17ASR2d

17ASR2d

Opapo v. Puailoa,


OPAPO AFUALO, Appellant

v.

PUAILOA TAVETE, Appellee

High Court of American Samoa
Appellate Division

AP No. 16-90

November 1, 1990

__________

Since the rule relating to the timely manner for ordering a transcript of proceedings on appeal is not jurisdictional, the court may grant additional time to comply with its requirements. A.C.R. 10(b).

Order extending the time to comply with Appellate Court Rule 10(b) was affirmed, and motion to dismiss for failure to timely comply was denied, where the resulting delay was less than thirty days, the appeal would not have been perfected for the current appellate session even with timely compliance, and appellee suffered no real prejudice by the delay.

Before KRUSE, Chief Justice, FONG*, Acting Associate Justice, KLEINFELD**, Acting Associate Justice, and LOGOAI, Associate Judge.

Counsel: For Appellant, Gata E. Gurr

  For Appellee, Charles v. Ala'ilima

Per Curiam:

Appellee Puailoa Tavete moved for a dismissal of the appeal upon the ground that appellant had failed to comply with the requirements of Appellate Court Rule 10(b)---relating to the timely manner for ordering a transcript of the proceedings on appeal. The Chief Justice, sitting as a single justice of the appellate division, set the [17ASR2d31] motion, as he must under Appellate Court Rule 27(c), for hearing before the full appellate division at its next regular session, commencingOctober 29, 1990.

Appellant had also filed a motion for an extension of time to comply with the various requirements of Rule 10(b). As a motion for an enlargement of time is one which may be handled by a single justice of the appellate division, see Appellate Court Rule 26(b), the Chief Justice considered the motion and, apparently satisfied that there was no significant prejudice to appellee, granted appellant the relief sought.

For reasons given we deny the motion to dismiss and affirm the order granting an extension of time for compliance with Rule 10(b). The rule is not jurisdictional. The resultant delay with the filing of the transcript, because of non-compliance with the rule, is less than 30 days. Even if there had been compliance, the appeal would not have been in any case perfected in time for hearing at this appellate session. In these circumstances there is no real prejudice suffered by the appellee, and in the interest of justice, the motion to dismiss should be denied.

It is so Ordered.

********

*Honorable Harold M. Fong, SeniorJudge,United StatesDistrict Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

**Honorable Andrew J. Kleinfeld, District Judge, United States District Court for the District of Alaska, serving by designation of the Secretary of the Interior.

Rocha v. Rocha,


JEANNETTE PENITUSI ROCHA, Appellant

v.

JOSE M.B. ROCHA, Appellee

High Court of American Samoa
Appellate Division

AP No. 18-90

October 24, 1990

__________

A court reporter is to produce a transcript within a thirty days after receiving an order for it. A.C.R. 11(b).

A party who wishes to order only part of a transcript should clearly designate the parts he is ordering; if unclear, the risks of any uncertainty must be borne by the party requesting the transcript. A.C.R. 11(b). [17ASR2d16]

Before REES, Associate Justice.

Counsel: For Appellant, Robert A. Dennison III

  For Appellee, Asaua Fuimaono

On Motion for Enlargement of Time:

Notice of this appeal was filed on August 8. On the same day, counsel for appellant requested an estimate of the cost of "only those portions of the proceedings which are relevant to Finding No.4 and Conclusion No. 5."  In a separate letter to the court reporter who had transcribed the trial, counsel stated that "[i]t is my belief that all of the relevant testimony is to be found in the testimony of the Respondent, and most of that in my direct examination of him."

Apparently taking this "belief" as a statement of the portion of the transcript of which an estimate was being requested, the reporter did make an estimate which was filed in the record on August 13. Counsel then ordered the production of the partial transcript---again stating that he was requesting "that portion of the trial proceedings ...relevant to the contested Finding and Conclusion" and that he "believe[d]" that "most" of that portion was in his examination of the respondent. The reporter produced a partial transcript within the thirty-day limit prescribed by Appellate Court Rule 11(b).

Appellant now moves, however, for an enlargement of the time for filing of the transcript. The stated ground for the motion is that "[t]he partial transcripts filed to date omit part of the testimony requested by Appellant to be transcribed" and that the reporter needs more time to transcribe the "omitted portions.” Counsel has appended to his motion another letter to the court reporter, confirming a conversation" agreeing that you would prepare an augmented transcript. ..to fully include all testimony regarding the money and other property of the parties."

Counsel appears to be telling the Court one of two things: either that he was wrong in his original "belief" that all the relevant testimony was contained in the portions of the transcript which he designated or that the court reporter erred in her estimate of which statements within the designated portions were "relevant to the contested Finding and Conclusion." It is impossible to tell, either from the motion or from the other papers in the Court's file, which of these errors is being alleged. [17ASR2d17]

This suggests a fundamental problem in the way counsel went about ordering the transcript.

A party who wishes to order only part of a transcript should clearly designate the parts he is ordering. "My direct examination of the Respondent" is a clear designation. "Those parts of the transcript relevant to Finding 4 and Conclusion 5" is not. The court reporter is not a lawyer and cannot be relied upon to judge which portions of the transcript are "relevant."

Counsel's amended description of the desired portion of the transcript ---"all testimony regarding the money and other property of the parties"---is not much better than the one that seems to have caused the confusion in the first place. Although it does not call for a legal opinion from the court reporter, it requires her to make judgment calls about which portions of the testimony should be characterized as "regarding money and other property" and which should not. Should the judgment of the reporter differ in some instances from that of counsel for the appellant, another motion and another extension will presumably be necessary.

The way to avoid such confusion, delay, and inconvenience is to designate portions of the transcript by reference to precise and observable boundaries such as "the testimony of X on cross-examination" or "the testimony of y before lunch on Wednesday.” Such units will invariably include some testimony that is of no interest to the party ordering the transcript; it is understandable that a party might prefer to save money by attempting to divide the transcript thematically rather than chronologically. The present case illustrates, however, that such an attempt can be far more trouble than it is worth. The clerk's records indicate that the entire trial lasted only an hour and forty minutes; the cost of producing a transcript of respondent's entire testimony could hardly have exceeded the value of the time spent thus far by appellant's counsel in dealing with the problem generated by his order for "relevant" portions.

In any event, the risks of uncertainty must be borne by the party who chooses them. If granting the present motion would result in any prejudice to the appellee---if, for instance, it would cause the appeal to be set over from one annual appellate session to another---the motion would be denied and the appeal decided on the basis of the record generated by the court reporter's best effort to comply with appellant's vague request. In the absence of any apparent prejudice, the motion will [17ASR2d18] be granted. Counsel may, if he wishes, make any further amendment to his order for a partial transcript no later than October 29. The reporter will then have until November 15 to produce the transcript.

It is so Ordered.

********

Saofetalai; Members of the Aoelua Family v.


MEMBERS OF THE AOELUA FAMILY, Plaintiffs

v.

AOELUA SAOFETALAI, Defendant

High Court of American Samoa
Land and Titles Division

MT No. 01-90

November 15, 1990

__________

High Court may remove a title from a matai upon a petition by any member of his family if the court finds the matai has been absent from American Samoa for more than one year. A.S.C.A. § 1.0412(a).

Absence from American Samoa for purposes of statute allowing the court to remove a titleholder absent from territory for more than one year from his matai title is a different question from whether one is a bona fide resident of the territory for purposes of the voting statute. A.S.C.A. § 1.0412(a).

Court may consider the family's wishes and the reasons for the matai's absence when deciding whether to remove titleholder from a matai title.

Petition of family members to remove titleholder absent from American Samoa for more than one year from his matai title was granted where titleholder planned to be absent indefinitely, petitioner and many signatories to the petition actively pal1icipated in family affairs, considerable family support favored the petition, and titleholder's continued absence would encourage usurpers to the title.

Before KRUSE, Chief Justice, VAIVAO, Associate Judge, LOGOAI, Associate Judge, and MAILO, Associate Judge.

Counsel: For Plaintiffs, Charles V. Ala'ilima

  For Defendants, Togiola T.A. Tulafono

Samuelu Aoelua, a member of the Aoelua family of Afono village, filed a petition to remove the defendant, Aoelua Saofetalai, from the matai title "Aoelua." A number of people, both on-island and off- island, claiming to be members of the Aoelua family are also signatories to petition. The main ground asserted for relief is that the defendant lives outside the territory and that he has been derelict of his duties as the matai. [17ASR2d89]

Facts

In 1985 the land and titles division of the High Court awarded the title "Aoelua" to the defendant, then known as Pulouoleola S. Tagoa'i, in Aoelua v. Tagoa'i, MT No. 1-85 (1985), aff'd Aoelua v. Tagoa'i, AP No. 20-85 (1986).  However, after prevailing in court, the defendant then went through a title investiture ceremony whereby he and another, Manu Lealai, were presented to the village council as joint title-holders; an action thoroughly bewildering, to say the least.(1) Some time in 1987, the defendant removed to theUnited States where he currently resides and works inTacoma,Washington. The defendant testified that he had left the territory in pursuit of his wife's desires to further attend school and qualify as a registered nurse. Such a course of instruction, according to the defendant, would take between two and four years; however, the defendant also admitted that his wife's educational plans were still in abeyance until they had earned sufficient funds necessary for tuition.

Discussion

In matters of matai removal, we look to the provisions of A.S.C.A. §§ 1.0411-1.0412. While the former enactment provides a procedure of removal for cause, the latter deals with those situations of extended matai absence from the territory.  A.S.C.A. §1.0412(a) provides as follows:

Any matai absent from American Samoa for more than 1 year may be removed of his title upon petition filed in the High Court by any member of the family of the absent matai. Upon presentation of such petition and satisfactory proof of such absence, the court may, but need not, remove such title. The court in its discretion may consider the reasons for such absence and the wishes of the family actively serving the matai.

On the evidence presented, we are satisfied for purposes of A.S.C.A. §1.0412(a) that the petitioner herein, Samuelu Aoelua, is a member of the Aoelua family, and that the defendant matai, Aoelua [17ASR2d90] Saofetalai, has been absent from the territory for more than one year.(2) On this evidence alone, the defendant may be removed from his title. See A.S.C.A. §1.0412(a).

