied in 46 U.S.C. section 185. Petition of Liverpool, Brazil & River Plate Steam Navigation Co., 57 F. 20 176 (2nd Cir. 1932), to enjoin "all other claims and proceedings," simply does not exist [2ASR2d80] in this court and is not argued for by Interocean. (4)

In Norwich & New York Transportation Co. v. Wright. 80 U.S. 585 (1972), the Supreme Court stated that even prior to enactment of the Shipowner's Limited Liability Acts, now 46 U.S.C. section 181 et seq., it was the law of admiralty that a shipowner was liable only to the extent of his interest in the ship and the freight, and the first Limited Liability Act was drawn with direct reference to those previous principles and laws. See also 70 Am. Jur. 2d Shipping sec. 314 (1973).

Subsequent to Norwich, Congress amended 46 U.S.C. section 185 so as to provide that a shipowner may petition a "district court of the United States of competent jurisdiction" for limitation of his liability in accordance with the act. The law provides the procedure for effecting the limitation by halting claims in courts of other jurisdictions.

We hold that when the Fono enacted A.S.C.A. section 3.0208(a)(3) conferring admiralty jurisdiction on this court, it included within that jurisdiction the substantive principle of admiralty law limiting a shipowne1.'s liability to its interest in the vessel and its freight. However, neither A.S.C.A. section 30208(a) (3) nor procedural rules can confer jurisdiction to effect such limitation by injunction to the full extent given to a United States District Court by 46 U.S.C. section 185. Only Congress can do that, either through an Organic Act for American Samoa, or through other legislation clearly giving this court the power of specific matters. The Fono cannot extend the jurisdiction of this court to encompass proceedings in other jurisdictions. Neither can this court accomplish that result through its procedural rules.

This situation here is analogous to that presented in Bigelow v. Nickerson, 70 F. 113 (7th Cir. 1895), where the court held that a Wisconsin statute which required that an action for damages, caused by a death occurring on Lake Michigan but within Wisconsin's borders, could only be brought in a state court was void. The statute was determined to be a limitation on the enforcement of a private cause of action that excluded the jurisdiction of the federal courts.

In the instant case, if we were to direct the Trial Division to issue the injunction we would, in effect, be depriv1ng a claimant not within this jurisdiction but within the jurisdiction of a United States District Court of his right to seek relief in that court. Moreover, we would be excluding a competent United [2ASR2d81] States District Court from its jurisdiction to hear that claim.

We think it not competent for a state to do so restrict a general
right that one entitled to invoke the jurisdiction of a federal court in
the prosecution or defense of a suit may not assert the right so granted
in a federal court, or that the state may in any way restrict the exercise
of the jurisdiction of a federal court[.]

Bigelow v. Nickerson. supra. at 120.

If the state of Wisconsin could not restrict such a claim or jurisdiction by statute, certainly this court cannot do so by statute or procedural rule.

We do not find In Re Bowoon Sangsa, 720 F. 2d 595 (9th Cir. 1983), cited by Interocean, to be precedent for the injunctive action requested from the Trial Division. The case simply does not stand for the principle argued for by Interocean.

Neither do we believe it a proper exercise of judicial discretion to mandate the issuance of an injunction of highly doubtful legitimacy and enforceability on the ground that other courts might recognize it and observe its terms on the basis of comity. Comity is too tenuous a thread upon which to hang this court's action. Moreover, Interocean could find itself in a more chaotic situation if only some courts, but not others, chose to grant comity to the mandate of this court. Thus, Interocean's argument that the jurisdiction would make for judicial economy simply does not hold water.

We grant Interocean's request that we mandate the Trial Division to take jurisdiction of the petition and limit Interocean's liability in this matter to its interest in the M/V Ocean Pearl and its freight. In all other respects, the petition is denied.

MURPHY, Acting Chief Justice, concurring.

At the outset I note that both the Trial and Appellate Division are quite correct in pointing out that the High Court of American Samoa is not a United States District Court. The vessel Pacific Princess v. Trial Division, 2 A.S.R. 2d 21 (1984). It is a territorial court duly constituted under Articles IV of the United States Constitution. This fact has cause problems for the Territory and the Court. As Chief ,Justice Gardner pointed out in his concurring opinion in Pacific Princess, "To me the lack of access by the residents of this territory to a court with federal jurisdiction is troublesome. I think this is the only territory of the United States which is not within the jurisdiction of a United States District Court." Id. at 24. American Samoa has a United States Post Office, F.D.I.C. insured banks, a Social security Office, F.A.A. installations and numerous other federal [2ASR2d82] contacts. When legal problems arise concerning these enterprises the appropriate forum would usually be a United States district court.

Some federal legislation affecting American Samoa specifically provides for enforcement by the High Court. The Wholesome Poultry Products Act (21 U.S.C. seas. 451 et seq.) and the Wholesome Meat Act (21 U.S.C. seas. 601 et seq.), for example, provide that "The United States district courts, the District Court of Guam, the District Court of the Virgin Islands, the highest court of American Samoa, and the United States courts of the other Territories, are vested with jurisdiction specifically to enforce, and to prevent and restrain violating of, this Act." 21 U.S.C. seas. 467(c), 674. A few Acts allow enforcement of claims arising in American Samoa in a particular district court. The Federal Water Pollution Control Act (33 U.S.C. seas. 1251 et seq.) and the Marine Protection, Research, and Sanctuaries Act (33 U.S.C. seas. 1401 et seq.) provide that "in the case of American Samoa and the Trust Territory of the Pacific Islands [actions may be brought in] the District Court of the United Sates for the District of Hawaii." 33 U.S.C. seas. 1321(n), 1322(m), 1402(g) .

The most common approach, however, is that typified by the Right to Financial Privacy Act (12 U.S.C. seas. 3401 et seq.) which defines financial institution as a particular type of business "located in any State or territory of the United States, the District of Columbia, Puerto Rico, Guam, American Samoa, or the Virgin Islands." 12 U.S.C. seas. 3401(1). The Act goes on to provide that certain remedies are to be pursued "in the appropriate United States district court." 12 U.S.C. seas. 3410(a). The Surface Mining Control and Reclamation Act (30 U.S.C. seas. 1201 et seq.), as another example, defines state as "a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, and Guam," (30 U.S.C. sea. 1291(24) and further provides that an action by the Secretary of the Interior approving or disapproving a state surface mining program "shall be subject to judicial review by the United States District Court for the District which includes the capital of the State whose program is a issue." 30 U.S.C. sea. 1276(a). Clearly in such cases it was the intent of Congress to make available a federal court in which to adjudicate all disputes which arise under the Act. Only in American Samoa is this not possible.

One is strongly tempted to believe that the lack of access to such a court is the result of Congressional oversight and inattention rather than a deliberate attempt to exclude American Samoa.

American Samoa came under the jurisdiction of the United States through treaties of cession executed on April 10, 1900 and July 16, 1904. The treaties were not ratified by Congress until 1929. 48 U.S.C. secs. 1661, 1662. In, that Act, Congress [2ASR2d83] delegated to the President all civil and judicial power necessary to administer the territory. In 1951 administration was transferred by the President from the Secretary of the Navy to the Secretary of the Interior. Congress has never passed an organic act but the Department of Interior did approve the adoption of a constitution in 1960 that provides for executive, legislative and judicial branches. In 1977 a provision for an elected Governor and Lieutenant Governor was promulgated by the Department of the Interior. Finally, in 1983 Congress enacted legislation providing that amendments to the American Samoa Constitution can be made only by Act of Congress. 48 U.S.C. sec. 1662(a).

The High Court has stated that "Congress nevertheless retains all legal authority over the people of this territory and all departments of its government, and may legislate directly for the territory, abrogate its laws, void a valid act, or validate a void act. Simoa v. American Samoa Government, 2 A.S.R. 2d 9, 10 (1984), citing Inter-Island Steam Navigation Co. v. Territory of Hawaii, 305 U.S. 306 (1938). This legal authority extends to the High Court.

This does not, however, mean that the High Court can act only where specifically empowered to do so by Congress. In 1975 the Fono (Legislature of American Samoa) passed a bill conferring in rem and in personam admiralty jurisdiction on the High Court. A.S.C.A, sec. 3.0208(a)(3). This was held to be a proper grant of admiralty jurisdiction in Meaamaile v. American Samoa, 550 F. Supp. 1227 (D.Haw. 1982). In that case a Samoan sailor injured aboard a Western Samoa vessel under charter to the government of American Samoa brought an action in the United States District Court for the District of Hawaii. Judge King, in dismissing the action, referred the plaintiff to the High Court. He held that it is not necessary for admiralty jurisdiction to be directly and specifically conferred upon territorial courts by Congress. "Rather, Congress may properly delegate plenary authority, including judicial authority, to govern a territory to the Executive. That is exactly what Congress has done in the case of American Samoa. Pursuant to its grant of plenary judicial power over American Samoa, the Executive has properly conferred in rem admiralty competence upon the High Court by approving the act of the American Samoa legislature set forth above." Id. at 1237-1238.

So the High Court can exercise at least some authority not specifically granted it by Congress. To carry out its admiralty jurisdiction to the High Court adopted admiralty rules, including rules for the conduct of this type of limitation action. American Samoa Trial Court Rules, Supplemental Rules for Certain Admiralty and Maritime Claims, Rule (3). The question faced by the court in this case is whether the High Court's admiralty jurisdiction properly extends to the limitation of liability and the issuance of an injunction to protect the validity of such a

limitation, if proper. [2ASR2d84]

I agree with the reasoning of the majority opinion regarding the power of this court to limit a shipowner's liability as part of its inherent authority as an admiralty court. The question of the power of the High Court to enjoin proceedings in other jurisdictions is more troubling. A limitation action without injunctive relief is a right without a remedy.

Chief Justice Gardner faced a similar problem in a Trial Division case, Security Pacific Bank v. M/V Conquest, 2 A.S.R. 2d 40 (1985). In that case the plaintiff brought an action under 46 U.S.C. section 951 to foreclose a preferred ship mortgage. That section of the Act provides "original jurisdiction of all such suits is granted to the district courts of the United States exclusively." Justice Gardner held that the purpose of that phrase was to ensure that no state court would attempt to exercise jurisdiction over a ship mortgage. Lacking a United States District Court to exercise its "exclusively, original" jurisdiction a mortgage can be foreclosed in any court exercising valid admiralty jurisdiction, the court held: The Chief Justice distinguished his holding in Conquest from the case before us as follows: "Proceedings under [46 U.S.C. 195 are] far beyond the jurisdiction of this court since they involve the injunction of proceedings in United States district courts or state courts and the marshalling of claims of creditors." Id. at 42-43.

Chief Justice Gardner also .looked to the purpose of the Ship Mortgage Act in deciding that the High Court could exercise the jurisdiction granted "exclusively" to the United States district courts. He found that the Act's intent to stimulate private investment in the shipping industry would be thwarted if security interests in financed ship could be avoided simply by taking a ship beyond the jurisdiction of any district court. Id. at 41.

It has been held that the purpose of 46 U.S.C. section 185 is to permit all actions to be consolidated in one action which will dispose of all claims against a vessel owner. Complaint of Caldas. 350 F. Supp. 566 (D.Penn. 1972). Proceedings under section 185 have also been said to be designed to marshal all claims against a vessel and owner. Petition of Canada S.S. Lines. Ltd. .93 F. Supp. 549 (D. Ohio 1950). Certainly these purposes are not promoted by denying the High Court the power to enjoin proceedings in other forums.

"The bottom line" as economists and accountants are fond of saying is as follows: owners of vessels entering Pago Pago harbor have fewer substantive rights than in any other American harbor, and perhaps fewer rights than afforded by Commonwealths having free association compacts with the United States.

The Government of American Samoa and much of the local business community seem to feel, rightly or not, that the fishing [2ASR2d85] industry is the mainstay of the Territory's economy. Judge Gardner's concern about the economic consequences to the shipping industry set forth in Conquest as to mortgage foreclosures applies also to limitation actions.

My closing observation as to the majority opinion is lifted from another Gardner classic "correct it may be, right it is not" Crammer v. Shay, 94 Cal..3d 242, 156 Cal. Rptr. 303 (1979), at 307.

**********

*Honorable Walter M. Heen, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting pro tem by order of Chief Justice Gardner.

**Honorable Alfredo C. Marquez, United States District Judge, District of Arizona, sitting pro tern by order of Chief Justice Gardner.

1. 46 U.S.C. sec. 185 provides:

Petition for limitation of liability; deposit of value of interest in court; transfer of interest to trustee.
The vessel owner, within six months after a claimant shall have given to or filed with such owner written notice of claim, may petition a district court of the United States of competent jurisdiction for limitation of liability within the provisions of this chapter, as amended, and the owner (a) shall deposit with the court, for the benefit of claimants, a sum equal to the amount or value of the interest of such owner in the vessel and freight, or approved security therefor, and in addition such sums, or approved security therefor, as the court may from time to time fix as necessary to carry out the provisions of section 4283, as amended [46 U.S.C. sec. 183], or (b) at his option shall transfer, for the benefit of
claimants, to a trustee to be appointed by the court his interest in the vessel and freight, together with such sums, or approved security therefor, as the court may from time to time fix as necessary to carry out the provisions of section 4283, as amended [46 U.S.C. sec. l83]. Upon compliance with the requirements of this section all claims and proceedings against the owner with respect to the matter in question shall cease.

2. A.S.C.A. sec. 3.0208(a)(3) provides:

Jurisdiction of divisions.

(a) The trial division of the High Court shall be a court of general jurisdiction with the power to hear any matter not otherwise provided for by statute. Notwithstanding the foregoing, the trial division of the High Court shall have original jurisdiction of the following classes of cases and controversies:
* * *
(3) admiralty and maritime matters, of which the trial division shall have both in rem and in personam jurisdiction[.]

3. 46 U.S.C. sec. provides:.

Amount of liability; loss of life or bodily injury; privity imputed to owner; " seagoing vessel "

(a) The liability of the owner of any vessel, whether American or foreign, for any embezzlement, loss, or destruction by any person of any property, goods, or merchandise shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall not, except in the cases provided for in subsection (b) of this section, exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.

(b) In the case of any seagoing vessel, if the amount of the owner's liability as limited under subsection (a) is insufficient to pay all losses in full, and the portion of such amount applicable to the payment of losses in respect of loss of life or bodily injury is less than $60 per ton of such vessel's tonnage, such portion shall be increased to an amount equal to $60 per ton, to be available only for the payment of losses in respect of loss of life or bodily injury. If such portion so increased is insufficient to pay such losses in full, they shall be paid therefrom in proportion to their respective amounts.

(c) For the purposes (If this section the tonnage of a seagoing steam or motor vessel shall be her gross tonnage without deduction on account of engine room, and the tonnage of a seagoing sailing vessel sh,3ll be her registered tonnage: Provided, That there shall not be included in such tonnage and space occupied by seamen or apprentices and appropriated to their use .

(d) The owner of any such seagoing vessel shall be liable in respect of loss of life or bodily injury arising on distinct occasions to this same extent as if no other loss of life or bodily injury had arisen.

(e) In respect of loss of life or bodily injury the privity or knowledge of the master of a seagoing vessel or of the superintendent or managing agent. of the owner thereof, at or prior to the commencement of each voyage, shall be deemed conclusively the privity or knowledge of the owner of such vessel.

(f) As used in subsections (b), (c), and (e) of this section and in section 4283A [46 U.S.C. sec. 183b], the term "seagoing vessel" shall not include pleasure yachts, tugs, towboats, towing vessels, tank vessels, fishing vessels or their tenders, self-propelled lighters, nondescript self-propelled vessels, canal boats, scows, car floats, barges, lighters, or nondescript non-self-propelled vessels, even though the same may be seagoing vessels within the meaning of such term as used in section 4289 of this chapter, as amended [46 U.S.C. sec. 188].

4. For such an argument to be sustained, one would have to read into 46 U.S.C. section 185 an intent by Congress to include this court within the term United States District Court. Interocean has not directed us to anything indicating such intent and we have found nothing.

Workmen's Comp. Comm’n; Saunoa v.


FIAPA'IPA'I SAUNOA, Appellant,

v.

WORKMEN'S COMPENSATION COMMISSIONER,
AMERICAN INTERNATIONAL UNDERWRITERS
(AIU) and STAR-KIST SAMOA, INC.

High Court of American Samoa
Appellate Division

AP No.5-84

April 5, 1985

__________

The statutory presumption that an injury is work related requires an employer to rebut the presumption by substantial evidence.

Before KING* and HEEN,*Acting Associate Justices, TAUANU'U, Chief Associate Judge and LUALEMAGA, Associate Judge.

Counsel: For the appellant, Mulitauaopele I.S. and Asaua Fuimaono
For the WCC, Harry Holifield, Assistant Attorney General
For AIU and Star-Kist Samoa, Hall & Associates by Gary Hynds

KING, J.

FACTS

Appellant contracted an ailment which resulted in partial blindness. The first symptoms occurred while she was at work at the Star-Kist cannery. Her claim for Workers' Compensation payments was denied by the commission; the denial was upheld by the trial division of the high court. This appeal followed.

DISCUSSION

Appellant contends that the commission and the trial court failed to give proper weight to the A.S.C.A. section 32.0642 presumption that "in the [2ASR2d44] absence of substantial evidence to the contrary. the claim comes within" the workers' compensation statutes. Appellant argues that this statute requires that the commission and the trial court find her claim was covered because the employer failed to produce any evidence that it was not. Appellees argue that they may rely on the claimant's evidence to rebut this statutory presumption.

The State of Hawaii has a similar statute which was discussed at some length in Akamine v. Hawaiian Packing & Crating Co. (Hawaii 1972) 495 P.2d 1164. What the Hawaiian Supreme Court said there is relevant here.

The presumption is not a mere procedural device that disappears
upon the introduction of contrary evidence... It imposes upon the
employer the burden of going forward with the evidence and the
burden of persuasion. It may be rebutted only by substantial
evidence that it [the claim] is unrelated to the employment.....
Substantial evidence is relevant and credible evidence of a quality
and quantity sufficient to justify a conclusion by a reasonable man
that an injury or death is not work-connected....The presumption
is further strengthened by a finding that the death or injury occurred
in the course of employment..... If the employer fails to adduce
substantial evidence to the contrary, the presumption mandates that
the claimant must prevail.

Id. at 1166.

The appellees did not put on any evidence at the hearing before the commission or at the trial before the high court. Instead the appellees relied on the evidence adduced during the appellant's presentation at the hearing and trial.

The appellees also argue that this statutory presumption "does not take the place of competent evidence, and once evidence is introduced that tends to controvert the work-related nature of the injury, the presumption must fallout of the case and the claimant has the burden of proving all elements of his claim." Brief of appellees AIU and Star-Kist Samoa at 4.

Appellees further argue that "[i]t is necessary for Appellant to establish some kind of preliminary link with the employment before the presumption can attach." Brief of Appellee Workmen's Compensation Commission (WCC) at 2.

There is a sufficient preliminary link to claimantis employment by a showing that some aspect of the injury occurred while the claimant was on the job. See Hartford Fire Insurance Co. v. Workmen's Compensation Commission (1979) AP No.15-79.

If the claimant were required to show that the injury in question was work-related in order for the presumption to come into play, there would be no need for the presumption.

The Hartford Insurance case makes it clear that the statutory presumption did "shift the burden of proof on the issue of causation to Appellant [employer], and required Appellant to meet that burden by substantial evidence." Id. at 1.

The Workmens' Compensation Commission considered "the central issue in this particular case" to be "whether Appellant's injury was the result of her employment with Starkist cannery that Friday morning on 18 July, 1980." Brief of Appellee WCC at 5. This misstates the issue.

The employer likewise misstates the issue. "In the present case, if there was any relevant evidence which tended to indicate Appellant's illness was not related to her work, then the presumption contained in A.S.C.A. 32.0642 falls from the case and the burden is upon the Appellant to demon[2ASR2d45]strate the connection between her illness and her employment." Brief of Appellees AIU and Star-Kist Samoa at 4-5.

The correct question is whether, once the statutory presumption applies, the employer has met the employer's burden of proof that the injury in question was not work-related, by substantial evidence.

The employer did not offer any evidence, but argues from evidence adduced during Appellant's case.

We agree that the employer may meet his burden of proof in reliance upon the evidence introduced during the claimant's presentation before the Workmen's Compensation Commission. The only evidence relied upon by the appellees in this case is certain testimony by Dr. Iotamo Saleapaga, an internist called by claimant as an expert as to claimant's injury, both as to cause and extent.

Dr. Saleapaga assumed that claimant had an attack of pneumococcal meningitis because that was the diagnosis of Dr. Hess who was the admitting physician at L.B.J. Hospital when claimant was admitted on July 23, 1980. He testified that this particular ailment is caused by a pneumococcus that is found normally in the throat area of 40 to 60 percent of people, that it is not contagious, and that the organisms just "get mad" and invade the bloodstream causing infections, sometimes in the brain, sometimes in the lung. He testified that he was depending upon Dr. Hess' microscopic observations and that a laboratory report on a culture did not confirm Dr. Hess' diagnosis. There was no testimony as to what conditions or influences--for example, work-related or nonwork-related conditions--would cause the pneumococcus to "get mad."

We are of the opinion that the evidence relied upon by appellees does not constitute the substantial evidence necessary to overcome the statutory presumption of A.S.C.A. section 32.0642.

The denial of coverage by the Workmen's Compensation Commission and the affirmance thereof by the trial division of the high court are reversed.

The case is remanded to the Workmen's Compensation Commission with instructions to enter an order that appellant's claim comes within the provisions of A.S.C.A. chapters 32.05 and 32.06.

**********

*Honorable Samuel P. King, United States District Judge, District of Hawaii, sitting by designation of the Secretary of Interior.
**Honorable Walter M. Heen, Assoeiate Justice, Intermediate Court of Appeals, State of Hawaii, sitting by designation of the Secretary of Interior.

Willis v. Maepo


JOSEPH L. WILLIS, Appellant

v.

PAUL WILLIS and TINA MAEPO, Appellee

High Court of American Samoa
Appellate Division

AP No. 011-83

March 18, 1986

__________

The Appellate Division can set aside the findings of the trial court only if they are clearly erroneous.

A Samoan family can own communal land even though they choose to bear the surname of a European ancestor.

Before MURPHY, Associate Justice, presiding: KING,* Acting Associate Justice, and HEEN, **Acting Associate Justice.

Counsel: For the Appellant, Albert Mailo
For the Appellee, Talalelei Tulafono

PER CURIAM:

Appellant Joseph Willis brought an action seeking a judicial determination that certain land belonged to him as opposed to his siblings. His claim was based upon the theory that their mother acquired title to the land pursuant to a deed executed in 1940 arid conveyed her ownership to Joseph by testamentary succession.

The Trial Court found that nothing was conveyed by the deed that the v1illis family had resided upon and cultivated the subject land since 1929. The Court concluded that the subject land is the communal land of the Willis family.

This Court can set aside the findings of the Trial Court only if they are clearly erroneous, United States v. United States Gypsum Co. (1948) 333 U.S. 364. The facts found by the Trial Court are supported by testimony the Trial Court found credible. Hence there is no basis upon which to disturb the findings.

The only issue worthy of appellate review is Appellant's contention that the Willis family cannot own communal land since it is not a traditional Samoan family. The facts showed that Alexander Willis was one half Samoan and his wife Falesau was full blooded Samoan. Their progeny, the litigants herein, are 3/4 Samoan. True, they bear the name of a papalagi grandfather rather than a Samoan name but so do many Samoans. (A member of this Court, Judge Vaivao, is a Fruean.) [2ASR2d103]

According to the Associate Judges there is no reason why a Samoan family cannot own communal land even though they choose to bear the surname. of a European ancestor.

The decision of the Trial Court is affirmed.

***********

*Honorable Samuel P. King, United States District Judge, District of Hawaii, sitting pro tem by order of Chief Justice Gardner.

**Honorable Walter M. Heen, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting pro tem by order of Chief Justice Gardner.

Great American Ins. Co.; Vessel Pacific Princess v.


IN THE MATTER OF THE COMPLAINT OF
INTEROCEAN SHIPS, INC., OWNER AND
OPERATOR OF THE M/V "OCEAN PEARL,"
FOR EXONERATION FROM OR
LIMITATION OF LIABILITY

High Court of American Samoa
Trial Division

CA 43-84

July 27, 1984

__________

This court has no jurisdiction to hear a petition for a limitation of liability which may be brought only in a United States district court.

Before GARDNER, Chief Justice, Presiding, TAUANU'U, Chief Associate Judge and OLO, Associate Judge.

GARDNER, C.J.

Interocean Ships, Inc., the vessel owner, filed a petition in the High Court of American Samoa for a limitation of liability pursuant to 46 U.S.C. section 183.

Title 46 U.S.C. section 185 allows a vessel owner to "petition a district court of the United States of competent jurisdiction.... "

The High Court of American Samoa is not a district court of the United States. This court has no jurisdiction over this matter. Matter dismissed.

**********

American Samoa Gov’t; Savage v.


JASON SAVAGE, by and through his Guardian ad Litem,
JOHN SAVAGE, Appellee,

v.

AMERICAN SAMOA GOVERNMENT and FEDERAL
AVIATION ADMINISTRATION, Appellants.

High Court of American Samoa
Appellate Division

AP No.17-83

May 21, 1984

__________

When the government knows of a dangerous condition it is liable for damages caused by its failure to attempt to alleviate it.

Before MURPHY, Associate Justice, Presiding, KING,* Acting Associate Justice, HEEN,** Acting Associate Justice, OLO and APE, Associate Judges.

Counsel: For the appellee, Watson & Reardon by William Reardon
For the appellant, Andrea Smith, Assistant Attorney General

INTRODUCTION

This action is brought under Title 43, Chapter 12, American Samoa Code Annotated, Government Tort Liability. Plaintiff's guardian ad litem filed a claim for injuries sustained by his minor son for dog bite. The attorney general rejected his claim and a lawsuit was filed. After judgment for plaintiff this appeal followed. [2ASR2d7]

STATEMENT OF FACTS

The facts were pretty much undisputed. There is ample evidence in the record to support the following: The five-year-old victim is the son of a government (ASG) employee. The family lives in government owned and assigned quarters in the village of Tafuna. While playing outside his house the child was attacked and bitten by a dog. The dog was a stray; that is, no one claimed ownership of him. Tafuna is infested with large numbers of stray dogs. This particular dog had previously seriously injured another child, a fact that was reported to the Government. Over 200 dog bite cases a year are treated at the Medical Center.

The trial court held the Government liable and fixed damages at $10,000.

DISCUSSION

The trial court held that the government could be liable under either (or both) of 2 theories: government or proprietary capacity.

The court held that notwithstanding the doctrine of sovereign immunity the government was liable in its governmental capacity. This is so because the government had knowledge of an inherently dangerous condition (i.e., one out of every 150 residents was being treated every year for dog bite). The failure of the government to act constituted a failure at the operational level, rather than at the executive or administrative level. In other words, when a condition of such obvious danger exists, the government act, or be liable.

The trial court found that rara avis, a case squarely on point; Hansen v. City of St. Paul (Minn. 1974) 214 N.W.2d 346. In that case the cit (or should have known) of two vicious dogs prowling a certain area, since it had seven bite reports. The Minnesota Supreme Court held that the city's failure to maintain its streets and sidewalks free from the inherently dangerous condition was an operational failure, rather than a discretionary function.

In its brief the government admits that packs of stray dogs exist and are an inherently dangerous condition. It argues, however, that since the dog in this case was identifiable by name and "hung out" in the neighborhood it was not a member of the pack. It was further identifiable since it had previously bitten another child, a fact reported to the government. The government cannot escape liability simply because this particular dog was known. The trial court had ample evidence before it to make the findings and reach the conclusions it did. When an inherently dangerous condition exists the failure to attempt to alleviate the condition is an operational rather than a discretionary function. Furthermore, the Government of American Samoa, in addition to being a territorial sovereign, is also a municipal government. District governors are appointed by the governor. A.S.C.A. sec.5.0103. Pulenu'us are also appointed and paid by the executive. A.S.C.A. sec. 5.0301. Hence the municipal administration of the villages is in fact carried out by the territorial executive.

The trial court also found the government liable in its proprietary capacity. Simply stated, the government was plaintiff's landlord. It assigned him a place to live. It owed him a duty to assign a safe place. Appellant has not addressed this issue in its brief. Apparently it cannot find fault with the trial court's reasoning. Neither can we.

Finally appellant contends the $10,000 award was excessive. Unless we find the trial court abused its discretion and acted arbitrarily and capriciously we should affirm. It didn't; we do. [2ASR2d8]

DECISION

It is ordered that the judgment be and is hereby affirmed.

**********

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

**Honorable Walter M. Heen, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting by designation of the Secretary of Interior.

Aoelua; In re Matai Title


SAUMALEATO VALOVALO AOELUA, appellant

v.

PULOUOLEOLA TAGOA'I, Appellee

[In Re Matai Title "AOELUA"]

High Court of American Samoa
Appellate Division

AP No. 020-85

March 20, 1986

__________

The standard of appellate review of judicial findings is the "clearly erroneous" standard set forth in United States v United States Gypsum Co. 333 U.S. 364 (1948)

Because decisions in matai cases are based on customs and traditions there are no issues of law for the Appellate division to review.

Before MURPHY, Associate Justice, Presiding, KING,* Acting Associate Justice, and HEEN,**Acting Associate Justice.

Counsel: For the Appellant, Aitofele Sagapolutele
For the Appellee, Tuana' itau Tuia

PER CURIAM :

This is an appeal from a decision in a matai case rendered by four Samoan Associate Judges, Chief Justice Gardner presiding. The standard of appellate review of judicial findings of fact is the "clearly erroneous" standard set forth in United States v. United States Gypsum Co., 333 U. S. 364 (1948).

Appellant takes umbrage with the Court's finding that Leuea is the only clan of the Aoelua family. It doesn't matter whether there is or is not only one clan in this family since the Court found botr1 candidates had equal family support. The title was awarded on the finding, purely subjective, that appellee was of greater value to the family and village. There was ample testimony to support that finding and it was not clearly erroneous.

Accordingly, the decision of the trial court is affirmed.

MURPHY, A.J., CONCURRING.

I think perhaps the time has come to examine the wisdom of permitting appeals in matai cases. To state the obvious, judicial appellate review is intended to 1. correct errors of law committed by the trial court, and/or 2. correct clearly [2ASR2d105] erroneous findings of facts or abuse of discretion by the trial court. There really are no issues of law in matai cases since decisions are supposedly based upon customs and traditions. See Foreword, I. Goldman, Ancient Polynesian Society(Chicago, University of Chicago Press, 1970).

The factual questions presented to the trial court generally are: Who has the best hereditary right? Who has the support of the majority of the family? Who is best able to serve the family as the matai? See Laughlin, United States Government Policy and Social Stratification, Vol. 53 Oceania.

These are subjective questions of fact which are determined by a panel of four Samoan Associate Judges. A.S.C. sec. 3.0240. This is a process that was begun in 1906 by a naval regulation promulgated by Commander C.B.T. Moore. (The wisdom of determining matai titles in the High Court in the first place is not addressed in this opinion.) The process has been continueq in one form or another by every succeeding legislature.

Appeals came later. It was not until 1979 that the present composition of the Appellate Division was created. A.S.C. sec. 3.0220. The Appellate Court now is composed of three High Court Justices (usually supplemented by United States Judges on temporary appointment) and two Samoan Associate Judges. Naturally the Justices tend to defer to the Samoan Judges, so two Judges review the fact finding process of four of their peers.

The practical result is that matai cases simply are never reversed or modified on appeal and I think rightly so. It would be absurd for two judges to substitute their opinions for that of four of their colleagues.

What good does the appellate process do? Most families have been without a matai for months or years before the case reaches the trial court. To pursue an appeal simply means that the interregnum is continued additional months. Surely it has a disruptive effect on the family. It affords the disgruntled candidates (who at trial usually pledge support for whomever the court may select) an opportunity to play dog in the manger and sew the seeds of future discontent.

It is interesting to note that in Western Samoa no such appeals are allowed. Western Samoa Constitution Part V, Sec. 44. Maybe in this situation, they've got the right idea.

**********

*Honorable Samuel P. King, United States District Judge, District of Hawaii, sitting pro tem by order of Chief Justice Gardner.

**Honorable Walter M. Heen, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting pro tem by order of Chief Justice Gardner.

 

American Samoa Gov’t v. Vaitautolu,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

TAPULOA VAITAUTOLU. , Defendant

CR No. 010-85

High Court of American Samoa
Trial Division

July 22, 1985

________

A defendant's rights under the Sixth Amendment to the United States Constitution and Article I, section 14 of the Revised Constitution of American Samoa to be present at trial does not entitle a defendant to be present at post-judgment motions.

Before MURPHY, Associate Justice.

Counsel: For the Plaintiff, Mike Bennett, Assistant Attorney General
For the Defendant, Aviata Fa'alevao

FACTS

The defendant requested through his attorney to be present at his motion for new trial. The court apprised of the law denied said request and issues the following opinion.

LAW

Requests by defendants to be present at post-judgment motions or at appellate proceedings come to the court from time to time. This court is of the opinion there are sound legal reasons for these requests to be denied.

Practically speaking, if a defendant had the right to be at every post judgment or appellate proceeding courts would create a potential busing system for prisoners since hearings are often held far from the place of incarceration.

The security risk in transporting prisoners increases after conviction and some prisoners, if the rule requested by the defendant were adopted, might appeal only for the chance to escape.

The right that the defendant relies on is the right to be present at trial under the Sixth Amendment to the United States Constitution in Lewis v. United States, 146 U.S. 371 (1892). (See similar rights of an accused under Art. I sec.l4 of the Revised Constitution of American Samoa). A majority of states have interpreted the right to be at trial limited to proceedings from jury selection to imposition of judgment. See 69 ALR 2d [2ASR2d71] 824-849. In Snyder v. Massachusetts. 291 US 97 (overruled on other grounds, Malloy v. Hogan, 378 U.S. 1), the United States Supreme Court states that a defendant did not have the right to be present at post-verdict hearing although said issue was not presented for decision in that case.

This Court can see no reason to grant the defendant's request to be present at his motion for new trial.

**********

American Samoa Gov’t v. Tuvale,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

MIKA TUVALE, Defendant

High Court of American Samoa
Trial Division

CR No. 104-85

January 23, 1986

__________

An indigent defendant's constitutional right to assistance of counsel includes the right to necessary investigative assistance. An indigent defendant who wishes to have an expert appointed or test conducted at public expense may move the court for such an order and, in accordance with certain procedures, may move and be heard ex parte if notice to the Attorney General would inhibit his defense. It is the responsibility of the executive branch to pay for those experts or tests ordered by the court for indigent defendants.

Before MURPHY, Acting Chief Justice.

Counsel: For the Plaintiff, Mike Bennett, Assistant Attorney General
For the Defendant, William Reardon

On January 21, 1986 Defendant in this case moved the court through his attorney, the Public Defender, to appoint an expert to conduct certain tests in preparation of his defense. Defendant further moved the court to establish a rule permitting the appointment of such an expert on the basis of an ex parte motion.

An indigent defendant's Constitutional right to assistance of counsel includes the right to necessary investigative assistance. Mason v. Arizona, 504 F.2d 1345 (9th Cir. 1974); U.S. v. Hartfield, 513 F.2d 254 (9th Cir. 1975). Federal law permits indigent defendants being tried in United States District Courts to move ex parte for the appointment of experts. 18 U.S.C. sec. 3006A(e). The purpose of providing an ex parte procedure is to keep the government from learning of possible defenses. Section 3006A(e) applies only in united States District Courts (U.S. v. Johnson, 22 USCMA 424 (1973)) and is not controlling in this court. It does, however, provide a useful model.