The Court, however, may in its sound discretion reject the petition after considering the reasons for the defendant's absence, together with the wishes of the family actively serving the matai. See A.S.C.A. §1.0412(a). We thus look to the reasons for the defendant's absence from the territory---his wife's further education. The immediate difficulty we have in this regard is that the defendant has now been absent from the territory, and hence from his aiga (extended family), for some three years and yet his wife has still to commence schooling. Additionally, it certainly appears from the testimony that defendant's plans call for a continuing and extended absence from the territory. Quite obviously, these reasons, even if factual, hardly impress when viewed against the defendant's responsibilities to the Aoelua family. The Fono's enactment of A.S.C.A. § 1.0412(a) merely highlights the self-evident truth that a matai's place is with his family and that the meaningful exercise of his duties demands his continuing presence in the territory. Here, the defendant matai's plans to be indefinitely absent from the territory simply cannot be reconciled with the very clear policy embodied in the enactment.

With regard to views of the family, we are also satisfied on the evidence that there is considerable family support in favor of the petition. We are further satisfied that the petitioner and a substantial number of on-island signatories to the petition are actively participating in family affairs, notwithstanding the absence of leadership from the matai.(3) [17ASR2d91]

Finally, a very telling factor weighing against our exercising discretion in favor of the defendant is that his absence necessarily continues to encourage a pretender's unlawful usurpation of the Aoelua family's title, as well as its dignity.

The petition should be granted and the family should be allowed to select a new matai. The defendant Aoelua Saofetalai shall be removed from the title "Aoelua," pertaining to the village of Afono, and the Territorial Registrar is directed to amend the matai registry accordingly.

It is so Ordered.

********

1. Having been selected as the sole and legitimate title-holder, the defendant then publicly holds himself out as merely a co-holder of the title in a manner thoroughly repugnant to that very legal process which made him the matai. See A.S.C.A. § 1.0401.

2. The defendant attempted to argue compliance with the statute by attempting to show that he was still a bona fide resident of the territory for voting purposes; he was apparently permitted to vote in the last election as an absentee voter. This argument, however, is without merit. Absence from the territory for more than one year for purposes of A.S.C.A. § 1.0412(8) is quite a different question than whether one is a resident of the territory for purposes of the voting statute.

3. The defendant testified that none of the petitioners were actively serving him and he thus attempted to build a case around the enactment's requirement that the Court take only into account the wishes of those family members "actively serving the matai." We find this argument to be spurious. A matai cannot realistically expect traditional service (tautua) while he is effectively residing outside the territory and thousands of miles from the village. (Counsel's suggestion of $20.00 bills in the mail is, at best, facetious.)

Taulaga v. Patea,


TAULAGA M. MASANIAI, Appellant

v.

PATEA SIAFONO, Appellee

High Court of American Samoa
Appellant Division

AP No. 19-89

December 18, 1990

__________

Former counsel's failure to communicate a judgment to a client, if true, might or might not give rise to a cause of action for malpractice, but this does not give the court jurisdiction it does not have.

The Appellate Division can hear an appeal only if a motion for new trial has been made within ten days of judgment, and only if a notice of appeal has been filed within ten days of the denial of a motion for new trial. A.S.C.A. § 43.0802.

Unlike violations of non-jurisdictional rules, for which the Court has the power to impose sanctions other than dismissal, a would-be appellant's failure to comply with the mandatory steps necessary to give the Court jurisdiction leaves it powerless to grant any relief.

An order issued by a court without jurisdiction is null and void.

Before REES, Associate Justice, FONG*, Acting Associate Justice, KLEINFELD**, Acting Associate Justice, and LOGOAI, Associate Judge.

Counsel: For Appellant, Fai'ivae A. Galea'i

  For Appellee, Asaua Fuimaono [17ASR2d207]

On Motion for Rehearing:

We dismissed this appeal for lack of jurisdiction. Appellants now petition for rehearing. The petition does not appear to disagree with our holding that we had no jurisdiction. Rather, counsel for appellants states that he "would like again, to extend ...deep apologies" for "the unintentional jurisdictional and non-jurisdictional defects" in the appeal.

The petition is devoted largely to a discussion of the merits of the Rule 60(b) motion for relief from judgment, from whose denial the appeal had been taken. The principal contention is that appellant did not learn until 1984 about the 1966 judgment from which relief was sought below, and that this was because his former counsel had failed to communicate with him.

The allegations against former counsel, if true, might or might not give rise to a cause of action for malpractice. They cannot, however, supply this court with jurisdiction it does not have. Our jurisdiction is defined by statute. The statute, A.S.C.A. § 43.0802, provides that the Appellate Division can hear an appeal only if a motion for new trial has been made within ten days of judgment, and only if a notice of appeal has been filed within ten days of the denial of a motion for new trial. Unlike violations of non-jurisdictional rules, for which the Court has the power to impose sanctions other than dismissal if the interests of justice would thereby be served, a would-be appellant's failure to comply with the mandatory steps necessary to give the Court jurisdiction leaves the Court powerless to grant any relief at all. An order issued by a court without jurisdiction is null and void.

Both the 1966 judgment awarding the disputed land to appellee Patea and the decision below denying relief from this judgment are final. The appellant has exhausted the available remedies. The point beyond which further attempts at relitigation can amount to nothing but harassment was passed some time ago.

The petition for rehearing is denied.

********

*Honorable Harold M. Fong, SeniorJudge,United StatesDistrict Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

**Honorable Andrew J. Kleinfeld, District Judge, United States District Court for the District of Alaska, serving by designation of the Secretary of the Interior.

Taulaga v. Patea,


TAULAGA M. MASANIAI, Appellant

v.

PATEA SIAFONO, Appellee

High Court of American Samoa
Appellate Division

AP No. 19-89

November 2, 1990

__________

The requirement that before filing a notice of appeal, a motion for a new trial shall be filed within 10 days after the announcement of the judgment or sentence is jurisdictional. A.S.C.A. § 43.0802(a).

A motion for new trial must set forth "with particularity” the grounds on which the trial court decision should be reversed. T.C.R.C.P. 7(b)(1).

The purpose of the particularity requirement is to avoid unnecessary appeals by giving the trial court itself a chance to correct any errors it may have made. T.C.R.C.P. 7(b)(1).

If no timely motion for reconsideration or new trial conforming to the "particularity" requirement of T.C.R.C.P. 7(b)(1) is filed within the statutory ten-day deadline, then the Appellate Division lacks jurisdiction to entertain an appeal. A.S.C.A. § 43.0802(a).

The requirement that a notice of appeal shall be filed within 10 days after the denial of a motion for a new trial is jurisdictional. A.S.C.A. § 43.0802(b).

Samoan communal land belongs to families rather than individuals, and a judgment against the family is binding on the family despite the succession of matai-title holders through time.

Destroying the court reporter's shorthand notes in the twenty years between a final judgment and a party's attempt to relitigate the case does not violate due process.

Before REES, Associate Justice, FONG*, Acting Associate Justice, KLEINFELD**, Acting Associate Justice, and LOGOAI, Associate Judge. [17ASR2d35]

Counsel: For Appellant. Fai'ivae A. Galea'i

  For Appellee, Asaua Fuimaono

Per REES, J.:

The trial court judgment in this case was entered on August 25, 1989.  Judgment was for defendant/appellee Patea. Plaintiff/appellant Taulaga did not move for reconsideration or new trial. but filed a notice of appeal on September 6. 1989.

The territorial statute governing appeals from High Court decisions provides that, “[b]efore filing a notice of appeal. a motion for a new trial shall be filed within 10 days after the announcement of the judgment or sentence." A.S.C.A. § 43.0802(a). The requirement of a motion for new trial or reconsideration of judgment is jurisdictional. See, e.g., Fai'ivae v. Aumavae, AP 2-76 (decided December 9, 1977); Government of American Samoa v. King, AP No. 19-1970; Judicial Memorandum No. 2-87, 4 A.S.R.2d 172 (1987). The motion for new trial must set forth "with particularity" the grounds on which the trial court decision should be reversed. Trial Court Rules of Civil Procedure. Rule 7(b)(1). The purpose of this requirement is to avoid unnecessary appeals by giving the trial court itself a chance to correct any errors it may have made. See King, supra, slip opinion at 3.

If no timely motion for reconsideration or new trial conforming to the "particularity" requirement of Rule 7(b)(1) is filed within the statutory ten-day deadline. then "the Appellate Division. ..has no jurisdiction to entertain an appeal in such a case---regardless of any arguments, equitable or otherwise, to the contrary." Judicial Memorandum, supra. 4 A.S.R.2d at 174 (citing Fai'ivae, supra). No such motion was filed in the present case. We therefore have no jurisdiction to hear the appeal.

We note also the provision of A.S.C.A. § 43.0802(b) that "[a] notice of appeal shall be filed within 10 days after the denial of a motion for a new trial." This requirement has also been held to be jurisdictional. Taufua v. Steffany, AP No.2-77 (decided April 5, 1977); see Appellate Court Rule 26(b). As previously noted. no motion for a new trial or for reconsideration or amendment of judgment was filed in the present case. September 4. 1989, the tenth day after the entry of judgment, was a legal holiday. September 5, the eleventh day, was not a holiday. The notice of appeal was therefore due on September 5. See [17ASR2d36] Appellate Court Rule 26(a). Instead, it was filed on September 6. Even if we could somehow dispense with the requirement of a motion for reconsideration and instead count the time in which to appeal from the date of judgment, and even though the appeal would then have been filed only one day late, this late filing would still deprive us of jurisdiction.

Appellants have also violated several non-jurisdictional rules of appellate procedure, including the requirements that an estimate of the cost of a transcript be ordered within five days of the notice of appeal, that the transcript itself be ordered within ten days of receipt of the court reporter's estimate, and that appellant's brief be filed within forty days of the filing of the record. See Appellate Court Rules 3, 10, and 31. Any of these procedural defects might have resulted in dismissal of the appeal. In the case of such non-jurisdictional defects, however, the appellate court has discretion, in the interest of justice, to impose some lesser sanction than dismissal. See Alaimalo v. Sivia, 17 A.S.R.2d 25 (1990); Opapo v. Puailoa, 17 A.S.R.2d 30 (1990). As the mandatory provisions of A.S.C.A. § 43.0802 leave us no choice but to dismiss the present appeal for lack of jurisdiction, we need not reach the question of what to do about the various non-jurisdictional defects.