The standard for determining when an indigent is entitled to the appointment of experts under section 3006A(e) has been held to be whether "a reasonable attorney would engage such services [2ASR2d93] for a client having the independent financial means to pay for them." U.S. v. Bass, 477 F.2d 723, 725 (9th Cir. 1973). This provides a useful guide and, in this case, the court believes that a reasonable attorney might hire the expert Defendant seeks. Therefore, Defendant's motion for analysis of three samples by a laboratory of the defendant's choice is granted.

As to a rule allowing an ex parte procedure, while the court is cognizant of the need for -maintaining confidentiality and for ensuring that the government does not learn prematurely of possible defenses it is also concerned that it not be placed in the position of ordering tests and experts that ultimately prove unnecessary. To try to meet both of these concerns the court hereby establishes the following rule.

An indigent defendant who wishes to have an expert appointed or test conducted to assist in preparing his defense may move the court for such an order. The motion shall be served on the Attorney General and a hearing may be noticed and conducted in the usual manner unless notice to the Attorney General will inhibit the defense. If such is the case the defendant shall move the court for an ex parte hearing and the defendant or his attorney shall file with the court an affidavit stating with particularity the need for an ex parte hearing. The affidavit shall describe how the defendant's case will be impaired by the Attorney General's presence at the hearing. If, after an ex parte hearing the court is not satisfied that the order is necessary it may conduct further inquiry into the need for the expert or test. Such inquiry may include an additional hearing with the presence of the Attorney General at which the court may question the Attorney General in order to establish the need for the expert or test. Such further inquiry by the court shall be conducted so as to minimize the chance of disclosing possible defenses.

As to funding for experts, this must be the responsibility of the Executive branch of the Government. Payment presently can be made through the Treasurer's Office. In the future the Public Defender may want to include such a request in his annual budget.

**********

American Samoa Gov’ t v. To'oto'o,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

AUINA TO'OTO'O, Defendant

High Court of American Samoa
Appellate Division

CR No. 120-84
AP No. 003-85

November 27, 1985

__________

The reasons for imprisonment include preventing the defendant from committing other crimes, rehabilitation, deterrence of others and punishment.

Although no crimes or criminals are identical, similar crimes committed by similar defendants should receive similar sentences.

Before MURPHY, Acting Chief Justice.

Counsel: For the Appellee, John Parton, Assistant Attorney General
For the Appellant, John Ward

Auina To'oto'o was convicted of two counts of larceny and fraud, one count of embezzlement and one count of false entry in a record, all committed by approving loans while acting as president of the Development Bank of American Samoa. The Bank's lawyer, John W. Yon Cramm, the borrower, was also convicted of two counts of larceny and fraud and one count of embezzlement; Both defendants were sentenced to 5 years imprisonment.

After conviction and imprisonment, Yon Cramm: 1. Lost his license to practice law, and 2. Began a course of hospitalization for coronary problems which may have been aggravated by the stress of imprisonment. On motion, the court probated the balance of his sentence on the condition that he repay the loans.

Not surprisingly To'oto'o now moves for relief from his sentence. He argues, correctly, that there are various reasons for imprisonment. One is to prevent the 'defendant from committing other crimes ---impossible in this case since he is no longer president of a bank or likely ever to be one again. Another is rehabilitation, not applicable in this case since the correctional facility is not equipped to help this defendant, and furthermore he didn't benefit from the crime in the first place. A deterrent effect on others may have already been achieved since the fact of exposure, prosecution, conviction and imprisonment has not been lost on others in positions of responsibility. The only reason for further imprisonment in To'oto'o case is [2ASR2d87] punishment. Of course, punishment is a legitimate consideration in criminal sentencing, although certainly not the only or perhaps the paramount consideration.

Comparative sentences are also important. In order for sentences to be fair they should be even handed. No crimes or criminals are identical, but similar crimes, committed by similar defendants should receive similar sentences. In other words, uniformity of sentencing is desirable. Judges (contrary to popular belief) are human and will find that tough judges will sentence severely and easy judges leniently. People v. Sutton, 113 Cal. App. 3d 162, 164, 169 Cal. Rptr. 656 (1980)(Gardner, P.J.).

However, sentences should bear a reasonable relationship to the average. "My object all sublime, I shall achieve in time. To make the punishment fit the crime." The Mikado, Act II, William Gilbert.

While the defendants in this case seem to have been treated identically by counsel, prosecutor and court (both trial and appellate) there is actually quite a difference in culpability. Consider, for example; the crime could never have been committed without the concurrence of To'oto'o. Had he (To'oto'o) exercised a public responsibility no crime could have occurred.

The court has asked counsel to review sentences imposed in similar cases. They have done so. As the prosecutor points out, nearly all other "white collar" crimes have been plea bargained. Much more lenient sentences have resulted.

Traditionally, a defendant who exhibits remorse and pleads guilty hopes for, and usually gets, a lighter sentence. On the other hand, a defendant should not be punished for insisting on his constitutional rights to a trial.

Taking all these factors into consideration the Court concludes that the interest of justice would be served by reducing the sentencing of Auina To'oto'o from 5 years to 3 years.

So ordered.

**********

American Samoa Gov’t v. To'oto'o,


AMERICAN SAMOA GOVERNMENT, Appellee

v.

AUINA TO'OTO'O and JOHN W. VON CRAMM, Appellants

High Court of American Samoa
Appellate Division

AP 003-85

June 4, 1985

__________

A statute that punishes an act if performed by an employee of the Development Bank of American Samoa but not if performed by an employee of a commercial bank involves neither a fundamental right nor a suspect classification, and does not deny equal protection of the laws.

The rule that a state may classify persons for the purpose of legislation and pass laws applying such classifications operates to permit a legislative scheme classifying the officers and employees of the Development Bank of American Samoa differently from those of commercial banks in American Samoa.

The improper guaranteeing by an officer of the Development Bank of American Samoa of a loan for the officer's personal use is a conversion of the Development Bank's credit and constitutes the offense of willful misapplication.

The encouragement of economic progress in American Samoa is an acceptable, if not mandatory, interest of the American Samoa Government and the American Samoa Government can enact legislation furthering this interest by discouraging fiduciaries employed by the Development Bank of American Samoa from misappropriating "money, funds, credit or securities" belonging to the Bank.

A motion for new trial is addressed to the sound discretion of the trial court and trial court's decision will not be overturned on review except upon manifest abuse.

Before MURPHY, Associate Justice, KING,* Acting Associate Justice, HEEN,** Acting Associate Justice, and OLO, Associate Judge.

Counsel: For the Appellee, John Parton, Assistant Attorney General
For the Appellant, John Ward

OPINION

Defendant Auina To'oto'o appeals from his conviction of the offenses of Larceny and Fraud (Counts I and II), Embezzlement [2ASR2d62] (Count III), and making a false entry in a "book, report, or record" of the Development Bank of American Samoa (Development Bank) (Count IV). Co-defendant John W. Von Cramm appeals from his conviction together with To'oto'o on Counts I, II and III. We affirm.

The information charged the defendants with (I) having unlawfully extended the Development Bank's guarantee of repayment of Bank of Hawaii's $15,000 loan to Von Cramm: (2) providing Von Cramm with a $20,000 loan from Development Bank: (3) transferring funds from the Development Bank's Lumana'i Building account to payoff the $20,000 loan: and (4) providing the Territorial Auditor. with a false list of guaranteed loans --one which did not include Von Cramm's guaranteed loan from Bank of Hawaii. To'oto'o was found guilty of all four charges, and Von Cramm was found guilty of the first three, but acquitted of the fourth.

Defendants argue on appeal that the trial court erred in denying their motions for new trial, judgment of acquittal and "arrest of judgment." We will discuss first the motion in arrest of judgment.

I.

Defendants argue that the information fails to charge a crime, because the statute on which it is based, A.S.C.A. section 28.0111, applies only to Development Bank personnel and treats them differently from personnel of other banks. They contend that section 28.0111 punishes as a felony an act which, if committed by an employee of another bank, under other statutes, would be only a misdemeanor or cause for discharge. We hold that the statute passes constitutional muster.

The fourteenth amendment to the united States Constitution guarantees that "No State shall make or enforce any law which shall... deny to any person within its jurisdiction the equal protection of the laws." A fourteenth amendment attack on a statute presupposes that persons subject to its provisions are in similar circumstances but receive unequal treatment from others. Here, defendants argue that employees of the Development Bank are similarly situated, yet treated differently from employees of other banks in American Samoa in violation of the fourteenth amendment. The argument is without merit.

In an equal protection analysis, the first inquiry is as to the standard employed in the statutory classification of the statute. Sklar v. Byrne, 727 F.2d 633, 636 (7th Cir. 1984). "If the legislative classification neither impinges on a fundamental personal right nor employs an inherently suspect classification, courts will generally uphold the classification if it is rationally related to a legitimate state interest[.]" Id. See also Plyler v. Doe, supra: Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471 (1977); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976); Dandridge v. Williams, 397 U.S. 471 [2ASR2d63] (1970).

Here, the legislative classification involves neither a fundamental right nor a suspect classification. See, e.g., Massachusetts Board of Retirement v. Murgia, supra, at 312 n.3 and 4. The functions and goals of the Development Bank are quite different from other banks in American Samoa, and "[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they are the same." Plyler v. Doe, 457 U.S. 202, 216 (1982) (quoting Tigner v. Texas, 310 U.S. 141, 147 (1940)). One statutory purpose of the Development Bank is to provide a mechanism to receive funds from the United States government and to invest those funds in or lend them to American Samoan residents for businesses contributing to American Samoa's economic development. Another purpose is to make loans to American Samoan residents for home construction. The proper conduct of the Development Bank's business by its employees for the accomplishment of those purposes is of special concern to the American Samoa Government (A.S.G.). It is well settled that a state may classify persons for the purpose of legislation and pass laws applying such classification. 16A Am. Jur. 2d Constitutional Law section 746 (1979). The general rule is broad enough to encompass a legislative scheme classifying the officers and employees of the Development Bank differently from employees of other commercial banks in American Samoa. We see nothing unreasonable or suspect in classifying separately employees of a specialized institution whose function is of extreme importance to A.S.G. We turn then to consideration of the second facet of equal protection analysis, the state interest.

As stated above, the primary function of the Development Bank is to encourage economic progress in American Samoa. That is an acceptable, if not mandatory, interest of the A.S.G., and the statute clearly is intended to further that legitimate interest. By its plain language, section 28.0111, A.S.C.A., is designed to discourage any fiduciary employed by the Development Bank or his accomplice from misappropriating "moneys, funds, credits or securities" belonging to the Development Bank. The singular purpose of those funds is the development of the Samoan economy. That purpose, in general, is crucial to every government and is a legitimate state interest. There is nothing arbitrary about visiting harsher criminal sanctions upon those whose actions are destructive thereof.

Citing United States v. Michael, 456 F. Supp. 335 (D.N.J. 1978), United States v. Krepps, 605 F.2d 101 (3d Cir. 1979), and United States v. Christo, 614 F.2d 486 (5th cir. 1980), defendants argue there was no illegal misapplication of funds or credit and no showing of intent to injure or defraud the [2ASR2d64] Development Bank. (1) Those cases are not helpful to defendants.

In Michael, the general rule is stated to be that, to constitute the offense of willful misapplication, there must be a conversion to the bank officer's own use, or to the use of someone else, of the money and funds of the bank by the party charged. Id. at 339. That is exactly what happened here. The guarantee to Bank of Hawaii was a conversion of the Development Bank's credit, and the loan to Von Cramm was a conversion of its money, both to Von Cramm's use. Additionally, the transfer of funds from the Lumana'i fund account to payoff part of the Development Bank loan to Von Cramm and transform Von Cramm's obligation to that of repaying a "salary advance" also comes within the general rule.

Also destructive of defendants' argument is the statement of the court in United States v. Krepps, supra, that "[i]ntent to injure or defraud a bank exists if a person acts knowingly and if the natural result of his conduct would be to injure or defraud the bank even though this may not have been his motive [s]uch intent may be inferred from facts and circumstances shown at trial and is basically a fact question for the jury.." Moreover, the court held that "[r]eckless disregard of the interests of the bank is equivalent to intent to injure or defraud.[.]" Id. at 104. The evidence in this case clearly and overwhelmingly supports an inference of intent. to defraud under those principles.

Defendants' argument that the information fails to charge an offense is without merit. The wording of each count sufficiently recites the elemental facts and tracks the language of the statute and fully apprised defendants of the charges against them so as to allow them to prepare to meet those charges. We turn now to defendants' motion for new trial.

II.

It is fundamental law that a motion for new trial is addressed to the sound discretion of the trial court and the exercise of that discretion will not be overturned on review except upon its manifest abuse. We find none here.

Our review of the record fails to support defendants' argument that the trial court misapplied A.S.C.A. section 28.0111. As noted above, the extension 'of the Development Bank's [2ASR2d65] guarantee and the Development Bank's loan to Von Cramm constitute, respectively, a misapplication of its credit and its funds in violation of the statute. Defendants' argument that Von Cramm was not an officer of the Development Bank is irrelevant since the evidence showed that the purpose of the loan was not legitimate under section 28.0105. Also, the transfer of funds from the Lumana'i account to pay Von Cramm's loan from the Development Bank was a clear embezzlement. The argument that the Development Bank was merely paying its own money from one account to another ignores the fact that the Development Bank is still out the $20,000, which was not loaned for a legitimate purpose. Finally, the evidence unquestionably supports the charge that To'oto'o rendered a false report when he furnished an incomplete list of guaranteed loans to the auditor.

III.

As indicated in our discussion in sections I and II of this opinion, we find from our review of the record that the evidence is clearly sufficient to sustain the guilty verdicts on all counts, and defendants' motions for judgment of acquittal were property denied.

Affirmed.

**********

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

**Honorable Walter M. Been, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting by designation of the Secretary of the Interior.

1. Defendants have engaged in a confusing argument here. They did not fully develop the equal protection argument but, instead, launched into a. discussion of the cited cases, arguing their application to the facts at bar. The cases really seem to apply to their motions for new trial. In either event, defendants' reliance on the equal protection argument and the cited cases is of no avail.

American Samoa Gov’t v. Taufoou,


GOVERNMENT OF AMERICAN SAMOA, Plaintiff,

v.

LATU TAUFOOU, Defendant.

High Court of America Samoa
Trial Division

CR No. 68-84

October 3, 1984

__________

A prison may not constitutionally impose compulsory religious observances, but their imposition does not justify a prisoner's escape.

Before MURPHY, Associate Justice, Presiding, OLO and TAIMANU, Associate Judges.

Counsel: For plaintiff, Andrea Smith, Assistant Attorney General
For defendant, Martin Yerick, Assistant Public Defender

BACKGROUND

On May 26 defendant, while serving a term of imprisonment for felony at the Tafuna Correctional Facility, escaped. He was captured and returned two days later. At trial defendant testified in his own defense as follows: The prison imposes a religious fast every Wednesday. This is accompanied by chapel attendance and bible study. Defendant did not want to participate. He was told to return to his cell. Later a guard informed him he was to be placed in maximum security and denied visitors and the use of a telephone. He asked to see the warden; this request was refused. Disturbed by the treatment he was receiving he then escaped. One can infer from the testimony that defendant has been a peaceful and cooperative prisoner since his conviction and sentencing in March 1980. [2ASR2d26]

DISCUSSION

Since defendant's testimony was uncontroverted and believable we accept it as true. Certain of his constitutional rights were violated. The government cannot compel its prisoners to participate in religious observances. Religious services may be made available, but prisoners cannot be punished for refusing or rewarded for joining in. See U.S. Const. amend. I; Rev. Const. of Am. Samoa, Art. I, sec. 1. Also, administrative punishment cannot be imposed without some semblance of due process. A.S.C.A. sec. 46.2503; Benton Maryland (1969) 395 U.S. 784, 23 L. Ed. 2d 707; Bernard (1984) CA No.18-84. Furthermore, the prisoners are entitled to reasonable access to their legal counsel, U.S. Const., amend. VI, in most cases the public defender.

DECISION

Having determined that defendant was given the dirty end of the stick we now ask if the defense of necessity obtained. The answer is no. If escape is a remedy for every violation of a prisoner's rights they would need a revolving door instead of a gate at the prison. (As it is, it appears to be a fairly simple task to take French leave from the prison.)

The modern doctrine of the defense of necessity was fashioned by none other than our own Chief Justice Gardner in People v. Lovercamp (1974) 43 Cal. App. 3d 823, 118 Cal. Rptr. 110.

In a scholarly review of cases beginning in 1 Hale P.C. 611 (1736), in which the court found that departure from a burning jail "excuseth the felony," he follows the somewhat convoluted trail of judicial encounters with penal mismanagement. He concludes with a humane and sensible holding that a limited defense is available under certain circumstances.* The first rule seems to require a specific threat of substantial bodily injury. This element was not present in defendant's case. While we condemn the treatment he received and hereby give the government notice that it must revise or discontinue its religious practices the defendant must stand convicted as charged.

ORDER

Under the circumstances, since the prisoner has about six more months to serve before he is eligible for parole, imposition of sentence will be suspended. Should defendant peacefully complete his sentence this court would be inclined to dismiss this case without sentencing defendant. Should he, however, fail to conduct himself as a law abiding prisoner (i.e., follow the rules) then, upon motion of the attorney general, sentence will be imposed.

**********

*Justice Gardner announces five essential elements to the defense of necessity:
1. Specific threat of death, sexual attack or substantial bodily injury;
2. No time to complain to authorities or a history of futile complaints;
3. No time or opportunity to resort to the courts;
4. No use of violence in the escape; and
5. A report to proper authority after safety has been attained.

American Samoa Gov’t v. South Pacific Island Airways,


AMERICAN SAMOA GOVERNMENT,
Plaintiff/Appellant,

v.

SOUTH PACIFIC ISLAND AIRWAYS, INC.,
Defendant/Appellee.

High Court of American Samoa
Appellate Division

AP No. 1-84

April 8, 1985

__________

The government's terminal facilities tax is in violation of Title 49 U.S.C. section l513(a), prohibiting the levying of a head charge on persons-traveling in interstate commerce.

Before GARDNER, Chief Justice, Presiding, KING* and HEEN,** Acting Associate Justices, TAUANU'U, Chief Associate Judge and TAIMANU, Associate Judge. [2ASR2d48]

Counsel: For the appellant, Carolyn Burton, Assistant Attorney General
For the appellee, Talalelei Tulafono

HEEN, J.

Plaintiff American Samoa Government (ASG) appeals from the order of the court below granting South Pacific Island Airway's (SPIA) motion for a partial summary judgment, and denying ASG's claim for $268,407.50 as terminal facility charges. We affirm.

SPIA's arguments that this court lacks appellate jurisdiction are without merit. The fact that other claims and counterclaims remained for determination does not affect the finality of the order since all those claims and counterclaims were separate and distinct. See 4, Am. Jur. 2d, Appeal & Error sec. 53 ( 1962). As for SPIA' s second argument, challenging jurisdiction, we hold that there has been substantial compliance with A.S.C.A. section 43.0802. The record shows that, although filed tardily, a motion for a new trial was filed and considered by the trial court.

ASG argues that the terminal facility charges are not a "headtax" prohibited by 49 U.S.C. section 1513(a) but are "service charges" levied against the "aircraft operators for the use of airport facilities" permitted by 49 U.S.C. section 1513(b).

The pertinent statutory provisions read as follows:

No State [or territory] shall levy or collect a tax, fee, head
charge, or other charge, directly or indirectly, on persons
traveling in air commerce or on the carriage of persons
traveling in air commerce or on the sale of air transportation
or on the gross receipts derived therefrom.

49 U.S.C. sec. 1513(a).

[N]othing in this section shall prohibit a State [or territory]
owning or operating an airport from levying or collecting
reasonable rental charges, landing fees, and other service
charges from aircraft operators for the use of airport facilities.

49 U.S.C. sec. 1513(b) We construe 49 U.S.C. section 1513(a) to prohibit any tax or charge on aircraft operators whose yardstick for measurement is directly or indirectly either the number of persons carried or traveling in air commerce or the gross receipts derived from such persons. See Aloha Airlines, Inc. v. Director of Taxation (1983) __ U.S. __, 78 L. Ed. 2d 10. In spite of ASG's argument that Rule 7-81 is a charge for the use of airport facilities within the exception of 49 U.S.C. section 1513(b), the yardstick of the rule is in fact the number of persons aboard commercial aircraft landing in American Samoa. We understand the term "other service charges from aircraft operators for the use of airport facilities" in section 1513(b) to refer to such assessments as are made directly against the aircraft operator and are similar in nature to "rental charges" and "landing fees."

ASG argues that rule 7-81 is presumptively valid because it had been approved by the Federal Aviation Administration prior to its adoption. We agree that the decisions of administrative agencies should be accorded substantial deference by reviewing courts. That deference, however, cannot overcome the fundamental principle that an administrative ruling on a point of law, such as we have here, is freely reviewable.

Affirmed. [2ASR2d49]

**********

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

**Honorable Walter M. Heen, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting by designation of the Secretary of Interior.

American Samoa Gov’t; Simoa v.


SUAFALA SIMOA aka SUAFALA WILLIAMS, Appellant,

v.

AMERICAN SAMOA GOVERNMENT, Appellee.

AP No. 16-83

High Court of American Samoa
Appellate Division

May 22, 1984

__________

Indictment by grand jury is not a fundamental right and is not required American Samoa.

Before GARDNER, Chief Justice, Presiding, KING, *Acting Associate Justice, HEEN,** Acting Associate Justice, TAUANU'U, Chief Associate Judge and OLO, Associate Judge.

Counsel: For the appellant, Martin Yerick, Assistant Public Defender
For the appellee, John Parton, Assistant Attorney General

After the denial of a request that the matter be presented to a grand jury for indictment rather than by information, defendant was convicted of murder. On appeal the appellate division remanded for a determination as to whether indictments in this territory would be impractical and anomalous. On remand the trial court handled the matter as habeas corpus and held that the fifth amendment requirement of an indictment in federal courts did not apply to the territory. It has since been stipulated that indictments by grand jury are not impractical and anomalous. The question remaining is whether the right of prosecution by indictment is a fundamental constitutional right. It is not.

Inhabitants of territories are entitled to fundamental constitutional rights. Morton (D.C. Cir. 1975) 520 F.2d 1140. This does not mean that they are entitled to constitutional rights. Craddick v. Territorial Registrar (1980) 1 A.S.R.2d 10. Indictment by grand jury is not [2ASR2d10] a fundamental right.

As far back as 1884, the Supreme Court, in Hurtado v. California, 110 U.S. 510, held that the substitution of an information for an indictment in state court was not a denial of due process of law. The court held that bot are merely preliminary proceedings which can result in not final judgment except as the consequences of a regular judicial trial conducted precisely the same regardless of which procedure was followed.

Certainly, the information procedures are more fair, with open preliminary hearings, confrontation of witnesses and representation by counsel-all of which are denied before the grand jury. The attacks on the grand jury system became so intense stateside that the supreme courts of several states have now ruled, on the basis of equal protection, that the defendants are entitled to a post indictment preliminary hearing. See e.g., Hawkins v. Superior Court (1978) 22 Cal. 3d 584, 150 Cal. Rptr. 435; People v. Duncan (Mich. 1972) 201 N.W.2d 629. Indeed, it is odd to find any defendant in a criminal case who wants to go back to the secrecy of a grand jury as against an open preliminary examination.

Be that as it may, this defendant, relying on the undisputed fact that the fifth amendment requires an indictment in federal courts demands a similar right in this territorial court. No way.

The right of presentment by grand jury is merely a procedural right and not a fundamental right. Rivera v. Government of Virgin Islands (3d Cir. 1967) 375 F.2d 988; Soto v. United States (3d Cir. 1921) 273 F. 628. In Government of Canal Zone v. Griffith (5th Cir. 1972) 459 F.2d 1036, the court held that article IV, section 3 of the Constitution empowers Congress to make all needful rules and regulations respecting a territory. This provision has been expressly held to authorize Congress to dispense with grand jury indictment in territories. Government of Virgin Islands v. Bell (3d Cir. 1970) 423 F.2d 692; People of Guam v. Inglett (9th Cir. 1969) 417 F.2d 123. It is true that the Guam, Canal Zone and Virgin Island cases refer to specific grants of authority by Congress to the territories but the principle is the same as to this unorganized territory. In this respect we cannot improve on the language of the trial court in his opinion denying the petition for writ of habeas corpus.

United States sovereignty over its territories verts Congress with the powers of both a local and national government and it can do for a territory whatever a state can do for itself or one of its political subdivisions. Cincinnati Soap Co. v. United States (1937) 301 U.S. 308; American Insurance Co. v. 356 Bales of Cotton (1828) 26 U.S. 511. Governance of a territory rests primarily with Congress and secondarily with such agencies as Congress may establish for that purpose. Snow v. United States (1873) 85 U.S. 317. The power which Congress may thus delegate, subject to subsequent revision or revocation, includes all matters which could be regulated by the laws of a state. District of Columbia v. John R. Thompson Co. (1953) 346 U.S. 100. Congress nevertheless retains all legal authority over the people of this territory and all departments of its government, and may legislate directly for the territory, abrogate its laws, void a valid act, or validate a void act. Inter-Island Steam Navigation Co. v. Territory of Hawaii (1938) 305 U.S. 306; First National Bank v. Yankton County (1879) 101 U.S. 129.

Through delegation of is authority, Congress has entrusted the Department of the Interior with governance of American Samoa. The Department of the Interior has approved the adoption of a constitution, the formation of a local government, and the promulgation of laws for American Samoa. This approval could be rescinded at any time. The Government of American Samoa, its policies and departments, in other words, exist solely [2ASR2d11] because Congress or the Department of the Interior has not yet said that they do not exist.

A.S.C.A. section 46.1220 is among the laws which have, by silence, been endorsed by Congress and the Department of the Interior. It provides for preliminary determinations of probable cause by information in all felony prosecutions. The procedure is fair and consistent with due process guarantees. It regulates prosecutions for violations of the American Samoa Code only and has no impact beyond the territory. It is clear that Congress or any authorized agent of Congress may enact any provision in regard to a territory that could otherwise have been enacted by a state.

The right of a defendant to prosecution by grand jury indictment rather than by information is not a fundamental right under the United States Constitution.

But, says the appellant, this whole question of fundamental vs. nonfundamental rights is now academic because King v. Morton (D.C. Cir. 1975) 520 F.2d 1146, imposed a new test, i.e., whether indictment by grand Jury would be impractical and anomalous. Thus, fundamental vs. non-fundamental goes out the window. We do not agree.

King was talking about the right to a jury, not a grand jury. The two are light years apart. One has to do only with a non-fundamental procedural right--an instrumentality by which a case is processed to trial. The other is clearly a fundamental right in which the jury makes the vital distinction between guilt and innocence. itself warned of the danger of a decision based on bare general principles enunciated in other cases. does stand for the principle that the only test is practicality. King said, at 1147, "In short, the question is whether in American Samoa 'circumstances are such that trial by jury would be impractical and anomalous.' Reid v. Covert, 354 U.S. at 75 (quoting the concurring opinion of Justice Harlan)(emphasis added).

The first question is whether the right is fundamental and only when it is found to be fundamental do we proceed to the question as to whether it is impractical or anomalous. Any other analysis would result in chaos. There are numerous rights which are not fundamental which may not be impractical or anomalous. It would be getting the cart before the horse to elevate these to the stature of fundamental rights just because they are not impractical or anomalous.

Judgment affirmed.

KING, Acting Associate Justice, concurring.

I concur in the result so long as the Government of American Samoa provides a judicial hearing on probable cause before a defendant may be placed on trial. I do not agree that the constitutional provision for indictment does not give the defendant more protection than a probable cause hearing. The latter procedure subjects a defendant to a public judicial proceeding which he must attend and at which testimony is adduced which could be used against him later even in the absence of the witness. However, I agree that King v. Morton does not require a different result than that reached here.

**********

*Honorable Samuel P. King, United States District Judge, District of Hawaii, sitting by designation of the Secretary of Interior.
**Honorable Walter M. Heen, Associate Justice, Intermediate Court Appeals, State of Hawaii, sitting by designation of the Secretary Interior.

Fau; Nauma v.


ATOFA'I FAU NAUMA and her Children, Plaintiffs,

v.

FAU PULEMAU, Defendant.

High Court of American Samoa
Land and Title Division

LT 35-81

September 23, 1981

__________

A matai is not bound by his predecessor's decisions regarding family members' use of communal lands.

Counsel: For the plaintiffs, Mulitauaopele L.S.
For the defendants, Lauvale Brown and Salofi Sotoa

Before MURPHY, Associate Justice, Presiding, MAMEA, Chief Associate Judge and TAGO, Associate Judge.

This matter came on for trial before the undersigned court on August 31. The action was initiated when plaintiff filed a complaint seeking a permanent injunction against defendant to restrain him from interfering with her peaceful possession and enjoyment of, and ingress and egress to, certain land upon which she and her children dwell. The defendant answered and counterclaimed seeking an order of eviction. Testimony and evidence was received by the court and the matter was taken under advisement. From the testimony and evidence the court makes the following findings of fact.

The land Mali'o, upon which the plaintiff resides, is communal land of the Fau family. The Plaintiff Atofa'i Olive claims a relationship to the Fau family through her mother. Her mother's father was a Fau title holder. She was born in 1913 and from 1925 until 1961 lived in Western Samoa. In 1961 she received permission from Fau Fa'avae, the title holder, to build a house and dwell on the property.

She has resided upon the land until the present time. Fau Fa'avae was the father of the present title holder, Defendant Fau Pulemau. It is undisputed that the defendant is a senior matai of the Fau Family. Plaintiff and five of her daughters eventually constructed five Samoan tales on the subject property at a total cost of approximately $4,500. She rendered service to Fau Fa'avae during his lifetime and has attempted to render service to the present Fau. He has rejected her service and contends that she has no blood relationship to the Fau Family. In his capacity as senior matai he now seeks to evict her and her family from the subject property.

We must in this case consider two factors in reaching a decision:
I. The powers of a matai and limitation of his power.
II. The rights of the family members.

In the past the high court has addressed these issues with varying results. In Tali v. Tupeona (1961) 4 A.S.R. 199 the court held that the matai has pule over family lands but that it must be exercised fairly and justly for the benefit of the family. The court rejected the matai's effort to evict family members. The court cited its own previous decisions as authority. See also Tuanaitau v. Paogofie (1963) 4 A.S.R. 375 and Fuga v. Olive (1962) 4 A.S.R. 283.

In addition, the power of the matai to have control over family assign pieces of family lands to assign pieces of family land to family members is recognized in such [2ASR2d28] cases as Tiumalu v. Scanlan (1961) 4 A.S.R. 194 and Masalosalo v. Imusu (1962) 4 A.S.R. 309. This court recognized that under Samoan custom. a matai of the family has jurisdiction over the land of his family. Lutu v. Fuimaono (1964) 4 A.S.R. 450. The court in the past has taken upon itself the authority to review decisions of the matai in the management of the family affairs. The result is a series of ad hoc decisions which provide no useful guidelines at all for any future management of the trust res.

It seems to us that if the action of the matai is lawful, statutorily permissible, and not calculated to destroy or impair the assets of the family with which he is entrusted, the court should not attempt to exercise supervisory control over the assignment of living space, or indeed the denial of such space, to members of the family.

Due to the series of ad hoc decisions in this area this court is; left without any consistent guidelines to direct it in future cases. In the past, the court has vacillated with decisions appearing to vary with the changes in the weather. Therefore, the court today seeks to state some guidelines for the people involved in this case but also for those in the future.

The Samoan people acquired title to their land through first occupancy coupled with claim of ownership, and this was true before the establishment of the government in 1900. This court recognizes that under Samoan custom communal family land is owned by the family and each member has a right to use a portion. Tuana'itau Paogofie (1963) 4 A.S.R. 375. Use of this portion is limited by the judgment of the matai as shown in the findings that evidence sustained that clearing of the land from bush and cultivation of the land established its ownership in the family and not the individual, who occupied with permission of the matai. Fialoa v. Meredith (1941) 2 A.S.R. 129.

We agree with the past high court decision of Fialea v. Meredith, above, which stated that permission to use family lands give to family members by a matai continues as long as the family member lives on and uses the land, subject to changes by the succeeding matai, who did not intend to bind his successors. Id. at 132-33. Additionally, the court said that an oral gift of interest in land by a matai to a family member which is relied upon by construction of a fale and plantations on land cannot be terminated by mere whim of the matai, but continues as long as the donee abides by the terms of the gift and continues to live on and use the land, or until the death of the present matai, who did not intend to bind his successors. Id. at 134-35.

As we stated above, this administration by the matai cannot be so capricious as to be unjust to the family or wasteful of the land. Therefore, within these guidelines a succeeding matai, in fairness, can change property apportionments made by the previous matai without interference from the courts.

It should be noted here that the Fono has recognized that there may arise an occasion to remove a matai. Therefore we have a provision in the statutes to remove a matai for cause and the family always has this avenue of redress available to them outside the courts. Sagapblu Tanielu (1922) 1 A.S.R. 331.

This court does recognize that under common law it has a duty to protect everyone, property holder or not, from abuses of their rights. Therefore a person in possession of land is presumed to have certain rights and this court, in equity, will protect them.

Although there are no Samoan cases on this point, some American state courts have recognized a private condemnation action, although it is very limited in its force. Blackwell Lumber Co. v. Empire Mill Co. (1916) 28 Idaho 556, 155 P. 680. [2ASR2d29] Idaho 556, 155 P. 680. A person may condemn a private easement if necessary for proper use and enjoyment of his property. However, this person must pay for the private condemnation and it must be a just compensation. City of Dothan v. Wilkes (1959) 269 Ala. 44, 114 So. 2d 237.

Therefore we hold that a matai is the administrator of family lands, that the court will not interfere if the administration is fair, that a succeeding matai cannot be bound by a previous matai's decisions, that expelled family members may be compensated for their investments/contribution to the land rather than be given the land in question.

CONCLUSION

This court states its desire to observe fa'a Samoa which may not have been done in the past but is required by the Treaty of Cession. 48 U.S.C. sec. 1661. Furthermore, we recognize the authority of the matai who has pule over the communal lands.

Therefore, it is the judgment of this court that the plaintiff be denied her prayer for a permanent injunction and the defendant be allowed to legally evict the plaintiff from the land in question. Although this may appear to be a harsh result, evicting an elderly woman from a home she has occupied for over 20 years, the court "will not get itself into the position of substituting its judgment for that of the matai in the administration of familial affairs." Falealili (1980) LT 33-79, at 2.

However, equity must be done. This woman must be compensated for the loss of her home and the other fales that she built. This court will authorize an appraisal for the property upon petition and determine the amount due the plaintiff at that time.

ORDER

It is ordered that the plaintiff's complaint for permanent injunction be denied and that the plaintiff vacate the premises upon payment to her by defendant of just compensation as determined by the court.

**********

Falelua v. Immigration Bd.,


SALA FALELUA., Appellant

v.

IMMIGRATION BOARD OF AMERICAN SAMOA., Appellee

High Court of American Samoa
Appellate Division

AP No. 024-85

March 11, 1986

__________

The statute providing that polygamists who are not permanent residents of American Samoa are excluded from admission into the Territory and are subject to deportation does not authorize the deportation of an alien who was not a polygamist at the time he entered the Territory.

Before GARDNER, Chief Justice, Presiding, KING,* Acting Associate Justice, HEEN,** Acting Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For the Appellants, John Ward
For the Appellee, Donald Greismann, Assistant Attorney General

Petitioner was served with an O.S.C. why he should not be deported pursuant to:

A.S.C.A. section 41.0615(11) - Polygamists are excludable and subject to deportation.

A.S.C.A. Section 41.0615(10) - Same for person convicted of crime involving moral turpitude.

A.S.C.A. Section 41.0615(22) - Same for anyone violating provision of immigration law or regulation of broad.