Even if we were to reach the merits of this appeal, we would be constrained to uphold the trial court's judgment. This is the second attempt by Taulaga to relitigate a 1966 High Court decision holding that the land in question belongs to Patea. See Patea v. Taulaga, 4 A.S.R. 337 (1966); Taulaga v. Patea, 4 A.S.R.2d 186 (1987); Taulaga v. Patea, 12 A.S.R.2d 6 (1989). As was explained by the trial court in 1987 and again in 1989, the 1966 decision was res judicata, binding on the parties and on the Court.

Appellant contends that the 1966 case does not bind him because he did not assume the Taulaga title until 1984. It is well settled, however, that Samoan communal land belongs to families rather than individuals, and a judgment against the family is binding on the family, regardless of the comings and goings of matai title holders.

Appellant's related contention that the 1966 court erred in trying the case after the death of the Taulaga titleholder who had objected to Patea's offer of registration, and before any new Taulaga had been selected, is likewise without merit. The trial court would have had discretion to continue the trial for a few months pending the selection of a new Taulaga, but the court also had discretion to decide that delay would be unfair to the opposing party. The 1966 court noted that the [17ASR2d37] interest of the Taulaga family was represented at trial by none other than the very Maresala who eventually became the next Taulaga titleholder (and who, perhaps even more importantly, is the appellant now before us.) Maresala's formal assumption of the title, however, did not take place until eighteen years after the trial. It would have been most inappropriate to require the Patea family to wait that long for a resolution of their claim.

Finally, appellant has submitted affidavits to the effect that the 1966 court's opinion contains an inaccurate statement of what happened at the trial. These affidavits were not presented to the court below and are therefore not part of the record of the present appeal. Appellant further contends that the Court has denied him due process of law by allowing the destruction of the court reporter's shorthand notes of the 1966 trial at some time during the twenty years between the decision in that case and his first attempt to relitigate it. This contention is also without merit. Had Maresala chosen to order a transcript within a reasonable time after the 1966 trial, either pursuant to an appeal on behalf of the Taulaga family or for any other reason, a transcript would have been prepared. After a few years, neither Maresala nor anyone else having ordered a transcript, the shorthand notes were apparently discarded. No one having appealed the 1966 decision, it had become final and binding on all parties, and there was no reason to believe that a transcript would ever be necessary. The Court was under no obligation to keep the shorthand notes around forever.

The appeal is dismissed.

********

*Honorable Harold M. Fong, SeniorJudge,United StatesCourt for the District of Hawaii, serving by designation of the Secretary of the Interior.

**Honorable Andrew J. Kleinfeld, District Judge, United States District Court for the District of Alaska, serving by designation of the Secretary of the Interior.

Taua'a; Tuato'o v.


TUATO'O TAUTALATASI and MUAGUTUTIA VAIULA
TUATO'O, on behalf of the TUATO'O FAMILY of Alofau,
Appellants

v.

TAUA'A LI, FAUMUINA FAMILY, TOIA FALEUILA,

REV. ELI SOLI FUIMAONO and members of the
CONGREGATIONAL CHRISTIAN CHURCH OF ALOFAU
VILLAGE, Appellees

High Court of American Samoa
Appellate Division

AP No. 12-90

December 11, 1990

__________

In a dispute regarding ownership of a parcel of land where an active church stood, the appellate court accepted the trial court reasoning that since it was unlikely that someone would lease land containing an active church, appellants' claim that the disputed area was the same area referred to in an old lease agreement of their land was not tenable.

Possession of real property carries with it a presumption of ownership.

Where ownership of land is at issue, the best evidence of such ownership is found in the person who has been using the land under a claim of right without objection from other parties.

Trial court did not place undue emphasis on the testimony of one witness where it decided ownership of disputed land based not only on that witness' testimony, but on the description of land in two leases and the fact that the prevailing party had possessed and controlled the disputed land for years.

Appellants were not denied sufficient time for rebuttal where the trial court simply admonished their counsel that the purpose of rebuttal is to address issues raised by the defense rather than to repeat arguments previously raised. [17ASR2d164]

Before FONG*, Acting Associate Justice, KLEINFELD**, Acting Associate Justice, MALEATASI***, Acting Associate Justice, TAVAN'U, Chief Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Appellants, Asaua Fuimaono

  For Appellees, Togiola T.A. Tulafono

Plaintiffs-appellants appeal the Land and Titles Division of the High Court's ruling in favor of defendants-appellees that certain land in dispute is part of Asosama, land belonging to defendants-appellees' family.

In September 1988, the CongregationalChristianChurchof Alofau started building a parish hall minister's house on the land in dispute. Appellants, on behalf of the Tuato'o family, claim that the land is called Fale Sa and is part of Faleteine, land belonging to the Tuato'o family. Appellees, the Faumuina family and others, claim that the land is part of Asosama which is land belonging to appellees' family.

Appellants filed the instant lawsuit to enjoin the church and the Faumuina family from building on the land in question. The Land and Titles Division of the High Court ruled in favor of appellees that the land in dispute is part of Asosama, land belonging to the Faumuina family. Appellants appeal that ruling.

Appellants make three arguments in support of their appeal. First, they argue that the lower court's decision is clearly erroneous and contrary to the weight of the evidence. Second, appellants argue that the lower court erred in placing undue emphasis on the testimony of one witness. Finally, appellants argue that the lower court erred in not affording them sufficient opportunity for rebuttal, and thereby denied them of due process. [17ASR2d165]

According to appellants, the trial court erroneously based its conclusion that the land in question was not Fale Sa as appellants claimed, but rather was part of Asosama and therefore belonged to appellees, on the following four factors:

1. A 1904 lease of Fale Sa stated that a creek bounded the western edge of Fale Sa. No such creek is located on the western edge of the land in question, whereas two creeks are located in Faleteine which is east of the land in dispute, suggesting that Falew Sa is actually east of the subject land.

2. The fact that Fale Sa had been leased to a Moors in 1904 and later to a Partridge in 1905, and court's assumption that it was unlikely that a renter would wish to lease a small piece of land with an active church on it. The land in dispute was not large and had an active church on it.

3. The tact that the defendant Faumuina family has for several years exercised actual control over the land in dispute. For example, in 1977, Faumuina was given a permit to build a church residence on the property in dispute, and plaintiff Tuato'o did not object.

4. The case upon which plaintiffs rely to show ownership of Fale Sa, Tia v. Faumuina, 1 A.S.R. 201 (1909) (vesting title to the land Faleteine in plaintiffs, including the Tuato'o family, and vesting title to the land Asosama in defendants, the Faumuina family), did not hold that the Tuato'o family was the sole owner of Faleteine and Fale Sa since there were many plaintiffs other than the Tuato'o family in that case.

First, with respect to the placement of the creek, appellants claim that the creek was located on the east side of Fale Sa, not on the west side of Fale Sa as the court found. They state that the descriptions of Fale Sa in the leases of 1904 and 1905 place the creek on the east or Tula side of Fale Sa, and refer the court to exhibits 2 and 3. Appellants further argue that the testimony of Mr. French, their surveyor, placed the creek on the south easterly side of Fale Sa, referring to the transcript at page 23, lines 3-6. [17ASR2d166]

With respect to the court's observation that it is unlikely that the Moors and Partridges would lease a small tract of land with an active church on it, such as the land in dispute, appellants argue that there is no evidence to support the trial court's conclusion. According to appellant, the only reference to this point was made by appellees' counsel during the final argument, and no evidence was brought out during the trial to support the court's assumption. Transcript at 155:8-11.

The trial court correctly noted the undisputed fact that an active church was and is located on the land in dispute. Based on this fact, the court drew the conclusion that it was unlikely that someone would lease the land in dispute, given the presence of an active church on the land, and that it was more likely that someone would lease land on which there was an abandoned church. In support of this conclusion, the trial court pointed out that the lease of Fale Sa to Moors refers to an "old church" which suggest a church that is no longer in use. There is no error in the trial court's reasoning. Moreover, this was not the only factor that the trial court relied upon to support its decision.

With respect to the court's observation that the land in dispute has been under the actual control of the Faumuina family for many years, appellants argue that Tuato'o did not object to the Faumuina family building on the land because of his desire to preserve harmony between the Tuato'o and Faumuina families. See Appellants' Brief at 6.

Possession of real property carries with it a presumption of ownership. Puluti v. Muliuji, 4 A.S.R. 672, 674 (1965). Where the question of ownership of land is in dispute, the best evidence of ownership is found in the person who has been using the land under a claim of right without objection from other parties. Satele v. Afoa, 1 A.S.R. 424, 425 (date unknown). Given the fact that the Faumuina family had actual possession and control of the land in question, and the undisputed fact that the Tuato'o family did not object to this possession and use of the land, it is difficult to conclude that the trial court's finding was clearly erroneous.

Finally, with respect to the trial court's observation that under the 1909 decision, Tia v. Faumuina, 1 A.S.R. 201 (1909), Tuato'o is not the sole owner of Faleteine and Fale Sa, appellants argue that originally, the 1909 case had eight plaintiffs, but by the time the case went to trial, only four plaintiffs remained (Tuato'o, Tia, Salavea, and Tavea). Appellants claim that all four of these plaintiffs were members of the Tuato'o family. [17ASR2d167]

The trial court's observation that Tuato'o was not deemed the sole owner of Faleteine and Fale Sa does not materially affect its decision that appellant failed to meet their burden of showing that the land in question belonged to the Tuato'o family. From the facts produced at trial, the trial court concluded that it was more likely than not that the land in dispute was not Fale Sa land, but was part of Asosama land based on the descriptions of Fale Sa in the leases of Fale Sa to Moors and Partridge and based on the actual possession and use of the land in question for several years by the Faumuina family without objection from the Tuato'o family. This court believes that the evidence supports the trial court's findings and conclusions. Therefore, this court cannot find that the trial court's ruling was clearly erroneous.