A.S.C.A. section 41.0616(1) - Deportable alien is one who was excludable at time of entry.

In essence he was charged with being a polygamist and making false statements to A.S.G. as to his marriage to two women. (This latter charge does not appear to be a ground for deportation and has been abandoned by the attorney general.)

As usual the transcript of proceedings before the board is incomprehensible but the parties seem to agree that the following transpired:

Petitioner is a Western Samoan. When he came to American Samoa is not clear. In 1978 he married Koreti. In 1984 he married Fautino without divorcing Koreti. He stated in an[2ASR2d99] affidavit for his marriage license for Fautino that he was not presently married and "I was never married."

He then went to attorney Ybarra and secured a divorce from Fautino then divorced Koreti, then re-married Fautino. (Petitioner's present counsel charitably observes that the methods selected by petitioner's former counsel to correct petitioner's marital status appear "less than acceptable".)

The Board's position is clear. It says, "The only basis for the immigration board's decision was that Sala had two wives at the same time in violation of A.S.C.A. section 41.0615 (11). Sala is deportable. He was a polygamist from September 19, 1984 until November 29, 1984."

The trouble with the board's position is that it has not read sections 41.0615 and 41.0616 very carefully. Whether or not petitioner committed polygamy when he married a woman without securing a divorce from a prior wife becomes somewhat academic.

Section 41.0615 is entitled "Excludable persons" and says "Except as otherwise provided in this title, the following classes of persons, not permanent residents, are excluded from admission into American Samoa and are subject to deportation." Included in the list are polygamists. (Subsection 11.)

Section 41.0616 entitled "General classes of deportable aliens" and says "Any aliens in American Samoa...shall, upon the order of the attorney general be deported, who: (1) At the time of entry was within one or more of the classes of persons excludable by the law existing at the time of such entry."

Clearly at the time of entry, petitioner was not a polygamist nor a bigamist, whatever category he earned by his subsequent marital entanglements. The board constru9s the language "and are subject to deportation" in section 41.0615 to mean that any time an alien attains a forbidden status under that section he is deportable. If an alien acquires a contagious disease--the flu or a common cold, both highly contagious ---is he deportable? Certainly, under that section he can be excluded, but deported if he becomes ill after arrival?

We doubt it. What about being a stowaway? Grounds for deportation if he stows away after entry?

Section 41.0615 applies to aliens being admitted to the Territory. Section 41.0011 pertains to actions on the part of aliens after entry which are a basis for deportation, i.e. commission of crime, for becoming a narcotic addict, a prostitute or pimp, possession of a weapon, etc.

The distinction between the two sections is dramatized by the handling of those with mental disorders. An insane person is excludable per se. (41.0615 (2).) After entry there is an [2ASR2d100] entirely new procedure for such unfortunates. If one becomes insane and is institutionalized at public expense, he becomes deportable-unless he can show the defect did not exist prior to entry, (41.0616(3).) The handling of crimes in the two sections is informative. Under 41.0615 one is excludable if one admits committing a crime involving moral turpitude. Under 41.0616 one may be deported only if convicted of such a crime and sentenced to an institution.

There is a valid legislative distinction between excludable aliens and aliens who may be deported after entry. The words "and are subject to deportation" do not convert all the excludable conditions which may arise after entry of 41.0615 into deportable classes under 41.0616. All those under 41.0615 may be denied admission but if they get in may be deported if the status existed at the time of entry.

As petitioner says, section 41.0615 is prophylactic, section 41.0616 is remedial.

Under the facts in this case and the applicable law, petitioner may not be deported. He was not a polygamist when he entered American Samoa.

Order of deportation set aside.

**********

*Honorable Samuel P. King, United States District Judge, District of Hawaii, sitting pro tem by order of Chief Justice Gardner.

**Honorable Walter M. Heen, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting pro tem by order of Chief Justice Gardner.

Fa'atupu v. Malepeai,


MELE I. FA'ATUPU, Appellant

v.

MAUSA A. MALEPEAI and FAATUI FAOA, Appellees

High Court of American Samoa
Appellate Division

AP No. 007-84

April 5, 1985

__________

When the ownership but not the boundary of land is in dispute no survey is required.

In a case arising under the issue of the validity of a separation agreement involving communal land the court is free to look beyond that issue to the ultimate question of the ownership of the land.

A party that requests joinder in an action cannot later object to the joinder.

A.S.C.A. section 43.0302, requiring the filing of a certificate from the Office of Samoan Affairs affirming that attempts to resolve controversies over communal land or matai titles have been made and that the controversy could not be resolved, prior to the commencement of any action in the Land & Titles division, can be applied with some flexibility.

Before GARDNER, Chief Justice, Presiding, KING*, Acting Associate Justice, BEEN**, Acting Associate Justice, TAIMANU, Associate Judge, APE POUTOA, Associate Judge.

Counsel: For the Appellant, Moega Lutu
For the Appellee, Albert Mailo

This matter reached the court by way of referral by the Office of Samoan Affairs. See Land and Title Rules of Court, rule 3.

Faatui and Faatuai Faoa, members of the Toilolo family, wanted to rebuild a house. Mausa Malepeai, Faatuai's sister, who had taken care of the house and its land since 1959, applied with them for a separation agreement. Faatupu, a member of the Lauofo family, objected. At the trial the parties agreed that the land involved is communal property and Malepeai does not have the right to sign a separation agreement

The parties disagree, however, as to which family owns the land, Lauofo or Toilolo. The Lauofo family calls the land "Uutafeuua" and the Toilolo family calls it "Pulemaava." [2ASR2d59]

ISSUES

Lauofo argues two errors on appeal:

1. That the court's decision that the land belongs to Toilolo was made without a surveyor other corroborating evidence; and

2. That the court had no jurisdiction to decide the ownership of the land because the matais were not joined as parties and the only issue before the court was whether Malepeai had the authority to sign the separation agreement.

DISCUSSION

Lauofo cites no authority that a survey is required before a court may decide the ownership of land. Since this case did not involve a boundary dispute there was no need for a survey.

It is unclear what Lauofo means in saying there was no corroborating evidence of Toilolo's ownership of the land. In addition to the testimony of Chief Toilolo, there was testimony by Teuila Alai Palelei, a 79-year-old uncle of Chief Toilolo; Pioimalo Toilolo, a 72-year-old chief in the Toilolo family; and Mausa Malepeai. All of them testified that the land belongs to the Toilolo family. Lauofo also called witnesses, who testified that the land belongs to the Lauofo family. It is not up to this court to weigh the evidence and decide which set of facts to accept. Lauofo points to no legal inadequacy of evidence that would justify a reversal.

The second issue raised by Lauofo is that the matter referred by the Office of Samoan Affairs was the validity of the separation agreement, and the court therefore had no jurisdiction to hear the issue of the ownership of the land. The parties in the dispute over the separation agreement were Malepeai and the Faoas against Faatupu. Lauofo argues that the matais were not proper parties.

It was Lauofo's counsel himself who asked that Lauofo be joined as a defendant. He cannot now object to that joinder nor does it make any sense to say that Toilolo, the putative owner of the land, is not a proper party.

The case that was referred by the Office of Samoan Affairs was titled "Separation Agreement land 'Pulemaava' in Malaeloa .." Land and Titles Rules, rule 2(a), says that "actions to separate a building or structure from communal land" are commenced by filing a petition with the Territorial Registrar.

Since all parties readily conceded that there was no issue concerning separation, it is surprising that the Office of Samoan Affairs, in following the procedures required by A.S.C.A. section [2ASR2d60]

43.0302, did not resolve the issue brought before it. The purpose of the statutory procedure is to resolve informally those issues that lend themselves to simple resolution. This one surely did, and the referral of a non-issue to the court can only cast doubt on whether two attempts to settle the controversy, as required by section 43.0302(a)(1), were ever made.

Because of the failure of the dispute resolution process the court faced the dilemma of being presented with the wrong issue. But the bottom line was the same. True, Malepeai had no right to sign the separation agreement, but that left the Faoas with the problem of who did. This was the problem the court addressed.

There can be some flexibility in the application of A.S.C.A. section 43.0302. In Maria & Telesia v. Tuli (1978) AP No.5-76, the defendants contended that the trial court lacked jurisdiction because no certificate as required by 11 A.S.C. section 1002 (the present section 43.0302) was filed. In place of the certificate the court accepted a letter which failed to comply with statutory requirements, saying that "it constituted sufficient compliance."

The same flexibility was justified here. Even though this case arose under the issue of the validity of the separation agreement, the court was free to look beyond that issue to the ultimate question of the ownership of the land.

After discussing the completely unsatisfactory way this case reached the high court, the trial court then addressed the real issue presented by the pre-trial memoranda. While noting that the original nominal parties "don't have much to do with the case at all" the court then proceeded to try the case on the issues presented by the pre-trial memoranda. It is a little late now for one of the parties to complain of the issues presented. This should have been done at trial.

As counsel for Lauofo, in a trial brief submitted to the court, defined the case, it is "a dispute over the ownership of land 'Uutafeuua' in the village of Malaeloa." That is the dispute the court resolved.

The court even recessed the hearing for a day to give the parties an opportunity to settle the issue on their own. There would have been no point to the court's refusing to hear the case after the parties returned, presumably unable to resolve the matter themselves.

The judgment is affirmed.

**********

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

**Honorable Walter M. Heen, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting by designation of the Secretary of the Interior.

Fa'alevao; Tumui v.


FALETUSI TUMUI, et al., Petitioners,

v.

AVIATA F. FA'ALEVAO, Attorney General,
et al., Respondents.

High Court of American Samoa
Trial Division

CA No. 116-83

October 20, 1983

__________

Actual custody is not necessary for habeas corpus relief.

Aliens may not be arrested without warrants unless the circumstances are extraordinary.

Before MURPHY, Associate Justice, Presiding, TAUANU'U, Chief Associate Judge and TAIMANU, Associate Judge.

Counsel: For the respondents Aviata Fa'alevao, Attorney General
For the petitioners, Watson & Reardon by Steven Watson

This matter comes before the court pursuant to a writ of habeas corpus. The court held an evidentiary hearing at which both petitioners and respondents were given an opportunity to offer testimony and evidence. Both sides having rested the court took the matter under advisement.

FACTS

The facts of the case are fairly straightforward and more or less undisputed. Following what appears to be a standard operating procedure, several immigration officers descended upon the villages of Pago Pago and Aua on Wednesday, September 28. The idea was to pick up individuals who appeared to be aliens and who were suspected of being in the territory illegally. (1)

In any event, 10 or 12 Tongans were picked up, i.e., arrested, and taken to the immigration office. There they were identified and warrants issued for their arrests. They were not informed of any rights they might have, but were told that they could depart the territory voluntarily (The next boat for Tonga was leaving Saturday morning.) or be held for deportation hearings. Most opted to "voluntarily" board the boat. Nevertheless they appear to have been held in jail until the boat was ready to sail to make sure no one changed his mind.

Caught up in this particular dragnet were two extraordinary cases which probably brought the matter before the court, unlike the previous undertakings. One of the Tongans, Amini Taivai, had previously engaged a lawyer and was suing the government. The court had entered an order temporarily restraining his deportation. He was able to call his lawyer. When the lawyer appeared and explained the situation the immigration officers backed down and released Amini. Another individual, Tofua Ioane, was arrested and [2ASR2d34] despite his protest that he was a United States citizen he was incarcerated pending voluntary departure or deportation. Unfortunately, Tofua telling the truth and in fact is a naturalized U.S. citizen.

The next day, Thursday, he was allowed to make a phone call from jail. He called a friend who took Tofua's proof of citizenship to the Immigration Office. The officers were convinced and issued an order for his release. The prison doors swung open--but slowly. No one at Immigration had a car so the release order did not reach the prison until the next afternoon. At that time Tofua was released, having served two days' imprisonment for the crime of being of Tongan ancestry.

STATEMENT OF THE CASE

The relief petitioners seek is set forth in their points and authorities, page 4: "If the court finds that they were subjected to an unlawful detention the court can fashion a remedy which should prevent such an incident in the future. "

CONCLUSION AND ORDER

The fact that the attorney general, cum chairman of the Immigration Board, has frog-marched most of the petitioners off island does not necessarily render their petition moot. Under Hensely v. Municipal Court (1973) 411 U.S. 345, 36 L. Ed. 2d 294, actual custody is not required for federal habeas relief if the petitioner is subject to restraints not shared by the public generally. In the case before us the two unnamed petitioners appear to be under some threat of incarceration or coerced departure from the territory. The named petitioners are probably under estraint from attempted return.

We strongly disapprove of the attorney general's sharp practice pushing the petitioners aboard a ship knowing that a habeas petition was pending. They were entitled to their day in court, regardless of whether or not they were ultimately entitled to remain in the territory. To slyly contend that their departure was voluntary is to completely ignore reality. Similar conduct in the future should be met with sanctions.

As to the original arrests, this procedure also merits disapproval. A.S.C.A. section 41.0533, covering arrests without a warrant, provides as follows:

(a) Any immigration officer may arrest without a warrant any
alien who in his presence or view is entering or attempting to enter
American Samoa in violation of any law or regulation made in
pursuance of law regulating the admission, exlusion or expulsion of
aliens, and may arrest any alien in American Samoa if he has reason
to believe that the alien is in American Samoa in violation of the law
or a regulation and is likely to escape before a warrant can be
obtained for his arrest. [Emphasis added.]
(b) The person making the arrest without a warrant in accordance
with this section shall immediately thereafter make an affidavit and
apply to the Attorney General for an order of arrest and commitment,
until the board's next meeting, of the person under arrest.

Warrantless arrests should be the exception, not the rule. [2ASR2d35]

Aliens are not entirely without rights. For example, upon arrest they are entitled to bail. A.S.C.A. section 41.0630. They should be meaningfully informed of their rights.

A far better procedure to meet the problem of aliens unlawfully in the territory would be to follow the lead of other government departments and embrace the computer age. The traffic court is but one example of a brilliant use of a relatively simple computer system. The immigration board could computerize all aliens (and all residents for that matter). When the alien's period of stay passes, the computer would automatically furnish that information and a warrant would issue. Then after the warrant issued the alien could be located and appropriate action taken.

In addition to preventing wrongful arrests the computer would, for the first time, allow the immigration board to have an accurate census of who is living here and each person's status. In other cases before the court we have seen examples of entire families living here for years. The immigration board has been oblivious to their existence until they apply for permanent status--which they are entitled to after ten years' residency. Hopefully these suggestions if followed will reduce future litigation and assist the board in an admittedly difficult task.

However, these are suggestions, not orders. The case before us does not appear to be the proper vehicle for a judicial overhaul of the modus operandi of the immigration board.

Therefore, the petition is granted as to Amini Taivai and Tofua loane. The immigration board is to take no further action against Amini pending outcome of his litigation and is permapently enjoined from such action as to Tofua Ioane.

As to all other petitioners the matter is dismissed.

**********

1. It is common knowledge that a large percentage (perhaps as much as 50%) of the local population are aliens: mostly Western Samoans, Tongans or Orientals. Most appear to enter legally under some sort of temporary permit and then overstay.

Fa'alevao; O v.


YONG KYO O, Petitioner,

v.

AVIATA FA'ALEVAO, CHAIRMAN

IMMIGRATION BOARD OF AMERICAN SAMOA
and ATTORNEY GENERAL OF AMERICAN SAMOA,
and IMMIGRATION BOARD OF AMERICAN SAMOA,
Respondents,

High Court of American Samoa
Appellate Division

AP No. 23-83

February 23, 1984

__________

There are no exceptions to the statute permitting a person who has been resident of American Samoa for ten years to become a permanent resident.

The attorney general's service on the immigration board denies an applicant due process of law.

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

Counsel: For the petitioner, Roy J.D. Hall, Jr.
For the respondents, Attorney General

GARDNER, C.J.

Winston Churchill once said that golf was a game in which one attempted to put a small ball into a small hole using "woefully inadequate tools." In the immigration law of this territory the Fono has given the attorney general a woefully inadequate tool to carry out his duties.

THE FACTS

Mr. 0, a citizen of Korea, has been in this territory over ten years on successive two-year employment contracts, in each of which he agreed to return to Korea upon completion of that contract. In each case the contract was renegotiated prior to its termination. He has applied for permanent resident status and been rejected. This appeal followed.

THE PROBLEM

Of all the departments of the American Samoa Government, that branch of the attorney general's office devoted to enforcement of the immigration laws is at once the most important and the most controversial. As we have pointed out in previous decisions, this is a small territory. Its economy, its ecology and its environment are fragile. Space and resources are limited; obviously its capacity to absorb population is limited. Yet its population is geometrically expanding. In 1908 the population was about 6,800. In 1959 it was about 20,000. It is now estimated at approximately 33,000. Statistical Tables, Atlas of American Samoa 1981. It seems manifest that a high birth rate and a constant influx of immigrants from Western Samoa are the principal cause of the expansion. The growth would be more spectacular except for a constant departure of young American Samoans seeking employment opportunities in the United States. [2ASR2d18]

American Samoans are, of course, Samoan Polynesians. A noticeable percentage have American, European (chiefly German), Chinese and Japanese ancestors.

Western Samoa is 83 miles away. It has a population of nearly 200,000. It is a much less economically endowed country. A number of Western Samoans have immigrated to New Zealand, the United States and, as previously stated, to American Samoa. American and Western Samoans share a common cultural and racial background. Many families are interrelated. It is clear that the major immigration pressure will continue to come from Western Samoans. (This will be particularly true if the Simpson-Mazzoli or some similar act of Congress naturalizes the Western Samoans in the United States.) People immigrate here from the United States mainland. It seems highly questionable that this territory could exclude any United States citizen, especially one of Samoan ancestry. In addition to the above there are Tongans, Koreans and others living and working in the territory as well as a handful of American expatriates.

While no one seems to know with any degree of certainty it seems that native born American Samoans may already be a minority group in their own territory. It is generally agreed that of a total population of 33,000, only 30,000 are Samoans. of these it is said that one half are Western Samoans. The rest are, as indicated. a mixed bag of Asians, Tongans and whites.

It is the task of the attorney general to control this unwieldy mass and to address the problems that lay ahead, using as we have said the woefully inadequate and constitutionally suspect (See Ki v. Immigration Board (1983) 1 A.S.R.2d 99.) immigration law. The question of who qualifies as a permanent resident then becomes of vital importance.

THE LAW

That phase of the immigration law with which we are here concerned is A.S.C.A. section 41.0603(2), which provides that one who has continuously resided in American Samoa for ten years may apply for permanent resident status. Petitioner contends that since he has continuously resided in American Samoa for ten years he is entitled to permanent resident status. Under the statute as written he is. We doubt that was the legislative intent but as Justice Holmes was wont to say, it isn't what the legislature intended that counts, it is what it said.

Commonly understood, reside means to live, dwell, sojourn, lodge or stay someplace. Webster's Third International Dictionary. Petitioner has continuously resided in the territory for ten years. Under this law written he qualifies for permanent resident status.

But how about someone who enters the territory illegally and hides out from the authorities for ten years or spends his ten years engaged in a life of crime. Can he qualify for permanent resident status? Unfortunately, under the law as now written, he can. To avoid this, the attorney general has, by executive fiat, unilaterally amended the law to provide that one must be in the territory legally to attain permanent resident status. This is a worthwhile and commendable qualification but not one appearing in the law as written.

By a stroke of the legislative pen the Fono can amend this law, end the attorney general's dilemma and give him a viable weapon to use in evaluating and controlling those seeking permanent resident status. The United States Immigration Law, 8 U.S.C. sec. 1254, provides in substance that the attorney general may adjust the status of an otherwise deportable alien who has (1) [2ASR2d19] been physically present in the United States for a continuous period of not less than seven years, (2) is a person of good moral character and (3) is a person whose deportation would cause a hardship.

The use of the phrase "continuous physical presence" is not a legislative accident. The prior law used the phrase "continuous residence." Problems arising from the use of the word "residence" had resulted in "lax practices" and "abuses." Immigration & Naturalization Service v. Phinpathya (1984) __ U.S. __, 52 U.S.L.W. 4027. This was because the word "residence" has often become, in contemplation of law, a word of art, synonymous with the word "domicile," which has a mixed connotation of fact and intent. Thus, one can physically reside in one place but keep his "residence'. or "domicile" in another. Military service is the most common example. "Continuous physical presence" brooks no hair-splitting ambiguity.

To avoid the plain language of this statute (A.S.C.A. sec. 41.0603(2) the attorney general now contends that Mr. O cannot gain permanent resident status because of A.S.C.A. section 41.0605, which provides that when one loses the status on which entry or stay was based (in this case Mr. O's employment status), he is deemed a person entering from that date.

There are four factors that militate against that contention. First, Mr. O's employment contracts were renegotiated before termination. Second, this smacks of intentional discriminatory enforcement of the law since at least one other alien received permanent resident status under identical successive contract conditions. Third, just before these proceedings the attorney general signed a document entitled, "Certificate of eligibility for permanent resident status" in which he stated that Mr. O had reside continuously in the territory for more than ten years and "is eligible under the law for permanent residency status." Fourth, this seems to be a last gasp effort to avoid the inevitable. Nowhere in the immigration board decision or in the appellees brief was section 41.0605 mentioned. It first surfaced at the evidentiary hearing.

Reliance cannot be had on A.S.C.A section 41.0605.

It appears to us that a wholesale revision of the immigration law is in order. The Fono is going to have to make some tough decisions. Should they :impose a quota on aliens and if so, on what aliens? Should there even be a continuous physical presence provision? Why? What is to be done about Western Samoans who by reason of the extended family concept are actually a part of American Samoan families? Are Western Samoans to be treated in a different manner than other aliens? Are there inequities and abuses in the present sponsorship program? What is the effect of the American Samoan citizen concept as contained :in the proposed revisions to the American Samoan Constitution? What is the status of non-Polynesians, or part Polynesians, who are United States citizens? And, in a broad sense, what are immigration problems of the territory, their size and complexity? The whole field cries for Fono action. We have made this suggestion before--all to no avail. See Ki v. Immigration Board (1983) 1 A.S.R.2d 99.

THE ATTORNEY GENERAL

The present statutory scheme places the attorney general in an indefensible position--policeman, prosecutor and judge.

The United States Supreme Court, recognizing the complexity and prevalence of administrative tribunals exercising quasi-judicial powers, has not seen fit to rule that in all cases the investigating agency may not also be the judging agency. Nevertheless, in Withrow v. Larkin (1975) 421 U.S. 35, 43 L. Ed. 2d 712, the Court warned against situations in which the risk of [2ASR2d20] unfairness is "Intolerably high."

It is an integral part of the American judicial system of justice that an impartial magistrate or judge be interposed between a zealous police officer or prosecutor and the individual. Failure to do so constitutes a denial of due process of law guaranteed by both the United States Constitution and the Constitution of American Samoa. Further, as the Winthrow Court said at page 15, "Not only is a biased decisionmaker constitutionally unacceptable but 'our system of law has always endeavored to prevent even the probability of unfairness."' See also Gibson v. BerryHill (1973) 411 U.S. 564, 36 L. Ed. 2d 488; Village of Monroeville (1972) 409 U.S. 57, 34 L. Ed. 2d 267; Tumey v. Ohio (1927) 273 U.S. 510.

As constituted at present, does the position of the attorney general as chairman of the immigration board raise the risk of unfairness to an "intolerably high" level? We hold it does. In the average case the attorney general arrests the alien, prosecutes him and judges him. Even when, as in this case, there is no charge of an immigration violation and the board sits merely to determine status, .the same aura of lack of impartiality exists.

While we cannot change the law, we must, consistent with our constitutional mandate, insist that due process be observed. Thus, we hold that in this case Mr. O's constitutional right to due process was violated when the attorney general sat as a member of the immigration board. We suggest that hereafter, pending Fono action, he disqualify himself from sitting on that board.

Again, the federal practice is informative. Under 8 U.S.C. section 1103(a) the responsibility for enforcement of immigration and naturalization laws is vested in the attorney general. Nevertheless. with a realization that the attorney general will be prosecuting those charged with violations of those laws the office of the Commissioner of Immigration and Naturalization (a presidential appointee) is established (8 U.S.C. sec.1103(b). That commissioner has delegated special hearing officers to hear these matters. These rulings are subject to review by the Board of Immigration Appeals (8 C.F.R. secs. 282.8 & 242.21). Thus, while the attorney general hag over-all responsibility for enforcement of the immigration and naturalization laws, others handle the judging function.

The Fono has removed the attorney general from the tax exemption board in a recent amendment to A.S.C.A. section 11.1603, advising in the reviser's comments that the attorney general's membership on boards and commissions raised potential conflicts of interest, particularly when the board or commission is conducting adjudicatory hearings and the government is represented by legal counsel. "Further, it curtails his role as legal advisor to these boards and commissions. Accordingly, this legislation is intended to eliminate these problems in the future."

The Fono should do the same with the immigration board.

MR. O

At long last we return to Mr. O. While in complete sympathy with the attorney general's efforts to apply a sensible interpretation to this unworkable law, we must rule that anyone who has resided continuously in the territory for ten years is entitled to permanent resident status. Mr. O qualifies. Further, Mr. O was denied due process of law because the attorney general sat on the immigration board. Therefore, we order the immigration board to issue him a certificate of permanent resident status.

**********

Evening Star, Inc. v. Sonoma Mission,


EVENING STAR, INC. and MULITAUAOPELE IVI,
Appellants,

v.

SONOMA MISSION, Appellee.

High Court of American Samoa
Appellate Division

AP No. 20-84

May 22, 1984

__________

A judgment of a court of the United States is entitled to full faith and credit in American Samoa.

Before GARDNER, Chief Justice, Presiding, KING,* Acting Associate Justice, HEEN,** Acting Associate Justice, OLO, Associate Judge and APE, Associate Judge.

Counsel: For the appellant, Mulitauaopele Ivi
For the appellee, Steven Watson

FACTS

Appellee sued appellant and others in the United States District Court, Northern District of California, for money damages arising out of a business transaction. Appellant, through counsel, moved to dismiss for lack of personal jurisdiction. This motion was denied and appellant made a personal appearance. Extensive procedures followed and the matter was eventually set for trial. Three days before trial counsel for appellant moyed to withdraw for lack of cooperation by his client and non-payment of fees. The motion was granted and an accompanying motion for continuance was denied. Appellant failed to appear for trial and a substantial money judgment was obtained against him. The judgment was then filed as a foreign judgment in this court. Appellant attacked the foreign judgment by a rule 60(b) motion which was denied. This appeal followed.

DISCUSSION

The judgment of the United States District Court is valid on its It has been properly certified and attested. It is entitled to full and credit under article IV, section 1, United States Constitution. constitutional provision is supplemented by 28 U.S.C. section 1738 states:

face. faith This which

Such Acts, records and judicial proceedings or copies thereof
shall have the same full faith and credit in every court within the
United States and its Territories and Possessions as they have
by law or-usage-in the courts of such State, Territory or Possession
from which they taken.

(Emphasis added.)

The law of this territory acknowledges and accepts, as indeed it must, the principle of full faith and credit. A.S.C.A. section 43.1701, et seq., incorporates the Uniform Enforcement of Foreign Judgments Act and defines a "foreign judgment" as "any judgment, decree or order of a court of the United States or of any other court which is entitled to full faith and credit in this territory." A.S.C.A. sec. 43.1702. (Emphasis added.)

In spite of this plain language, appellant insists that this territory [2ASR2d13] is a "foreign state." This is nonsense. This is a territory of the United States of American and in no way a foreign state. Appellant then invites our attention to the California Code of Civil Procedure which now distinguishes between "sister state money judgments" (section 1713 et seq.) and "foreign money judgments" (section 1713, et seq.). Needless to say, the "foreign" as used in the California law means foreign in its usual layman context, i.e., a foreign nation--Bolivia or Japan. In the California Code "foreign state" is defined as any governmental unit than the United States, or any state, district, commonwealth, territory, insular possession thereof or the Panama Canal Zone, or the Trust Territory of the Pacific Islands.

We terminate this portion of the discussion repeating the obvious: American Samoa is a Territory of the United States of America, not a foreign nation, and a judgment of a court of the United States is entitled to full faith and credit in this territory. We cannot remove the territory of American Samoa from the United States and make it a foreign jurisdiction in order that appellant may retry his case in this court.

Appellant next tries, as he has at every stage of these proceedings, to go back of that judgment and argue that case on its merits. This he cannot do.

The Supreme Court of the United States has spoken quite directly on the subject.

[I]f the judgment on its face appears to be a "record of a court
of general jurisdiction, such jurisdiction over the cause and the
parties is to be presumed unless disproved by extrinsic evidence,
or by the record itself." [Citation.] In such case the full faith
and credit clause of the Constitution precludes any inquiry
into the merits of the cause of action, the logic or consistency
of the decision, or the validity of the legal principles on which
the judgment is based.

Milliken (1940) 311 U.S. 457, 462.

Appellant relies on the last sentence of A.S.C.A. section 43.1703 which reads "a [foreign] judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating or staying as a judgment of the High Court of American Samoa and may be enforced or satisfied in like manner." From this appellant contends he can go back and relitigate the case out of which this judgment arose. No way.

To read that sentence in the manner suggested would be to read into it a meaning inconsistent with the Constitution of the United States. We obviously decline to interpret that provision in such a way as to render it unconstitutional.

This provision is a common one in statutes pertaining to the enforcement of foreign judgments. It means that the foreign judgment may be attacked on the basis of jurisdiction in the same manner as any judgment of this court. Common defenses to the enforcement of a foreign judgment include lack of jurisdiction, lack of finality, judgment rendered in excess of jurisdiction, judgments not enforceable in the state of rendition, judgment already paid, suit on the judgment barred by the statute of limitations in the state where enforcement is sought. See 5 B. Witkin, California Procedure, Enforcement of Judgments secs. 194-195, at 3549-50. See also Durfee v. Duke (1963) 375 U.S. 106; New York v. Halvey (1947) 330 U.S. 610; Williams v. Carolina (1945) 325 U.S. 226; Riley v. New York Trust Co. (1942) 315 U.S. 343.

Also an attack may be made on a foreign judgment if that judgment was [2ASR2d14] obtained by extrinsic fraud. See 55 A.L.R.2d 674. Again this is an attack on jurisdiction. That type of fraud means some intentional act or conduct by which the prevailing party has prevented the unsuccessful party from having a fair submission of the controversy. Farley v. Davis (Wash. 1941) 116 P.2d 263, 268. This, of course, has nothing to do with intrinsic fraud, which pertains to issues involved in the original action, or to acts constituting fraud that were or could have been litigated therein.

However, there is nothing in this voluminous file that even hints at extrinsic fraud. Appellant insists he has been the victim of a great injustice in the district court in California. However, none of this goes to the jurisdiction of that court to render this judgment. Appellant simply has to go back to California, re-open the case and try it on its merits. As the trial court said, "unfortunately for the defendant we must hold that his remedies lie in the forum in which the judgment was rendered." We agree. The most recent guideline on this issue is found in Thomas v. Washington Gas Light Co. (1980) 448 U.S. 261, 270. A divided United States Supreme Court set forth the basic application of the law. It stated:

It has long been the law that "the judgment of a state court
should have the same credit, validity, and effect in every other
court in the United States, which it had in the state where it
was pronounced." [Citations] This rule, if not compelled by
the Full Faith and Credit Clause itself... is surely required by
28 USC sec. 1738 Thus, in effect, ..a State is permitted to
determine the extraterritorial effect of its judgments; but it may
only do so jndirect1y, by prescribing the effect of its judgments
within the State.

Id at 270. As to the power to determine the effect of the forum's own law, the Court stated:

To vest the power of determining the extraterritorial effect of
a State's own laws and judgments in the State itself risks the
very kind of parochial entrenchment on the interests of other
States that it was the purpose of the Full Faith and Credit
Clause and other provisions of Art IV of the Constitution to
prevent.

Id. at 272. The rare exceptions to the application of the full faith and credit clause arise only when there is a violation of some fundamental state public policy. As noted in Magnolia Petroleum v. Hunt (1943) 320 U.S. 430, there is no precedent for an exception in the case of a money judgment in a civil suit. The permissible scope of inquiry in a sister state is limited to the ascertainment of jurisdiction over the person and subject matter. Durfee v. Duke (1963) 375 U.S. 106.

Judgment affirmed.

**********

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

**Honorable Walter M. Heen, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting by designation of the Secretary of Interior.


Craddick; Tiumalu v.


JOHN TIUMALU and ULUTOLU TIUMALU,
Defendants/Appellants,

v.

DOUGLAS O. CRADDICK,
Plaintiff/Appellee.

High Court of American Samoa
Appellate Division

AP No. 4-84

April 19, 1985

_________

A non-matai family member cannot defend against a claim of ownership of land based on the ground that it is the family's communal land.

Before GARDNER, Chief Justice, Presiding, KING* and HEEN,** Acting Associate Justices. TAUANU'U, Chief Associate Judge and LUALEMAGA, Associate Judge.

Counsel: For the appellants, Sagapolutele & Ward by Aitofele Sagapolutele
For the appellees, Douglas O. Craddick and William Reardon [2ASR2d51]

BEEN, J.

Defendants John and Ulutolu Tiumalu appeal from the judgment below granting injunctive relief to Plaintiff Douglas O. Craddick.

The action had its genesis in a complaint for temporary and permanent injunction against Vaivao M. Fruean (Vaivao) and members of the Vaivao family. Vaivao is the matai of the Vaivao family. The complaint requested (1) that Vaivao and members of his family be enjoined from continuing to construct a building on a portion of the land Lotopesega in the village of Pago Pago; (2) that defendants be required to remove that portion of he building which is on the land in question; (3) that defendants be permanently enjoined from further trespassing and building on the land. Craddick claims ownership of the land in fee simple under a quitclaim deed executed in California. Vaivao's motion to dismiss was denied and an amended complaint was filed joining the Tiumalus as defendants. The trial court permanently enjoined all defendants from trespassing on Craddick's land and ordered them to remove the construction within thirty days. Vaivao took no active part in the defense of this case and is not a party to this appeal.

The dispositive question is whether the Tiumalus can defend against Craddick's claim of ownership on the ground that the land is the communal or aiga land of the Vaivao family. We answer no and affirm.

The matter of "standing" is normally discussed in regard to an individual's right to bring legal action, although it is also related to a party's right to appeal. We see no reason, however, why that concept should not apply to the Tiumalus' defense. We hold that the unique relationship between the matai and the aiga land, together with A.S.C.A. section 43.1309, deprive the Tiumalus of the defense they seek to make. If the disputed land is aiga land of the Vaivao family, and Tiumalu does not claim otherwise, then pule over it is vested in Vaivao.

By tradition the matai is vested with pule over the aiga land for the general welfare of the aiga members. See Poumele v. Ma'ae, 1 A.S.R.2d 5 (1980). In Poumele, however, the high court held that a matai could delegate certain of his functions to be performed by family members, including in that case, authority to survey portions of the aiga land and to bring an action to try its title.

In 1981, presumably in response to Associate Justice Murphy's stirring and scholarly dissent in Poumele, the Fono enacted legislation stating that the sa'o is the only person authorized to bring a suit for injunction in a dispute over communal or aiga land. A.S.C.A. sec. 43.1309.

It follows from the traditional authority of the matai over the aiga land and from A.S.C.A. section 43.1309 that, in any case in which title to land is disputed, a claim that the land is aiga land may only be made, whether offensively or defensively, by the sa'o of the family in whose name the claim is made.

As stated above, the Tiumalus' defense is that the land in question is aiga land of the Vaivao family. That claim may be made only by Vaivao. Vaivao has not interposed that defense and has not appealed from the judgment below. Tiumalu has not presented this court with any other valid basis for overturning the judgment. Affirmed.

**********

*Honorable Samuel P. King, United States District Judge, District of Hawaii, sitting by designation of the Secretary of Interior.
**Honorable Walter M. Been, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting by designation of the Secretary of Interior.