Appellants next argue that the trial court placed undue emphasis on the testimony of one witness, Tago Sevaaetasi. This court has reviewed the opinion and order of the trial court, and finds that the trial court's ruling did not place undue emphasis on Tago's testimony. Admittedly, the trial court relied heavily on Tago's testimony, but its decision rested on several factors, including the description of Fale Sa in two leases and the Faumuina's actual possession and control of the land in question.

Moreover, the witness Tago is related to Tuato'o. One could infer that Tago would be biased in favor of appellants given the fact that he is related to appellants. Accordingly, the court finds no basis to overturn the lower court's ruling based on its reliance on the testimony of Tago Sevaaetasi.

Finally, appellants argue that the trial court erred in not affording them sufficient time for rebuttal, thereby denying them due process. The only evidence in support of this contention is the fact that the trial court admonished appellants' counsel that the purpose of rebuttal is to address issues raised by the defense, not to repeat arguments that were raised before.

The court has reviewed the record, and finds no evidence that appellants were unfairly deprived of due process in the way the trial court handled the rebuttal stage of trial.

Accordingly, the court AFFIRMS the trial court's opinion and order.

IT IS SO ORDERED.

********

*Honorable Harold M. Fong, Senior Judge. United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

**Honorable Andrew J. Kleinfeld, United States District Court for the District of Alaska, serving by designation of the Secretary of the Interior.

***Honorable Maleatasi M. Togafau, District Judge, High Court of American Samoa, serving by designation of the Secretary of the Interior.

Uiagalelei v. Ulufale,


UIAGALELEI IONA, Appellant

v.

ULUFALE SAFUE, Appellee

High Court of American Samoa
Appellate Division

AP No. 06-90

December 11 , 1990

__________

Appellate court may set aside findings of the trial court only if they are clearly erroneous.

Appellate court affirmed as not clearly erroneous the trial court finding that the grave site of appellee's parents was located on land belonging to appellee rather than appellant, based on facts that it was unlikely that appellee's family would bury a chief on land of another family when they had land undisputedly theirs a few feet away, that the grave was the only existing monument on the disputed land, and that appellee's family continually used and possessed the disputed site for almost sixty years.

When ownership of land is in dispute and there is no written record or document showing positive title, the best evidence of ownership is found in the person who has been using the land under a claim of right and without objection from other parties. [17ASR2d159]

Continuous use and possession of real property is better evidence of title than family history and tradition, since the person in possession of land is considered the true owner as against anyone but the legal owner.

Mere fact that a judge asked questions which pointed out flaws in counsel's position or is related to a family that serves one of the parties in the case does not mean he is biased or prejudiced against a particular party.

Before FONG*, Acting Associate Justice, KLEINFELD**, Acting Associate Justice, MALEATASI***, Acting Associate Justice, VAIVAO, Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Appellant, Togiola T.A. Tulafono

  For Appellee, Gata E. Gurr

Appellant-plaintiff appealed the trial court's decision that the gravesite of appellee-defendant's father and mother is located on land belonging to appellee. Appellant contended at trial that the land on which the gravesite is located belongs to appellant-plaintiff.

In 1931, appellee's father, Fuimaono Safue, passed away and was buried in the gravesite now in dispute. In 1964, appellee's mother passed away, and she was buried at the same gravesite as her husband. A rock "tia" was placed at the gravesite.

In 1984 or 1985, appellee Ulufale Safue started improving the gravesite by replacing the rocks with marble. Appellant Uiagalelei Iona objected, claiming that the land on which the grave was located belongs to his family. When Ulufale Safue refused to discontinue improving the gravesite, Uiagalelei Iona brought a lawsuit for a determination of the ownership of the land on which the gravesite is located.

[17ASR2d160] Viagalelei Iona claims that Vlufale Safue's father, Fuimaono Safue, was buried on Viagalelei (Vi) family land called "Tiapepe" with the permission of appellant's grandfather, Viagalelei Faagaoi. According to appellant, the reopening of the grave to bury appellee's mother was also done with the permission of appellant's father.

Viagalelei Iona explains that his family's land (a.k.a. Viagalelei land) is bounded on the west by land belonging to High Chief Namu and on the east by land belonging to the Sa Lemeana'i family. Appellant also contends that the eastern boundary is marked by a stream bed that comes down from the mountain and passes by a Congregational Christian Church building. According to plaintiff, the Viagalelei family gifted to appellee's father, Fuimaono Safue, the easternmost portion of the Viagalelei land from the church to the eastern boundary marked by the Sa Lemeana'i family's land. After gifting this land to appellee's family, the Viagalelei land's eastern boundary was marked by two coconut trees across from the church. See Appellant's Opening Brief at 2. Apparently, the gravesite is located on land that is either on Tiapepe or Viagalelei land or on the land that was gifted to the Vlufale family.

Defendant Vlufale Safue claims that the land on which the gravesite is located belongs to the Vlufale family. Appellee was present at the burial of his father on this land and no one objected. He was also present at the reopening of the grave for the burial of his mother and no one objected. More importantly, adjacent to the gravesite are buildings belonging to the Vlufale family and other graves of Vlufale family members.

Appellant has appealed on two grounds the trial court's decision that the land on which the gravesite is located belongs to the Vlufale family. First, appellant has argued that the trial court's decision is unsupported by the record. Second, appellant has argued that the Samoan judges should have recused themselves because of obvious bias and prejudice.

This court can set aside findings of the trial court only if they are clearly erroneous. Malaga v. Ma'e, 3 A.S.R. 518 (1957); Tiumalu v. Tiumale, 3 A.S.R. 502 (1956).

According to the trial court, the grave is located on the "malae" in Futiga. The Viagalelei family and the Vlufale family own adjoining tracts of land on the malae. The instant dispute revolves around the question whether the boundary dividing the Vigalelei land from the [17ASR2d161] Ulufale land lies a few feet to the east of the grave, as Uigalelei contends, or a few feet to the west of the grave, as Ulufale contends. See Trial Court's Opinion and Order at pp. 1-2 attached as Exhibit A to Appellant's Brief.

Both sides argued family history to show that the land on which the gravesite is located belongs to their respective families. Uiagalelei lona has claimed that the gravesite is located on land that was his family's traditional burial ground. The trial court, however, found no evidence of the existence of any Uiagalelei graves on the land in question.

There is sufficient evidence in the record to support the trial court's finding that the subject gravesite is located on land belonging to Ulufale Safue's family. First, the trial court noted that it is unlikely that a chief of one family would be buried on land of another family. Generally, the custom is to place family graves on family land, to tend to them carefully, and to rely on them as evidence of land ownership.

Second, the only existing monument on the land in question is the grave of Appellee's father. This fact suggests that the land belongs to the Ulufale family.

Third, the trial court noted that it was implausible that appellee's family would have buried their father on appellant's land, given the fact that there was land indisputably belonging to appellee's family only a few feet away from the gravesite that could have just as easily been used for this purpose.

Fourth, the trial court relied on the presumption of ownership that comes with possession of real property. Piluti v. Muliufi, 4 A.S.R. 672, 674 (1965). Where the question of ownership of land is in dispute and there is no written record or document showing positive title, the best evidence of ownership is found in the person who has been using the land under a claim of right and without objection from other parties. Satele v. Afoa, 1 A.S.R. 424, 425 (date unknown). Continuous use and possession of real property is better evidence of title than family history and tradition. Tupuola v. Moaali'itele, 1 A.S.R.2d 80 (1983). Indeed, the person in possession of land is considered the true owner as against anyone but the legal owner. Mageo v. Government, 4 A.S.R. 874, 880 (1963). [17ASR2d162]

In this case, the Ulufale family had been in possession of the land in question since 1931, when appellee's father was buried there. This continuous use and possession of the land is better evidence of ownership than appellant's reliance on family history. Therefore, the trial court had substantial grounds upon which to base its finding that the land in question was owned by appellee rather than appellant.

As to appellant's claim of bias, it was argued that the Honorable Tauanu'u's questions were unfair and prejudicial. Appellant has alleged that Judge Tauanu 'u asked questions about unwritten family history, knowing that Samoan history is not written. Appellant has further alleged that Judge Tauanu'u asked questions inferring that the cause of problems between the Uiagalelei and Ulufale families were instigated by the Uiagalelei. Appellant has also argued that Judge Mata'utia Tuiafono was biased and prejudiced against appellant because Judge Tuiafono is related to the McKenzies who serve the Ulufale.

Appellant has argued that this court should reject appellant's claims of bias because these claims were not raised on a timely fashion prior to trial.

Regardless of when these claims of bias were raised, there is no evidence to support such claims that the two Samoan judges were prejudiced or biased against appellant. A judge often asks counsel questions on points on which the judge is concerned. The mere fact that a judge's questions point out the flaws in counsel's position does not mean that the judge is biased or prejudiced against a particular party. Additionally, appellant has not produced any evidence that Judge Tuiafono's relation to the McKenzie family adversely impacted on this trial. The McKenzie family is not a party to this lawsuit, and there is no evidence, aside from such bald assertions, that the McKenzie family serves the Ulufale family.

Accordingly, having reviewed appellants arguments in support of their appeal and finding none compelling, the trial court's decision is hereby AFFIRMED.

********

*Honorable Harold M. Fong, SeniorJudge,United StatesDistrict Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

**Honorable Andrew J. Kleinfeld, District Judge, United States District Court for the District of Alaska, serving by designation of the Secretary of the Interior.

***Honorable Maleatasi M. Togafau, District Judge, High Court of American Samoa, serving by designation of the Secretary of the Interior.

Lutu v. Semeatu,


SINIRA FUIMAONO LUTU, Plaintiff

v.

MUAMUA SEMEATU and SALA SEMEATU, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 9-87

October 25, 1990

_________

Plaintiffs earlier notice to defendants that they might be occupying part of plaintiffs land did not prevent them from being good-faith improvers with respect to a particular house, when that notice concerned another building and plaintiff did not then know that the house was on her land.

Good-faith improvers are entitled to reimbursement for their actual expenses in improving the property or for the amount by which the improvements enhanced the value of the property, whichever is less.

Before REES, Associate Justice, and TAUANU'U, Chief Associate Judge.

Counsel: For Plaintiff, Afoa L.S. Lutu

  For Defendants, Charles v. Ala'ilima [17ASR2d19]

OnOctober 15, 1990, the Court held a hearing to determine whether defendants were entitled to compensation for improvements they built on the disputed property.