Craddick v. Olotoa,


DOUGLAS O. CRADDICK, Plaintiff/counterdefendant,

v.

OVERLAND OLOTOA MANUMA & LEAO'A V.
MANUMA, Defendants/counterclaimants,

v.

MARTIN ANDERSON, Intervenor.

LT 4-84
LT 30-84

High Court of American Samoa
Land and Title Division

October 10, 1984

__________

Common law property rules are applicable to freehold land.

Counsel: Douglas Craddick, pro se
For the defendant, Mulitauaopele Ivi
For the intervenor, Leulumoega S. Lutu [2ASR2d30]

Before MURPHY, Associate Justice, Presiding, OLO and TAIMANU, Associate Judges.

The above-entitled matter came on for trial before the undersigned court beginning Monday, October 1, 1984. Testimony and evidence was presented; all parties rested on Tuesday, October 2, 1984. Having carefully considered the evidence and law, the court enters the following findings and conclusions.

BACKGROUND

This is a dispute over land, located in the village of Pago Pago, which all parties agree is freehold. (1) Anderson has purchased a part of Craddick's interest so their positions are identical. References in this opinion to Craddick will include the claim of Anderson. Overland Olotoa Manuma is the head of the Olotoa family. She is married to Leao'a Manuma. They will be referred to in this opinion as "Olotoa."

The seeds of this interesting litigation were planted in 1876. In October of that year a woman named Jane Sophia Foster acquired a tract of land called "Logopesega" from a Samoan named Tuuai. She confirmed her ownership in the Western Samoa Land Commission as claim number 3400. on March 31, 1897, the Supreme Court of Samoa vested title to "Lotosega" to her in court grant number 852. (The spelling varies but "Logopesega" will be used throughout this opinion.) The court grant was recorded in volume I, Court Grants, pages 169-70.

Jane Foster died in 1910, leaving a will that divided the property into three parcels. The will was recorded in 1912 in volume I, Miscellaneous Register at pages 271-72. (Most of the above is gleaned from Foster v. Olotoa (1953) 3 A.S.R. 76, of which we take judicial notice at the request of all parties.) Jane divided the land among two sons, Wesley and Emil, and a grandson, Heman. Emil later conveyed his parcel to Wesley (actually, Wesley's children); thus Wesley and Emil's shares merged. Craddick claims and Olotoa does not dispute, that he has acquired Wesley's land. It is Heman's land and its boundaries that are in dispute.

The will defined Heman's portion as follows: "I give, devise and bequeath to my grandson Heman that piece of my land on the inland side of the main road in Pago Pago extending from Wolbert's leasehold to the little creek." Wesley's portion was delineated as follows: "I give, devise and bequeath to my son Wesley Foster all that piece of my land in the village of Pago Pago on the seaward side of the road...." In 1920 Heman left the territory and has not been heard from since.

Adjoining this land, on the landward side of the road is the land Tepatase, which belongs to Olotoa. A night club called Tepatasi is located on it. In 1926 Olotoa's father built a three-story building on the land. It burned down a few years ago.

In 1981 Craddick purchased, from Sally Foster and other Foster heirs, all claim to the land Logopesega. Thereafter, Olotoa attempted to register land Logopesega as individually-owned land of Olotoa overland. That attempted registration was objected to and became LT 30-84 in the high court. In the meantime Craddick filed LT 4-84 claiming that Olotoa's husband Leao'a was threatening Craddick and his employees and attempting to interfere with his use of the land. Craddick has constructed a temporary office on the [2ASR2d31] seaward side of the road and Olotoa contends part of it encroaches on the Heman property which is now owned by her. The foregoing is pretty much undisputed.

We shall now examine the respective contentions of the parties.

POSITION OF THE PARTIES

As previously noted, both parties claim ownership of Heman's land. Nor do they agree upon the boundaries of the land, Craddick claiming that Heman's land was to the inland side of the road in accordance with the 1910 will, Olotoa claming a small portion of it lies to the seaward side of the road.

Craddick's claim is pretty straightforward. He has purchased quitclaim deeds from Heman's sisters. Their uncontroverted affidavits allege that Heman died unmarried, without children and left no will.

On the other hand Olotoa's claim is more convoluted and contemplates various alternatives. She contends first, that Fanene Foster was Heman's father. That somehow, Fanene conveyed the land to one Teutusi; that among Teutusi's heirs was William (Viliamu) Satele. Sometime in 1947 William came to Olotoa's father and borrowed $350. He promised that if the debt was not repaid (which apparently it wasn't) he would execute a deed to Logopesega in favor of Olotoa. She admits however, that the deed was drafted but was never executed by Satele. In June of 1984 Satele did execute a quit claim deed--in favor of Craddick!

Olotoa asserts an additional claim to the land based upon adverse possession. she testified that in 1926 her father began construction of a three-story building, completed in 1927. In 1927 he registered land Tepatasi which, as has been noted, is adjacent to Logopesega and also bounds on Wolbert's leasehold. It is undisputed that Tepatasi is Olotoa's land. However, Olotoa now claims that a part of the three-story building was actually on Heman's land. She also claims that over the years Olotoa people have used portions of Logopesega and their children have played on the property. It is admitted that in all legal documents referring to the three-story building (such as building permits, etc.) it was described as being on Tepatasi, not Logopesega.

FINDINGS AND CONCLUSIONS

Although nine or ten witnesses testified and twenty or so exhibits were offered and admitted there was not all that much conflict as to the facts. The maps introduced are substantially the same. The issue is which party has the best claim to Heman's land.

Olotoa's claim to the land, based upon a deed from William Satele that was never executed falls flat. In the first place, there is no competent evidence to demonstrate how Heman's land could have been conveyed to Teutusi. In the second place, there is no competent evidence to demonstrate that his son William Satele ever had the authority to convey the land. His sister, Salamasina Satele, a daughter of Teutusi testified at trial. She claims that the Satele family indeed owns land in Pago Pago, near to both Tepatasi and Logopesega but not a part of either. In the third place, the proposed conveyance never took place. Satele never executed a deed to Olotoa and in fact has recently executed a quitclaim to Craddick. We conclude that any claim to Logopesega by Olotoa based upon title received from Teutuse/Satele is without merit.

What about her claim based upon adverse possession. Both the court and [2ASR2d32] the territorial legislature (Fono) have recognized the principle of adverse possession. A.S.C.A. sec. 37.0120; Fau v. Wilson (1964) 4 A.S.R. 443. The cases and the statute (amended in 1982 to increase the occupancy period from twenty to thirty years) embrace English common law principles. The occupation must be actual, open, notorious, hostile, exclusive and continuous. Lolo v. Heirs of Sekio (1964) 4 A.S.R. 477. As to the 1926 construction there is no competent evidence to show which portion of the building, if any, occupied what portion, if any of Heman's land. Furthermore, if is inconceivable that Olotoa would have intentionally built a part of the structure on the wrong parcel. If indeed it was so placed it must have been done by mistake. Olotoa's family has always referred to the building as being upon Tepatasi. A portion of a structure encroaching by mistake, does not constitute open or hostile occupation. That portion of the Olotoa claim is without merit.

Without doubt members of the Olotoa family have from time to time passed over and used portions of Heman's land. According to witnesses at trial so have other Pago Pago families over the years. In fact, in the 1953 case referred to above, Foster took Olotoa to court to compel him to remove a boat house he had built on Logopesega. This action, as well as other conduct by the Foster family over the years, negates a claim of continuous or exclusive possession by the Olotoas.

We find it significant that it was not until 1982 when Craddick's purchased were made that Olotoa tried to register the land. If she had occupied it openly and notoriously since 1927 why wait until 1982 to advance claim? And why as her individually-owned land?

Without defining what it is, the court in Fanene v. Talio (1977) LT 64-77 described how the courts have held individually-owned land to be created. It must be (1) cleared in its entirety or substantially by an individual from virgin bush; (2) cultivated entirely or substantially by him; and (3) occupied by him or his family continuously from the time of clearing. This land was occupied before the turn of the century. There is no way it could be Overland Olotoa's individually-owned land.

The conclusion is inescapable that Olotoa's claim to land Logopesega is without merit and inferior to that of Craddick. It is therefore unnecessary to decide whether Heman's land extends across the road to the seaward side or not, since Craddick owns all of court grant 852 yclept Logopesega.

Having so concluded we must also conclude that Craddick is entitled to sole and exclusive possession of the land without interference by Olotoa or her relatives or agents.

ORDER

It is ordered, adjudged and decreed:

1. That court grant 852, the land known as Logopesega, is the freehold land of Douglas O. Craddick.
2. Overland Olotoa Manuma and Leao'a V. Manuma, their family and agents are hereby permanently enjoined from interfering with the possession and use of the subject property by Douglas O. Craddick, his employees, agents or assigns.
3. The application for the registration of individually-owned land in LT No. 30-84 is denied.
4. A copy of this judgment, accompanied by a survey is to be registered by the territorial registrar in accordance with A.S.C.A. section 37.0104.

**********

1. A.S.C.A. sec. 37.0201(b): "Freehold lands" means all those lands included in court grants prior to 1900....

Banks v. American Samoa Gov’t,


BARBARA BANKS, Petitioner

v.

AMERICAN SAMOA GOVERNMENT, Respondents

High Court of American Samoa
Appellate Division

AP No. 030-85

December 5, 1985

__________

The personnel advisory board's decision that one of two conflicting processes for selecting a person for a government position was the correct one is an executive decision not reviewable under the Administrative Procedures Act.

The mere aspiration for a particular position does not create in a person seeking that position a vested interest subject to protection under the Administrative Procedures Act.

The proper procedure to contest a Personnel Advisory Board decision affecting a person's vested interest is to seek review at the trial, not the appellate level, of the High Court.

If the decision of the Personnel Advisory Board resolving a dispute within the executive branch regarding the selection of a person for a government position violates a person's civil, common law or statutory rights that person may proceed against ASG in the Trial Division of the High Court or the Equal Opportunity Employment Commission.

Before MURPHY, Acting Chief Justice, ALA'ILIMA*, Acting Associate Justice, TAUANU'UChief Associate Judge, and VAIVAO, Associate Judge.

Counsel: For the Appellant, William Reardon
For the Appellee, Donald Greismann, Assistant Attorney General

This matter comes before the Court on a Motion by the Respondents for summary judgment. Present were the Petitioner with her counsel Mr. Reardon, esq. and representing the respondents was Mr. Greisman, Assistant Attorney General.

The posture of this case is that Mrs. Banks is appealing to this court for review of the Personnel Advisory Board's decision ordering the hiring of Mr. Penei Sewell instead of her. Admittedly the Personnel Advisory Board's decision had a direct and substantial impact on Mrs. Banks' aspirations for the position in question and she may have some cause for complaint. However, the procedural route taken by Mrs. Banks in this [2ASR2d89] instance is not available. The Personnel Advisory Board in this instance was reviewing two conflicting selection processes held for one government position.

The Personnel Advisory Board's decision that the original procedure for selection was proper and ordering the hiring of Mr. Sewell is an executive decision which is not reviewable under the Administrative Procedure Act. Mrs. Banks was not a party before the Personnel Advisory Board and her mere aspiration for the position is not a vested interest subject to protection under the Administrative Procedures Act. She has no standing. Even if we were to find some vested interest there is adequate review provided at the trial Level and pursuant to A.S.C.A. sec. 4.1040(b) the appellate court would decline this review.

The Personnel Advisory Board's decision resolved an internal dispute within the executive branch about a selection procedure. If that resolution violates Mrs. Banks' civil rights or other common law or statutory right she should proceed with an action in the Trial Division against the American Samoa Government or in the alternative the Equal Opportunity Employment Commission.

Motion for summary judgment is granted.

**********

*Honorable Charles Ala'ilima, Judge, District Court of American Samoa, sitting pro tem by designation of the Secretary of the Interior.

American Samoa Gov’t; Samoa Packing Co. v.


SAMOA PACKING COMPANY, Petitioner

v.

AMERICAN SAMOA GOVERNMENT et al., Respondents

High Court of American Samoa
Appellate Division

AP No. 002-85

May 22, 1985

__________

All hearings of the tax exemption board, when considering a request for tax exemption, must be open to the public.

Before GARDNER, Chief Justice, Presiding, MURPHY, Associate Justice, ALA'ILIMA,* Acting Associate Justice, TAUANU'U, Chief Associate Judge, and LUALEMAGA, Associate Judge.

Counsel: For the Appellant, Roy J.D. Hall, Jr.
For the Real Party in Interest, Talalelei Tulafono
For the American Samoa Government, Phyllis Coven, Assistant Attorney General

If Government expects the individual to obey the law, government itself must obey the law. In this case it did not.

Starkist filed for an amendment to its tax exemption. The law demands a public hearing in these matters. A.S.C.A. sec. 11.1605. The reason is clear. If government is going to allow one taxpayer to pay only a fraction of normal tax, other taxpayers have a right to know why that taxpayer is receiving preferential treatment. The public will never know if part of the so-called public hearing is public and part is private. All the cards should be on the table. However, in this case only part of the hearing was public.

The people have a right to know about the workings of their government and the activities of public officials in the performance of their official duties. This is the purpose of Section 11.1605 which provides for public hearing. That purpose cannot be fulfilled unless all of the public hearing is public.

As one writer has put it, "Freedom of information about governmental affairs is an inherent and necessary part of our political system. Ours is a system of self government--and self government can work effectively only where the people have full access to information about what their government is doing." (Hennings, Constitutional Law: The People's Right to Know (1959) 45 A.B.A.J. 667, 668)

We would add--that which is not known and understood is likely to be distrusted. [2ASR2d57]

This matter is remanded to the tax exemption board with instructions to conduct public hearings in compliance with the law.

**********

* Honorable Charles Ala'ilima, Judge, District Court of American Samoa, sitting pro tem by designation of the Secretary of the Interior.

American Samoa Gov’ t; Meredith v.


H.C. ATUALEVAO MEREDITH, Plaintiffs

v.

AMERICAN SAMOA GOVERNMENT, Defendants

High Court of American Samoa
Land & Titles Division

LT No. 012-85

July 17, 1985

__________

Before GARDNER, Chief Justice.

Counsel: For the Plaintiffs, John Ward
For the Defendants, Enere Levi, Assistant Attorney General

Ruling on Motion for New Trial:

By stipulation that portion of the decision stating that the land has been used for rock crushing operations will be stricken.

The court is satisfied that the grant by Congress to the President of authority to govern this Territory authorizes our eminent domain statutes and that we should follow the general rule that nor reversionary interest exists after a taking.

As to the issue of excess taking, the fact that a road subsequently cut this 16 acres from the main taking does not render the taking excessive. Nothing in this file indicates there was an excessive taking. From all that appears in file 15-59 no issue was presented as to the amount of taking, only the value. Today it would be impossible to go back and try to outguess just how much property was needed in 1959 for "airport purposes." For example, the use of satellites has now rendered unnecessary many acres taken and leased for FAA purposes. Nevertheless, that does not now render those takings excessive.

Motion for new trial denied.

**********

American Samoa Gov’t; Meredith v.


H.C. ATUALEVAO MEREDITH et al. , Plaintiffs

v.

AMERICAN SAMOA GOVERNMENT, Defendant

High Court of American Samoa
Land & Titles Division

LT No. 012-85

June 25, 1985

__________

Once land is condemned for a public purpose title vests in the government in fee simple.

The usual rules pertaining to eminent domain prevail in American Samoa.

A change in the use of condemned land does not vest title back in the original owner.

48 U.S.C. section 1661(b), excepting American Samoa from the application of United States public land laws, does not restrict acquisition by eminent domain.

The original matais who ceded American Samoa to the United States specifically recognized the right of eminent domain and that right is not impaired by the communal land system.

Before GARDNER, Chief Justice, Presiding, TAUANU'U, Chief Associate Judge, and LUALEMAGA, Associate Judge.

Counsel : For the Plaintiffs, John Ward
For the Defendants, Enere Levi, Assistant Attorney General

Defendant has moved for a Summary Judgment. The parties are in agreement that there are no justiciable issues of fact.

FACTS

In 1960 the American Samoa Government (hereafter A.S.G.) condemned 554 acres of land in Tafuna for airport purposes. Included was 72.72 acres of communal land of Lemeana'i family. For this the former title holder received, under protest, $18,857.61. Prior to receiving this compensation the Lemeana'i family had been adjudged the owners of this property in High Court case No.16-1957. The condemnation case, No.15-1959, decreed that the 554 acres was taken for public use and vested fee simple title in A.S.G.

Some time in 1960 A.S.G. established a new section of road between the airport terminal and extending toward the village of [2ASR2d67] Ili'ili. This severed some 16 acres from the origina172.72 acres taken. Two years later A.S.G. leased some property adjacent to this 16 acre parcel from the owners and in turn leased it to F.A.A. for radio facilities. At the same time A.S.G. leased the 16 acre parcel to F.A.A. for radio facilities. This parcel was used by F.A.A. for radio facilities until 1984. Since that time the parcel has been used for A.S.G's rock crushing operations.

Plaintiff family wants its land back.

DISCUSSION

Although the land was taken for "Airport Purpose", the use of the land for F.A.A. facilities was consistent with that taking. The taking was not limited to runway purposes. The communications facilities of F.A.A. for traffic control are essential to the operation of an airport. The initial taking was for a legitimate public purpose.

Thereafter its use for rock-crushing operation does not vest the title back in the original owner. As the leading California case of Arechiga v. Housing Authority, 324 P.2d 976 points out, once land is condemned for a public purpose, title vests in the government in fee simple. It does not revert to its original purpose. The reason for this rule is plain. The property owner received fair market value for his property when taken. Thereupon title vested in the condemning authority so as to give that public authority the opportunity to change its use to meet changing conditions.

But, says the plaintiff, while that may be the rule in the United States it is not the rule in American Samoa. Plaintiff contends that by condemnation proceedings in this territory the Government gets only a right to use (perhaps an easement) which exists only as long as the special use is maintained.

To reach this rather novel application of the laws relating to eminent domain, plaintiff contends that under 48 U.S.C. section 1661 (b) "off island case law" has no application to American Samoa.

48 U.S.C. section 1661(b) provides: "The existing laws of the United States relative to public lands shall not apply to such lands in the said islands of Eastern Samoa but the Congress of the United States shall enact special laws for their management and disposition." By reason of this section, plaintiff contends the case law authorities on eminent domain are meaningless.

However, that provision applies only to public lands as described in over 700 pages of 43 U.S.C. sections 1-670 which pertain to the management and control of public lands, i.e. homesteads, timber and grazing lands, reclamation and sale of [2ASR2d68] public lands. It has nothing to do with acquisition by eminent domain. Apparently Congress has never passed any such special laws for the management and disposition of any such public lands assuming any such public lands exist in the territory.

Thus, this provision appears to be the meaningless insofar as issues in this case are concerned.

Nevertheless, plaintiff contends that in the territory the Government in eminent domain proceedings can only acquire a right to "use" communal land and when the government attempts to use the land in a manner inconsistent with the original taking the land reverts to the family.

Plaintiff's argument goes something like this.

1. Section 2 of the so-called Treaty of Cession provides that the Government "shall respect and protect the individual rights of all people dwelling in Tutuila to their lands or other property... but if the said government shall require any land or other thing for public use the Government may take the same upon payment of a fair consideration for the land or other thing to those who may be deprived of their property on account of the desire of the government." (The latter sounds suspiciously like a reservation to the government of the right of eminent domain.)

2. Under Article 3 of the Constitution of American Samoa the Government is obligated to protect persons of Samoan ancestry against alienation of their lands and the destruction of the Samoan way of life. (Article 2 of the same Constitution provides for the right of eminent domain. )

3. The courts have held that the hallmark of the Samoan way of life is the communal land system.

From all this, Plaintiff argues that in condemnation proceedings the government can acquire no clear legal title, only the use of land .

The court is unpersuaded.

At every step of this territory's history there has carefully been reserved the right of eminent domain.

The right of eminent domain is of ancient origin. It is an inherent political rights of sovereignty based on the doctrine of necessity. It is essential to the existence of government--the use of property of the individual for the benefit of all. The constitutions provide only for just compensation for property taken (Amdt V, U.S. Const.; Art. 2, Am. Samoa Const.) By statute the right is express (A.S.C.A. sec. 37.2001). For that right to be effective the government must have full and unqualified ownership of the land taken. It must have unrestricted title, whatever name that title may go by. The presumption that all [2ASR2d69] land is communal and the commitment to the Samoan way of life does not overcome the urgent need for unrestricted title to condemned land. When the original matais this territory to the United States it was with a specific recognition of the right of eminent domain. (Section 2, Treaty of Cession.) That right is not impaired by the communal land system. The usual rules pertaining to eminent domain prevail.

Defendant's motion for summary judgment granted.

**********

American Samoa Gov’t; Mahoney v.


JAMES J. MAHONEY, Petitioner

v.

AMERICAN SAMOA GOVERNMENT, Respondent

High Court of American Samoa
Trial Division

CA No. 088-84

August 20, 1985

__________

Congress has delegated all powers of governance of American Samoa, including the power to tax, to the President.

Since Congress has entrusted the governance of this Territory to the Department of the Interior which has approved the Territory's Constitution and all the laws promulgated under it there is no need for special Congressional authorization of the power to tax.

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

Counsel: For the Petitioner, John Ward
For the Defendant, Donald Greismann, Assistant Attorney General,
Phyllis Coven, Aviata Fa'alevao, and Martin Yerick

Petitioner has moved for declaratory judgment on the authority of A.S.G. to lay and collect an income tax on an employee of D.O.I. whose salary is paid from Washington for services rendered in this territory. He contends that A.S.G. lacks authority to tax such income. His contentions may be summarized as follows: The power to tax in a Territory must be delegated by Congress by an organic act. The Territory has no such Act. Instead is administered by the Executive Branch of the U.S. Government. Thus, it has no independent authority to tax incomes.

The answer is, of course, that Congress has delegated full powers of governance, Legislative, Executive, and Judicial, to the President of the United States acting through the Secretary of the Interior. 48 U.S.C. sec. 1661 (c) provides that "until Congress shall provide for the Government of this Territory all civil, judicial and military powers shall be vested in such person or persons and shall be exercised in such manner as the President of all United States shall direct." Congress need not

pass an Organic Act. It has delegated all powers of governance, without reservation, to the President. Rather obviously this must include the power to tax because without such power Government cannot exist.

As the court noted in William v. A.S.G., 2 A.S.R.2d 9 [2ASR2d75] (1984), Congress has entrusted the governance of this Territory to the Department of the Interior which has approved the constitution and all laws promulgated under that constitution.

There is no need for a special congressional authorization. The general authorization suffices.

Actually, this exact issue has been before the Appellate Division of this court in Butler vs. G.A.S., App. 45-72 which I held that "the Secretary of the Interior through the President, as the lawful delegate of legislative power for American Samoa, stands in the shoes of Congress and similarly, has authority to impose such a tax scheme." Butler. page 9.

Butler held that although the Fono does legislate in accordance with our constitution, it legislates subject to the direct control of the Secretary of the Interior and that "all legislative power is vested in the Secretary of the Interior."

Congress having delegated all legislative power to the Secretary of the Interior via the President. That being so there is no need for an organic act authorizing legislation. This legislation is valid. (1)

Motion for declaratory judgment denied.

**********

1. For an interesting discussion see The Validity of the Incorporation by Reference of the United States Tax Laws, Including Those To Be Passed In The Future, By the Legislature of American Samoa by Eni Hunkin which appears in Volume 3, number 3, October 1975, the Samoan Pacific Law Journal.

American Samoa Gov’t; Fetui v.


FETU FETUI JR., Plaintiff

v.

AMERICAN SAMOA GOVERNMENT et al. , Defendants

High Court of American Samoa
Trial Division

CA No. 110-84

March 8, 1985

__________

The exercise of prosecutorial discretion cannot be challenged by one who himself is neither prosecuted nor threatened with prosecution.

Consent, by words and actions, to an intentional tort bars recovery.

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

Counsel: For the Plaintiff, Stephen Ybarra
For the Defendant, Donald Greismann, Assistant Attorney General

The facts of the case are simple. They could well constitute a chapter of Joseph Wambaugh's Choir Boys.

One night after work plaintiff, a policeman, decided to celebrate his birthday by getting drunk with two fellow off duty officers under the banyan tree in front of the police station. He (they) did. Plaintiff not only got drunk, he got obnoxiously drunk. Defendant Petelo Mikaele, plaintiff's long suffering senior officer, was on duty. He told plaintiff not to bring beer into the station. He did and was evicted. Defendant told plaintiff to go home. He didn't. Finally Defendant went on patrol. Somehow plaintiff got on the police radio and broadcast," Sgt. 1-14 (defendant) I'm waiting for you at the police department. Come back and I'll put you down." Defendant returned to the station. Plaintiff grabbed him by his shirt and said, "Go ahead. Hit me." He repeated this statement two or three times.

By this time defendant was out of patience with the plaintiff. He didn't want to arrest him because it would cost him, the plaintiff, his. job. So, he acceded to the plaintiffs request and hit him. Unfortunately, when plaintiff hit the ground he suffered head injuries for which he sued defendant (otherwise he probably would be thanking the defendant for not arresting him.) [2ASR2d53]

Plaintiff filed a civil rights action for this alleged battery against defendant, the Commissioner of Public Safety and ASG. He also alleges a conspiracy of the authorities in not criminally prosecuting defendant. This contention is frivolous. It is settled doctrine that the exercise of prosecutorial discretion cannot be challenged by one who himself is neither prosecuted nor threatened with prosecution. Linda R.S. v. Richard D., 410 US 615, 619 (1973); Simon v. Eastern Kentucky Welfare Rights Organization, 426 US 26 (1976). There is no equal protection issue. We return to the basic battery.

The issue is, can one consent to an intentional tort? Can someone say, "I dare you to hit me," then sue when he gets hit?

Preliminarily, the court holds that while plaintiff was drunk, he wasn't too drunk to give consent. "The question of whether the plaintiff was in such an advanced state of intoxication that he was incapable of consenting to the alleged assault and battery presents a genuine issue of material fact." Hollerund v. Malamis, 174 N.W.2d 626, 635 (Mich. App. 1970). We hold plaintiff was capable of giving consent.

According to Prosser "[c]onsent ordinarily bars recovery, " not because it is a defense, but because it "goes to negative the existence of any tort in the first place." Prosser & Keeton, Torts 112 (5th ed. 1984). Prosser quotes Lord Dehman. in Christopherson v. Bare (1848) 11 Q.B. 473: "To say that the defendant assaulted the plaintiff by his permission... is a manifest contradiction in terms.") Most of the cases, though, speak in terms of consent as a defense.

The general rule is that a plaintiff who consents has no claim upon the defendant, unless there is public interest involved. Therefore there may be a different analysis if the consent is to a crime.

Prosser finds that the "considerable majority of the courts" (e.g. , Iowa, Kansas, North Carolina, West Virginia, Wyoming), in cases of mutual combat, have used a public policy concept to hold that the plaintiff's consent will not protect the defendant if the tort is a crime. The rationale is that a civil action helps protect the state's interest and "the parties will be deterred from fighting by the fear of liability." Prosser at 122. Prosser points out that these decisions have been widely criticized. The criticisms are that no one should be rewarded for his own part in a wrong, the state can protect its interests through the criminal law, and that the parties are likely to be encouraged by the prospects of winning in court if they are injured. A minority (e.g. Kentucky, Michigan, Nevada, Texas, Washington) accepts the view that the plaintiff may not recover if he consents to a tort that is a crime.

That' s the view of the Restatement, which says "consent is effective to bar recovery in a tort action although the conduct [2ASR2d54] consented to is a crime." Restatement 2d, Torts, sec. 892C (1979). An example in the Restatement comes close to our case: "A and B, after an altercation, agree to a fist fight. A gives B a black eye. A is not liable to B." Restatement 2d, Torts, sec. 60, Illustration 2 (1965). It seems that in most battery cases the courts ignore the issue of the tort being a crime.

Even the courts that allow a bellicose plaintiff to collect damages usually accept consent as a fact in mitigating or disallowing punitive damages.

There are many cases saying that mere words do not excuse a battery. As absolute as their language is they are not persuasive here because they involve abusive words such as personal insults and foul language, not "hit me" type language. An exception is Nsauful v. Milligan. 187 S.E.2d 511 (S.C. 1972). The plaintiff made an insulting remark about the defendant's children. He later apologized to the defendant's wife. A few days later the defendant learned of the incident and went to the plaintiff's house. He told him he wasn't putting up with that kind of statement and put a hand on his shirt. The plaintiff threw his hands up and said, "Hit me." The court held for the plaintiff, saying that neither the comment about the defendant's children nor the words "hit me" constituted justification for the attack since there was no "accompanying offer of physical violence." Words alone cannot justify assault and battery.

In this, as in so many of these cases, the court wound up punishing the party who was in the wrong rather than following any consistent set of rules. The plaintiff may have said "hit me" but it was the defendant who was being obnoxious, the reverse of our case. And Fetui's behavior would qualify as an "accompanying offer of physical violence."

Another "hit me" case, the one most similar to ours, is O'Connor v. Western Freight Association, 202 F. Supp. 56l (S.D.N.Y. 1962). The defendant, an employee of a freight-forwarding company, asked the plaintiff, an employee of a railroad, to check a shipment. The plaintiff disregarded the request and the defendant became angry. Later the defendant invited the plaintiff to fight. The plaintiff refused, but said he would at noon, off the company's premises. The defendant persisted and the plaintiff said "All right, let's fight," putting up his fists. The plaintiff was injured. The court held that under New York law if the plaintiff consents to the fight he is without a remedy for his injuries. Since the plaintiff accepted the defendant's invitation to fight his consent constituted a complete defense.

It appears to us that the better rule is that one may, by his words and actions, consent to an intentional tort. There is something basically unjust in daring someone to hit, then demanding recourse through the courts when hit. [2ASR2d55]

As applied to the facts of this case, plaintiff consented to the battery and may not recover--either from Petelo Mikaele, the Commissioner of Public Safety or ASG.

Judgment for the defendant.

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American Samoa Gov’t; Burns Philip Co., Ltd. v.


BURNS PHILP COMPANY, LTD., Plaintiff,

v.

TINA AFO, AIMITI AFO, TEMA AFO,
MAGAUI FIAME, SIIGAVA'A FALEALII, Defendants.

High Court of American Samoa
Trial Division

CA No. 93-84

January 7, 1985

__________

There are no dower rights in communal land.

Before MURPHY, Associate Justice, Presiding , TAIMANU and OLO, Associate Judges.

Counsel: For interpleader, Hall & Associates by Gary Hynds
For defendants Afo and Falealii, Falalelei A. Tulafono
For defendant Fiame, Watson & Reardon by Steven H. Watson

The interpleading plaintiff having been discharged, the above-entitled matter came on for trial on the cross-claims.

FACTS

The interested parties stipulated to the following facts: the Afo family leased a portion of its communal land to Burns Philp for $300 per month. The lease was entered into by the matai Tema Afo on behalf of the family. In 1983 Tema died. Aimiti Afo is his widow. The family has not yet selected a successor titleholder. [2ASR2d40]

ISSUE

The widow claims she is entitled to one-third of the rental pursuant to her right of dower. A.S.C.A. section 40.0103 provides a right of dower of one-third of a decedant's real or personal property. other members of the Afo family contend succession rights in general and dower rights in particular do not apply to communal property.

CONCLUSION

We hold that the statutes pertaining to estates do not apply to communal land. A.S.C.A. section 40.0206 states that the provisions of the chapter do not apply to communal land. None of the chapters of the estate statutes can logically be applied to communal land. It is true, as able counsel for the widow points out, in the past this court has ordered the proceeds of communal land paid to a widow. See Nouata v. Pasene, LT No. 18-1931. That decision was clearly wrong and this court will not perpetuate that error. The affairs of the family, including collection of rent from communal property are administered by the matai. Hence, the funds in this case must be deposited in trust for the family until a successor matai is named.

ORDER

It is decreed and ordered that all rental funds be deposited in an interest bearing account for the benefit of the Afo family until selection of a titleholder or further order of the court.

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American Int’l Underwriters; Seumalo v.


UKULELE SEUMALO, Plaintiff

v.

AMERICAN INTERNATIONAL UNDERWRITERS, Defendant

High Court of American Samoa
Trial Division

CA No. 038-85

July 23, 1985

__________

The implied covenant of good faith and fair dealing contained in every insurance contract includes a duty to effect reasonable settlement of a claim against the insured within its policy limits when there is a substantial likelihood of recovery in excess of those limits.

An insured has a right of action against his insurer for damages proximately caused by the insurer's breach of his duty of good faith and fair dealing.

Before GARDNER, Chief Justice.

Counsel: For the Plaintiff, William Reardon
For the Defendant, Roy J.D. Hall, Jr.

On June 1, 1983 Plaintiff had a public liability insurance policy with Defendant. This policy had a $10,000 limitation. On that date Plaintiff had an accident with Nicholas Leoso in which Leoso suffered substantial bodily injuries.

Plaintiff contends he reported the matter to Defendant immediately. However, this. testimony is suspect since his written accident report to Defendant was dated September 12, 1983 which was shortly after Defendant had been alerted to this claim by a letter from Leoso's attorney dated September 8, 1983 we find that Plaintiff did not report this matter promptly. His hands aren't entirely clean.

On September 12, 1983 Defendant responded to the Leoso letter with a request for police and medical reports. Counsel responded promptly, Samoan time, (six months later) with a police report, medical consent and an offer to negotiate.

Then, on March 27, 1984 Leoso's counsel offered to settle for the policy limits--$10,000--the offer to be good for 30 days. On March 28, 1985 Defendant acknowledged the demand and apparently forwarded the file to the head office in Sydney. By letter of April 3, 1984 (delivered April 23, 1984 ---speedy postal service, Samoan style) the claims manager gave Defendant "the policy limit with which to negotiate" but in view of Defendant's "tough negotiating practices" he expected settlement [2ASR2d72]"at a substantially reduced figure." On April 19, 1984 Leoso's counsel extended the time to settle for the policy limits 21 days. There was no response. On May 23, 1984 Leoso filed suit. The trial court gave judgment for $12,000 in October 1984, the appellate court double this award. Plaintiff now owes $15,000 on the judgment.

Every insurance contract contains an implied covenant of good faith and fair dealing. Communale v. Traders and General Insurance Co., 50 Cal. 2d 654, 328 P.2d 198. This includes a duty to effect reasonable settlement of a claim against the insured within its policy limits when there is a substantial likelihood of recovery in excess of those limits. Upon breach of that duty by the insurer, the insured has a right of action against the insurer for damages proximately caused thereby. Northwestern Mut. Ins. Co. v. Farmer Ins. Co., 76 Cal. App. 3d 103. 143 Cal. Rptr. 415 (Gardner, P.J., concurring).

Here, once counsel got into the case Plaintiff was advised of his right to secure counsel and at trial (Oct. 1984.) an offer was made to settle for the full policy limit. This came a little late. Almost six months earlier the time to accept the offer had run out.

The local manager of Defendant company had evaluated the case as a policy limit case. So had the claims manager at the home office. With clear liability. and serious injuries there was a substantial likelihood of recovery in excess of the $10,000 limit. Of course Defendant wanted to bargain but it could not do so at plaintiff's expense. It knew it was on the hook for $10,000 (which eventually went for $25,000) so it lost nothing by stalling. It did and it cost Plaintiff $15,000. This, Defendant ! could have avoided by settling. They took a chance and lost.

Defendant's story that it tried unsuccessfully to contact Plaintiff falls a little flat. All they had to do was pick up the telephone. He is listed. He has been in business for several years.

Plaintiff did not receive the fair treatment his Insurance Company owed him. However, the facts of this case afford no basis for an award of damages for emotional distress nor of punitive damages.

Judgment is for $15,000 plus interest.

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