Defendants built a house on the land which we have held to belong to plaintiff. When they built this house the defendants appear to have believed in good faith that the land belonged to them.

The misunderstanding appears to have arisen as a result of the actions of Vincent Ah San, from whom defendants acquired their property (or, technically, with whom they signed an Agreement of Sale). The late Mr. Ah San, who was related by marriage to the plaintiff, had asked and received her permission for a Chinese man who was occupying his land to use part of her adjoining tract as well. The Chinese man grew some crops on plaintiffs tract and also had a small shack there. In 1984 or 1985 the plaintiff noticed that the Chinese man was gone and that a more substantial house was being built near where his shack had been. She found out that defendants were the ones who now occupied the land in question, and told them they were occupying her land. Defendant Muamua Semeatu insists, however, that he only occupied the land within the boundaries pointed out to him by Mr. Ah San.

Had plaintiff specifically told defendants that her claim included the spot where they were building their house, defendants would have been on notice of her claim and would not have been "good faith improvers" with respect to expenditures made after they were put on notice. See generally Roberts v. Sesepasara, 8 A.S.R.2d 124 (1988). The plaintiff herself testified, however, that at first she did not believe that the house itself encroached on her property. Rather, she was more concerned about another structure also built by the defendants, referred to by all parties as a "garage" but actually used as a residence. Only when she had her land resurveyed in 1986, well after the defendants' house now in question had been completed, did she learn that it was on her land. Accordingly, we find that the earlier notice to defendants that they might be occupying part of plaintiffs land did not prevent them from being good faith improvers with respect to the particular house for which they now seek compensation.

Defendants are entitled to reimbursement for their actual expenses in improving the property or to the amount by which the improvements enhanced the value of the property, whichever is less. See Roberts, supra, and authorities cited therein. Defendants have submitted receipts showing that they spent $7,014.10 on materials. Defendant [17ASR2d20] Muamua Semeatu also testified that he spent $3,900 on labor, including the cost of food and transportation for the carpenters, and $715 for renting a backhoe to dig two septic tanks. Although not supported by receipts, it is difficult to imagine how the defendants could possibly have gotten the work done for less. The Court therefore finds that the defendants spent $11,629.10 in improving the property.

This amount must be reduced, however, by the amount which defendants have received from the Federal Emergency Management Agency (FEMA) and or the Territorial Emergency Management Coordinating Office (TEMCO) on account of damage to the house by Hurricane Ofa early this year. Defendant Semeatu testified that he received only about $2,000 for damage to the house, although he had received about $8,000 for damage to the "garage." The Court required him to make a post-trial submission of all documents pertinent to his disaster relief payments.

Defendants appear to have received four disaster relief grants. Two of these ---$8,009 from FEMA for repairs to an unspecified house, and $4,110 from TEMCO for household furnishings and other personal property ---are in the name of defendant Muamua Semeatu. The other two checks are to defendant Sala Semeatu. One of these is a $5,739 FEMA grant for damage to a house, and the other is a $2,985 TEMCO grant for "repairing and/or rebuilding your home and/or repairing or buying personal property and furnishings." Although this evidence is sketchy and not altogether consistent with defendant's testimony, the best we can make of it is that Muamua applied for FEMA and TEMCO grants as the owner of one house and that his wife Sala applied for such grants as the owner of another. If, as Muamua testified, the check to him for roughly $8,000 was for the "garage," then the two checks to his wife for a total of $8,734 must have been for the house with which we are now concerned.

Defendant Semeatu testified that he has postponed any repairs on the house pending the outcome of the present case. Accordingly, we find that the net cost to defendants of their improvement to plaintiff’s property has been $11,629-$8,734, or $2,895.(1) Although we have no [17ASR2d21] direct evidence of the amount by which the house has enhanced the value of plaintiff’s property, we take judicial notice that a tract of land with a substantial house on it is worth at least $2,895 more than a vacant lot. Even if, as plaintiff contends, the enhanced value must be assessed as of the date of the present hearing---rather than at the time plaintiff filed suit or at the time of judgment on the merits, both of which occurred prior to the recent hurricane damage---the evidence reflects that the value of plaintiffs property has been substantially enhanced by the presence of a foundation, two septic tanks, and a large and substantially intact residential structure. We therefore hold that defendants are entitled to compensation in the amount of $2,985.

In all other respects we reaffirm our original opinion and deny defendants' motion for reconsideration.

It is so ordered.

********

1. Both the FEMA and the TEMCO grant letters speak in terms of using the grant money either for "repairs" to the damaged structure or for "rebuilding" (TEMCO) or "other essential housing needs" (FEMA). From this language we assume, although we are not certain, that plaintiffs will be permitted by FEMA and TEMCO to apply the grant money toward the building of another home. If defendants can show that they will have to return the money to the granting agencies in the event they do not use it to repair the house, they are free to do so by timely motion to amend the present order.

Lualemana; Asifoa v .


SOSENE ASIFOA and LEFOTU TUILESU, Appellants

v.

LUALEMANA E. FAOA, Appellee

High Court of American Samoa 
Appellate Division

AP No. 20-90

November 23, 1990

__________

Execution of a final judgment of the High Court will not be stayed pending appeal unless the appellate, trial, land and titles division, or Chief Justice orders a stay for cause shown upon such terms as it or he may fix. A.S.C.A. § 43.0803.

In determining whether to stay execution of a judgment pending appeal, the court considers: (1) the likelihood of appellant prevailing in the appeal, (2) whether appellant will suffer irreparable harm if a stay is not granted, (3) whether appellee will suffer irreparable harm if a stay is granted, and (4) whether the public interest would be affected by stay.

General principle of stays of injunctive relief and granting of injunctions pending appeal is preservation of the status quo pending appeal.

Where appellants had substantial commercial and subsistence plantings on certain land, the trial court judgment evicting them from such land would be stayed pending appeal, where the issue on appeal was not frivolous, trivial, or presented merely for delay, and executing judgment before appeal would destroy the status quo and harm appellant more than staying judgment pending appeal would harmappellee. [17ASR2d101]

Before FONG*, Acting Associate Justice, KLEINFELD**, Acting Associate Justice, LOGOAI, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Appellants, Charles V. Ala'ilima

  For AppelleesAfoa L.S. Lutu

This case is before us on a motion for stay of judgment pending appeal. The merits of the appeal are not yet before us.

Judgment came down August 6, 1990, in a consolidated case, numbered below as LT No. 29-86, LT No. 41-86, and LT No. 12-87. The consolidated actions concern the ownership of over 400 acres of land on and around Mount Olotele, comprising the village of A'oloau Fou and its environs. The judgment in the trial division had the effect of evicting appellants from property which they have occupied for many years. They claim, andappellees do not deny, that they have substantial commercial and subsistence plantings on the land.

The trial court on August 10 amended its judgment to allow appellants thirty days in which to harvest their crops on the Lualemana track, and subsequently granted an additional stay of execution to November 15, so that the appellate division could consider the matter, but it denied a motion for stay pending appeal.

The applicable statute reads as follows:

Pending the hearing and determination of an appeal, execution of the final judgment or order of the High Court shall not be stayed unless the appellate, trial, or land and titles division, or Chief Justice, orders a stay for cause shown and upon such terms as it or he may fix.

A.S.C.A. § 43.0803. [17ASR2d102]

The trial division did not find adequate "cause shown" for a longer stay, because the probability that the judgment would be vacated on appeal was not so high, or the hardship on the appellees so great, as to justify further delay in occupancy by the parties found to be entitled to the land.

The trial court, in accord with established authorities on stays pending appeal, drew an analogy to the four part test for preliminary injunctions: (1) likelihood that the appellant would prevail in the appeal, (2) irreparable harm to the appellant if a stay is not granted, (3) irreparable harm to appellees if a stay is granted, (4) whether the public interest would be affected by a stay. 7 J. Moore & J. Lucas, Moore's Federal Practice § 62.05 (2d ed. 1985). The trial court determined that the appeal was largely on factual rather than legal grounds, so the probability of success on the merits was not great. The trial court found that appellants would suffer greater harm than appellees if they were required to comply with the trial court judgment, and then prevailed on appeal. If no stay issued, but the appellants prevailed, they would have to move off the land which they had occupied for a long time and then would move back on, after the appellate decision. The court also found, however, that the appellants had long been on notice that they should not be occupying the land and identified a public interest concern in avoiding the encouragement of appeals for purposes of delay.

The appeal is likely to focus on the adequacy of notice. This issue is in large part factual, so the trial court reasonably estimated the probability of success in the appeal as "less than fifty-fifty."  The controlling statute provides:

The findings of the trial, probate and land and titles division of the High Court may not be set aside by the appellate division unless clearly erroneous.

A.S.C.A. §§ 43.0801(b). The "clearly erroneous" standard does indeed generally compel the conclusion that an appeal on factual grounds is an uphill battle.

The notice issue in this case, however, does not appear to be frivolous or trivial. We do not think that the issue on appeal is one of such little weight that the appeal can be characterized as being taken merely for purposes of delay. We think that the trial court's comment, that a stay would "encourage the present litigants and others to prosecute appeals to no likely effect than delay," went to the fourth branch of the [17ASR2d103] test, public interest, rather than the first branch, probability of success on the merits. We agree with the trial court's concern, but it is not a conclusive policy consideration where the issue on appeal is legitimate.

The general principal of stays of injunctive relief and granting of injunctions pending appeal is preservation of the status quo pending appeal. 7 J. Moore & J. Lucas, Moore's Federal Practice § 62.05 (2d ed. 1985). For example, the discretion of a United States District Court under Federal Rule of Civil Procedure 62(c) "is strictly limited to the preservation of the status quo pending appeal.” Id. In the context of injunctions pending appeal, another treatise notes that injunctions to continue the status quo pending appeal may be desirable. 11 Wright & Miller, Federal Practice and Procedure § 2904.

Though the question is close, we have concluded that the trial division exceeded the proper boundaries of discretion in denying the stay pending appeal, and we have determined that the trial court's judgment should be stayed pending appeal. The importance of preserving the status quo pending appeal persuades us that a stay is appropriate. Rightly or wrongly, the appellants have occupied the land and engaged in agricultural pursuits upon it for many years. Appellees' stakes in occupancy are not very much affected by whether they obtain it this year or next year, but appellants' interests will be very greatly affected. Appellants' probability of success on the merits, while affected by the "clearly erroneous" standard, nevertheless is not so low as to outweigh the interest in avoiding irreparable harm to the appellants.

At oral argument, we were concerned with the possible need for posting security pending the stay, because appellees will be wrongfully deprived of the value of one year of agriculture on the land, if the judgment is affirmed. We have determined, however, not to require the posting of security. The statute does not require security. The briefs do not focus upon this issue. Security ordinarily has not been required for stays pending appeal in land disputes such as this one in the High Court. The trial division's opinion and order of August 6 noted the absence of sufficient evidence to estimate damages on related questions, and the trial division's October 23 opinion regarding the stay noted that the court had not been presented with evidence sufficient to assess the monetary difference between the costs of moving off the land and back on again if appellants prevail, and the costs of one year's wrongful deprivation if appellees prevail. [17ASR2d104]

Accordingly, it is ordered that the stay of enforcement of the trial division's judgment is extended to November 30, 1991, or the rendering of a decision on the appeal, whichever comes first. The trial court has discretion to modify or supplement the terms of this stay, if in its .Judgment modification is needed to preserve the status quo and prevent waste.

********

*Honorable Harold M. Fong, Senior Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

**Honorable Andrew J. Kleinfeld, District Judge, United States District Court for the District of Alaska, serving by designation of the Secretary of the Interior.

Lualemana; Asifoa v.


SOSENE ASIFOA and LEFOTU TUILESU, Appellants

v.

LUALEMANA E. FAOA, Appellee

High Court of American Samoa

Appellate Division

AP No. 20-90

October 23, 1990

__________

In deciding a motion for a stay of judgment pending a decision on the appeal, the Justice of the High Court who did not sit on the case at the trial court level ordinarily hears the motion.

In the absence of a Justice qualified to sit as a member of the Appellate Division, a motion for a stay of judgment was properly referred to the judge who presided at trial. A.C .R. 27(c). Rule 4.[17ASR2d11]

A court should not automatically or casually grant a stay of judgment pending appeal; the court's discretion to grant a stay should be exercised only if cause is shown. A.S.C.A. §§ 43.0803; T.C.R.C.P. 62(a), (c); A.C.R. 8.

To minimize the costs imposed on the prevailing party by a delay in executing a money judgment, a court can require a supersedeas bond and award post-judgment interest. T.C.R.C.P.62(d).

The decision to grant or deny a stay pending appeal, similar to that on a preliminary injunction, depends partly on the "balance of equities" and partly on the likelihood that the appeal will be successful. T.C.R.C.P.62(a),(c).

An injunction will be stayed in the following situations: there is a strong chance the judgment will be vacated on appeal; compliance with the judgment during the pendency of the appeal would amount to an effective denial of the right to appeal or would otherwise work extraordinary hardship on the appellant; little or no hardship would be imposed on adverse parties by appellant's non-compliance; or some combination of these conditions overcomes the presumption in favor of allowing each party the present enjoyment of his lawful rights.

In assessing the likelihood of success on appeal, a court may stay an injunction when it has enough doubt about the substantive correctness of its decision, such as when new and difficult questions of law are involved.

Before REES, Associate Justice.

Counsel: For Appellants, Charles V. Ala'ilima

  For AppelleeAfoa L.S. Lutu

On Motion for Stay of Execution:

On August 6, 1990, the trial court rendered judgment for plaintiff/appellee Lualemana, providing in pertinent part that defendant/appellants Asifoa (Atualevao) and Lefotu were permanently enjoined from further activities within a tract of land registered in 1961 as the property of LualemanaSee Lualemana v. Atualevao16 A.S.R.2d 34 (1990).

On August 10, 1990, upon motion by defendant/appellants, the Court amended its judgment to allow defendant/appellants thirty days in which to harvest any crops belonging to them within the Lualemana tract.

Defendant/appellants subsequently moved for reconsideration of the trial court judgment and for a further stay of execution upon the judgment. On September 4, 1990, the Court denied the motion to [17ASR2d12]reconsider, but did grant an additional thirty-day stay of execution so as to allow defendant/appellants to move in the Appellate Division for a stay of judgment pending appeal.

Defendant/appellants then filed a notice of appeal and subsequently filed the present motion for a stay pending a decision on the appeal. Chief Justice Kruse, as the Justice of the High Court who did not sit on the case at the trial court level, would ordinarily have heard the motion. The Chief Justice, however, disqualified himself from participation in the case. In the absence of a resident Justice qualified to sit as a member of the Appellate Division, the motion was therefore referred to the judge who presided at trial. See Appellate Court Rule 27(c), as amended.

This is, therefore, the third time the writer of the present opinion has had to consider whether to grant or extend a stay of execution in favor of the present appellants. At the hearing on this motion the Court suggested to counsel for appellants and appellee that the best course would be to deny the motion for a stay pending appeal, for the same reasons it was denied when presented to the trial court; to write an opinion setting forth those reasons; and to grant a brief additional stay so as to allow for review of this decision by the Appellate Division at its forthcoming regular session.

The trial court's reasons for denying a stay pending appeal are as follows:

A court should not grant a stay of judgment pending appeal automatically or casually. To do so would encourage losing litigants to file appeals in which they had no serious hope of prevailing, simply in order to postpone the effective date of judgment. The court's discretion to grant a stay should therefore be exercised only "for cause shown." A.S.C.A. § 43.0803; see also Trial Court Rule of Civil Procedure (T.C.R.C.P.) 62(a),(c), Appellate Court Rule 8. Such cause must presumably amount to more than just that the appellants, should they eventually prevail in their appeal, will have been inconvenienced by having had to comply in the meantime with the trial court's judgment.

When a judgment is for money alone, the costs imposed on the prevailing party by a delay in execution can be minimized by requiring a supersedeas bond and by awarding post-judgment interest in an amount equivalent to the value of the use of the money. See T.C.R.C.P. 62(d). Injunctive actions do not lend themselves to this sort of solution; rather, [17ASR2d13] the decision to grant or deny a stay pending appeal is similar to that on a preliminary injunction, depending partly on the "balance of equities" and partly on the likelihood that the appeal will be successful. See T.C.R.C.P. 62(a),(c); cf. Belcher v. Birmingham Trust Nat'l Bank, 395 F.2d 685 (5th Cir. 1968); 6 J. Moore, W. Taggart & J.Wicker, Moore's Federal Practice' 62.05 (2d ed. 1985).

An injunction will be stayed when it appears to the trial or appellate court that there is a strong chance the judgment will be vacated on appeal (e.g., when the correctness of the trial court decision depends on a question of law that can fairly be characterized as a close one); that compliance with the judgment during the pendency of the appeal would so change the status quo as to amount to an effective denial of the right to appeal, or would otherwise work extraordinary hardship on the appellant; that little or no hardship would be imposed on adverse parties by appellant's noncompliance; or that some combination of these conditions overcomes the presumption in favor of allowing each party the present enjoyment of what has been held to be his lawful rights. Cf. Belchersupra; Moore's Federal Practice, supra, and authorities cited therein.

The judgment in the present case was to put a tract of agricultural land into the possession of the person held to be its owner. It is unlikely that the appeal can be heard and decided until late next year. Either appellants orappellee, whichever should ultimately prevail, will have suffered palpable damage should they be deprived of the use of the land for the next year. From a logistical standpoint it is clear that appellants, who would have to vacate the land and then move back on again in the event they should ultimately prevail, would be more substantially injured than would the appellee by having to wait one more year to be put back into possession. The Court has not, however, been presented with sufficient evidence from which to assess this difference in monetary terms; specifically, it does not appear whether the transaction costs of moving from one planting area to another would exceed the market value of a year's rental on this land. It does not appear that the injunction would require appellants to move any houses or other substantial structures, or that appellee threatens to destroy perennial crops (if any) on the land.

In assessing the "balance of equities, " moreover, it must be noted that the parties' differing logistical circumstances stem largely from differences in their own behavior. The trial record reflects that the dispute over the tract now in question has been a fairly active one for [17ASR2d14] about twenty years. During this time appellee and his two predecessors in title have tended to assert their claims in court, whereas appellants have expanded their plantations despite having long been on notice that these plantations were on land that had been registered as the property of the appellee. Appellants have acted vigorously on, and profited handsomely from, the adage that possession is nine-tenths of the law. It may be time for some other principle to come to the fore.

This leads to the question of the likelihood of success on appeal. Although a trial judge will tend to assess every appellant's chances at something less than fifty-fifty, it remains possible to make some distinctions. "In cases in which the court has moved into uncharted areas, it may be doubtful enough about the substantive correctness of its decision to stay an injunctive order.” Moore's Federal Practice' 62.05, n.16. Indeed, even a decision that presents no particularly new or mysterious questions of law may yet present difficult ones on which reasonable people can differ.

The present appeal, however, appears to rest squarely on a quarrel with the trial court's view of the facts. The memorandum accompanying the present motion makes it clear that the error of law alleged by appellants---that the Court should have found appellee's registration of the land invalid because it was posted in the wrong village---depends entirely on appellants' contention that "the trial court was clearly erroneous in finding that this land was part of Aasu." If the land was indeed part of Aasu, then the notice was properly posted and the registration is valid even if appellants' legal arguments are otherwise correct. Appellants may sincerely disagree with this finding. For the reasons set forth in the trial court opinion, however, they will be hard pressed to show on appeal that it was without substantial support in the record. Accordingly, their chances of prevailing on appeal must be assessed as slight.

The principal effects of granting a stay of the injunction pending appeal, therefore, would be (1) to allocate next year's profits from the use of the land to parties who are extremely unlikely to be held to own it; and (2) to encourage the present litigants and others to prosecute appeals to no likely effect other than delay. Accordingly, the stay pending appeal is denied.

In accordance with Appellate Court Rule 27(c), this opinion will be referred for review by the Appellate Division at its regular session to be held next week. To allow for such review, an additional stay will be[17ASR2d15] granted until November 15, 1990. This brings the time during which the judgment has been stayed to over 100 days. Appellants should be prepared to vacate promptly in the event this opinion is not reversed by the Appellate Division.

Should appellants wish to present arguments to the Appellate Division beyond those already presented in their memorandum, they should do so no later than 4:00 p.m. on October 26, 1990. Should appellee wish to file a response to any such additional arguments, he should do so no later than 4:00 p.m. on October 30. Should the Appellate Division wish to hear oral argument on this motion, counsel will be notified by October 30, and argument will be set for November 1.

It is so Ordered.

********

Lualemana v. Asifoa,


LUALEMANA E. FAOA, Plaintiff

v.

SOSENE ASIFOA and LEFOTU TUILESU, Defendants

LUALEMANA E. FAOA for LUALEMANA FAMILY and 
VILLAGE OF A ' ASU, and TUITELE K.A. LE'OSO for 
VILLAGE OF LEONE, Plaintiffs/Objectors

v.

A'OLOAU VILLAGE COUNCIL, Defendant/Claimant

A.U. FUIMAONO and the VILLAGE OF A'OLOAU, Plaintiffs

v.

TOLUAO FETALAIGA, Defendant

TUANAITAU TUIA, AVA VILI, TOLUAO FETALAIGA for 
themselves and the 
VILLAGE OF PAVA'lA'IIntervenors

LEPUAPUA STANLEY MASSEY UTU, for himself and on behalf 
of the UTU FAMILY, Intervenor

TUILEFANO VAELAA, TUIAGAMOA, TUIOLEMOTU, and 
TUITASI for "AlGA AITULAGI," Intervenors

High Court of American Samoa 
Land and Titles Division

[17ASR2d152]

LT No. 29-86 
LT No. 41-86 
LT No. 12-87

December 10, 1990

__________

The filing of a motion for new trial within ten days of the announcement of judgment is a mandatory prerequisite to appeal. A.S.C.A. § 43.0802(a).

A motion for a new trial may be styled a motion for "reconsideration", as long as it is filed within the ten-day deadline and clearly apprises the trial court of the particular errors claimed in regards to its decision.

Although an untimely motion for reconsideration or new trial is ordinarily denied for lack of jurisdiction, the court construed it as a motion for relief from judgment because the movant claimed that he had not been represented by counsel at trial and had therefore not been notified of the judgment against him. T.C.R.C.P. Rule 60(b).

A motion for reconsideration under Rule 60(b) cannot to be used as a substitute for appeal by one who has missed the deadline for appeal. T.C.R.C.P. 60(b).

Although courts have granted relief from judgment when a party did not learn of the judgment prior to the appeal deadline through some fault of the clerk or another court official, it is an abuse of discretion for the court to grant relief when the party missed the appeal deadline through his own or his lawyers fault.

A Rule 60(b) motion cannot be used to save a litigant from strategic choices that later turn out to be unwise.

Before REES, Associate Justice, TAUANU'U, Chief Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Lualemana and TuiteleAfoa L.S. Lutu

  For Asifoa and Tuilesu, Charles V. Ala'ilima

  For Fuimaono and the village of A'oloauGata E. Gurr

  For ToluaoFai'ivae A. Galea'i

  For Tuana'itauTau'ese P.F. Sunia

  For UtuTogiola T.A. Tulafono

  For Aiga AitulagiTuiasosopo Mariota II

On Motion for Reconsideration or Relief From Judgment:

This motion for reconsideration was filed thirty-five days after the entry of judgment, which is twenty-five days later than the statutory deadline. A.S.C.A. § 43.0802(a) provides that the filing of a motion for[17ASR2d153] new trial within ten days of the announcement of judgment is a mandatory prerequisite to appeal. Such a motion may be styled a motion for "reconsideration" rather than for new trial so long as it is filed within the ten-day deadline and clearly apprises the trial court of the particular errors assigned to its decision.

An untimely motion for reconsideration or new trial should ordinarily be denied for want of jurisdiction. Because the present movantToluao Fetalaiga, maintained that he had not been represented by counsel at trial and had therefore not been notified of the judgment against him, we construed it as a motion for relief from judgment under T.C.R.C.P. Rule 60(b) and set it for hearing as such.

At the hearing we heard Toluao's testimony. The record also contains documentary evidence concerning Toluao's representation by counsel. The facts are as follows:

1) Toluao is a matai of the village of Pava'ia'i. He originally entered these consolidated cases in 1986, as an intervenor in LT No. 29- 86. This was an action brought by Lualemana, the principal chief of the neighboring village of A'asu, against certain residents of yet another neighboring village, called A'oloau, whom Lualemana said were occupying his land.

2) Toluao's intervention in LT No. 29-86 was not motivated by any dispute with either Lualemana or the named defendants in the case. Rather, it was part of an effort to litigate an altogether different dispute with A.U.Fuimaono, principal matai of A'oloauFuimaono had previously intervened in LT No. 29-86 as a defendant "for himself and on behalf of the village of A'oloau," to assert the proposition that there was a well-settled boundary between the two villages and that Lualemana, not the A'oloau defendants, was on the wrong side of the line.

3) Fuimaono and the various matai composing the Village Council of A'oloau had also offered a survey for registration in the office of the Territorial Registrar, purporting to encompass the boundaries of the village and to be "communal land of the village of A'oloau." Several people had objected to this survey within the statutory sixty-day time limit for such objections, and the dispute had been referred to the High Court where it was designated LT No.41-86. Neither Toluao nor anyone from the village of Pava'ia'i had objected. Pava'ia'i did, however, regard some of the land within the A'oloau survey (an area [17ASR2d154] called "Lago") as really being in Pava'ia'i, and Toluao had begun to plant crops on part of this land. (The other parties maintained that Toluao had only recently moved into the area, and at trial we found this to be the case.) It was in order to litigate this disagreement (the registration by A'oloau including "Lago") that Toluao and two other Pava'ia'i chiefs sought to intervene in LT No. 29-86 (the injunctive action having nothing to do with "Lago"). They appeared "for themselves and the village of Pava'ia'i."

4) Toluao and his two co-applicants for intervention were represented by counsel Albert Mailo. The motion to intervene was granted without objection by any party.

5) In 1987 Fuimaono brought a separate injunctive action against ToluaoFuimaono again appeared "for himself and on behalf of the village and people of A'oloau." The complaint alleged that Toluao had recently begun occupying land belonging to various A'oloau people within the area called "Lago" and destroying their crops. This dispute was precisely the one that had caused Toluao and the other two Pava'ia'i chiefs to intervene in LT No. 29-86. Toluao was again represented by counsel Mailo, who filed an answer and appeared at various pre-trial hearings. This new case was designated LT No. 12-87.

6) In January 1988 the three cases were consolidated and set for trial.

7) Various other parties were subsequently allowed to intervene. The only one that matters for the purpose of this motion is the Utu family of A'oloau. They alleged that they owned land in the "Lago" area; that these lands were within the survey offered by the Village of A'oloau but in fact belonged to the Utu family rather than to the entire village; and that Toluao had recently begun going on their land and destroying their crops.

8) The trial was continued several times. In pleadings having to do with these continuations and other pre-trial matters, counsel Mailo sometimes referred to himself as "counsel for. ..Tuana'itau TuiaAva, [and] Toluao" (the three named Pava'ia'i chiefs) and sometimes simply as "counsel for Pava'ia'i. " This apparently reflected an agreement among Toluao, his two co-intervenors, and the rest of the Pava'ia'i Village Council that they would litigate the case ''as a village." It is clear from Toluao's testimony at the recent hearing that he agreed to this arrangement, although he appears to have been the only Pava'ia'i party [17ASR2d155] who actually occupied any land in the disputed area. According to the arrangement, the party through whom "the village" communicated with its counsel was Tuana'itau Tuia.

9) In 1989 counsel Mailo moved to withdraw as counsel for the Pava'ia'i parties and for some other parties he had been representing. He appended a consent form signed by several clients, including Toluao, and certified that he had "contacted his clients about it and they will retain new counsel. " The Court granted the motion, contingent on the parties' actually retaining new counsel.

10) Later in 1989 counsel Tau'ese P. Sunia entered an appearance on behalf of "Tuia and the Village of Pava'ia'i." Toluao testified that this was also pursuant to the arrangement whereby the various Pava'ia'i parties would litigate ''as a village" and that Tuia would be the one actually handling the litigation.

11) The case was finally tried in May 1989. The Pava'ia'i parties put on two witnesses, Tuana'itau Tuia and an elderly chief of Pava'ia'i. These witnesses testified to the effect that "Lago" had long been part of Pava'ia'i and that parts of it had long been occupied by Toluao and other Pava'ia'i people. Witnesses for other parties testified that Toluao had only recently begun moving into the area.

12) At the recent hearing Toluao testified that he had been present throughout the trial of the consolidated cases. He said he had wanted to testify at the trial and had talked to Tuana'itau Tuia and counsel Tau'ese about it, but that they had insisted it would be better just to present the testimony of Tuana'itau (the "sa'o of the village" and also the Speaker of the territorial House of Representatives) and the elderly chief PagofieToluaoacquiesced in this decision.

13) During the trial the Pava'ia'i parties made a stipulation with the Utu family. It was signed by Toluao, by Tuana'itau, and by counsel Tau'ese as "Attorney for Tuana'itau F. TuiaToluao Fetalaiga and all the Pava'ia'iVillage Claimants." At the hearing on the present motion Toluao stated that he had not really agreed with the stipulation and had had no idea how much land it conceded to the Utu family, but had signed at the request ofTuana'itau.

14) The Court allowed counsel three weeks for post-trial submissions and then took the case under advisement. A decision was rendered on August 6, 1990. The Court held that the area called "Lago[17ASR2d156]had been occupied by various families of A'oloau for about forty years and that Pava'ia'i had only recently begun to assert or reassert its claim. Specifically, the Court held that Toluao had only begun to occupy this area in the mid-1980s and had thereby displaced the plantations of various A'oloau families. Toluao was enjoined from further activities in the area.

15) The Clerk of Court immediately gave copies of the decision to all counsel, including counsel Tau'ese. Counsel Tau'ese then consulted with Tuana'itau Tuia. It appears that Tuana'itau did not notify Toluao, who was then on an off-island trip. It is not clear whether Tuana'itau consulted with other members of the Village Council. In any event, after his consultation with Tuana'itau about the decision, counsel Tau'ese did not file a motion to reconsider on behalf of the Pava'ia'i parties.

16) We do not know exactly when Toluao did find out about the decision. About a month after the decision was rendered, a person who had been occupying land in the area by permission of Toluao wrote a long letter to one of the attorneys in the case complaining about the decision and asking if there was anything he could do about it. A few days later the present "Motion to Reconsider" was filed by yet another counsel, who said he had not talked to Toluao about it but had talked to members of his family.

It appears from this evidence that Toluao is asking the Court to relieve him not of the consequences of mistake, inadvertence, or excusable neglect, but of a deliberate strategic decision he made early in the course of this litigation. This was the decision to litigate "as a village" and to let Tuana'itau consult with counsel and make the decisions.

The perceived advantages of this arrangement were presumably that Toluao would not have to retain his own counsel; that since A'oloau was litigating "as a village" on behalf of Toluao's rival claimants in the area, it might be strategically wise to make it clear that the whole village council of Pava'ia'i was behind Toluao's claim; and that, under the circumstances, it might be wise to bolster Toluao's claim based on occupation (which everyone else in the neighborhood insisted had begun only recently) by subsuming it within a broader historical claim by Pava'ia'i[17ASR2d157]

Toluao may also have believed that Tuana'itau was a man experienced in these matters who could handle the litigation more effectively than Toluao himself would be able to do. Toluao had made at least one similar decision in another recent land dispute, representing to the Court that the Toluao family and the Tuana'itau family were "part of the same family" and that Tuana'itau was the sa'o of the whole family; the purpose of this representation was to enable Tuana'itau to represent the interests of both families "pro se." The Court was told at that time that Toluao could not find an affordable lawyer (counsel Mailo having withdrawn in that case as in this one) and did not wish to represent himself. See Leomiti v. Toluao, LT No.35-82.

Nor is it at all clear that Tuana'itau committed "neglect" by not consulting with Toluao about his decision not to move for reconsideration. Although prudence would ordinarily dictate such consultation, Toluao does not allege that it was any part of the Pava'ia'i parties' prior arrangement. Indeed, it appears that Tuana'itau had consulted with Toluao during the course of the litigation only when he needed Toluao's signature on something; yetToluao had not sought to terminate the arrangement---as he was free to do at any time during the litigation by retaining independent counselor by notifying the Court that he wished to proceed pro se---and had even gone along with Tuana'itau's decisions that he, Toluao, should not testify and that he should sign the Utu stipulation. Toluao evidently knew that counsel Tau'ese would consult only with Tuana'itau when the Court issued its decision. He does not allege in support of the present motion that he told Tuana'itau he wished to be consulted about whether to move for reconsideration, or even that he left Tuana'itau or counsel Tau'ese any information about how to get in touch with him while he was off-island.

A motion for reconsideration under Rule 60(b) cannot to be used as a substitute for appeal by one who has missed the deadline for appeal. Although courts have made exceptions to this rule when the party did not learn of the judgment prior to the appeal deadline through some fault of the clerk or another court official, it is an abuse of discretion for the court to use relief from judgment to allow an appeal where the party missed the deadline through his own fault or through the fault of his lawyer.  Spika v. Village of Lombard, 763 F.2d 282, 285 (7th Cir. 1985), and authorities cited therein.

Nor can a Rule 60(b) motion "be employed simply to rescue a litigant from strategic choices that later turn out to be improvident." [17ASR2d158] Good Luck Nursing Home, Inc., v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980).

We conclude that Toluao was represented by counsel at all times during the litigation, but voluntarily entered into an arrangement whereby a single counsel would represent all the named Pava'ia'i parties and would deal only with Tuana'itau. Having chosen thus to subsume his claim within that of the village and to leave its fate in the hands of the village's principal spokesman, Toluao now seeks relief from a decision made by this agent. Such relief cannot be granted.

Accordingly, the motion is denied. It is so Ordered.

********

Leapagatele v. Nyel,


LEAPAGATELE KESI and SAVALIGA MASUNU LAUPUA, for
themselves and on behalf of the LEAPAGATELE FAMILY of
Nu'uuli, Plaintiffs

v.

SIAOSI NYEL, KATELINA NYEL, TUI MASEALII, and
MATIVA MASEALII, Defendants

High Court of American Samoa
Trial Division

LT No. 35-90

December 17, 1990

__________

An matai absent from American Samoa may be removed through a petition process. A.S.C.A. § 1.0412. [17ASR2d202]

If evicted by the true owner, a person who made improvements on the land in the good-faith belief that he was the owner or that the owner had authorized him to build the improvements is entitled to compensation for their value.

The measure of compensation to a good-faith improver is the lesser of the actual cost of the improvements or the amount by which they have enhanced the value of the property.

A person is not entitled to compensation for improvements when he could not have believed in good faith that he had the permission of the landowner.

As to the cost of the improvements and the amount by which they enhanced the property's value, if one party submits evidence which is clearly unreasonable, the court may accept the other party's evidence as conclusive.

Even if a party's counsel is being paid by someone else, his obligation is to represent that party and not the person making the payments.

Before REES, Associate Justice, LOGOAI, Associate Judge, and MAILO, Associate Judge.

Counsel: For Plaintiffs, Gata E. Gurr

  For Defendants, Utu Singege R.M.

Leapagatele Kesi is the senior matai of the Leapagatele family. In or around 1976 he moved to the United States, ostensibly for medical reasons. Either at this time or at some time thereafter Leapagatele designated his nephew, Savaliga Masunu Laupua, to handle family affairs in his absence. Leapagatele still spends most of his time in theUnited States but visitsSamoa several times a year.

Leapagatele has an older brother, Isumu. The two brothers do not get along. This longstanding disagreement appears to have been at least part of the reason for the designation of Masunu---who is not a registered matai and who would have been in his twenties in 1976---as Leapagatele's local representative.

Isumu, for his part, obviously resents the fact that his brother is the family matai. He was the only witness for the defendants at trial, and he responded to several questions about his apparent usurpation of the function of the matai by reference to his status as the elder brother.

At some time between 1976 and 1978, Isumu invited defendants Siaosi and Katelina Nyel to come live on Leapagatele communal land. The Nyels are from Western Samoa; one or the other of them is evidently related to Isumu (and therefore also to Leapagatele Kesi) on his [17ASR2d203] mother's side. Neither of them, however, is a blood member of the Leapagatele family, and they do not have any traditional right to live on Leapagatele communal land. It appears that Isumu invited them without consulting Leapagatele; he justifies this on the ground that Leapagatele was in the United States and that he, Isumu, is the elder brother. In or around 1978 the Nyels cleared some land and built a house.

In the early 1980s Leapagatele Kesi noticed the Nyels on the land and ordered them to leave. They referred him to Isumu. Isumu denies that he and Leapagatele ever discussed the matter; Leapagatele says there were several meetings about it at the Office of Samoan Affairs during 1982 or 1983. In any event, the Nyels did not leave.

A year or two ago Isumu invited the second set of defendants, Tui and Mativa Masealii, onto the land. Like the Nyels, they are not blood members of the Leapagatele family. They also built a house. It appears that this was a "temporary" house which has been substantially improved since the recent hurricane.

After the hurricane, in addition to repairing their old houses, each of the two couples who are defendants in this action also secured government assistance to build an entirely new house on Leapagatele family land. These houses were built without the permission of Leapagatele; the building permits were signed by Isumu.

This action to evict the defendants and to enjoin further construction on family land was filed in June. A preliminary injunction against further construction of the unfinished houses was issued in July. It appears, however, that the defendants completed the houses despite the Court's order.

Isumu insists that the defendants have a right to stay on the land, notwithstanding the wishes of Leapagatele. He argues that they are connected to the family, although not blood members of it; that he, the elder brother of the matai, has invited them onto the land; and that they have rendered tautua to the family. This tautua has been rendered by providing goods, services, and money to Isumu, who then makes contributions to various traditional events on behalf of the family. Isumu has a matai title from his mother's family in Western Samoa; although this does not make him a matai of the Leapagatele family or of the Village of Nu'uuli, he did register the title with the office of the Territorial Registrar before the matai registry was closed in 1969. Isumu refuses to render tautua to the family through the untitled nephew as [17ASR2d204] directed by Leapagatele. Isumu says he has directed the defendants to render service to Leapagatele personally when Leapagatele is on island, but that such service has been refused.

Isumu's complaints about the extended absence of Leapagatele and the irregular way in which he has been handling family affairs during his absence might have been properly raised, and might still be raised, by way of a petition to remove the matai. See A.S.C.A. § 1.0412. Instead, Isumu decided to take the law into his own hands by setting up a sort of provisional government. He exercised authority properly belonging to the sa'o of the family with respect to land and traditional events, although he knew this was contrary to the wishes of the sa'o. He also illegally signed building permits in which he falsely represented himself as the "land owner."

We sympathize with the defendants, who have relied to their detriment on Isumu's representations that he has authority over this land. Such reliance was probably reasonable during the 1970s: Leapagatele was away, Isumu was his brother, and the defendants cannot be presumed to know about the disagreements within the family. At least since the early 1980s, however, the Nyel defendants were on notice that Isumu had been misrepresenting his authority over family land and that the person who really did have the authority wanted them out. The evidence further reflects that by the time the Maseali'i defendants arrived a year or two ago, the rupture between Leapagatele and Isumu was so open and of such long standing that anyone living in the family would have known about it. (For one thing, at recent traditional events there have been two separate presentations on behalf of the Leapagatele family: an "official" one offered by Leapagatele or his surrogate Masunu, and a "provisional" one offered by Isumu.)

We therefore find that the defendants have no traditional right to reside on Leapagatele land, have no permission to live there by anyone with authority to give such permission, and since the early 1980s cannot have reasonably believed that they had such permission. The request for eviction must therefore be granted.

A person who is evicted from land by the true owner, but who made improvements on the land in the good faith belief that he was the owner (or, as in this case, that the owner had authorized him to build the improvements) is entitled to compensation for the value of his improvements. The measure of compensation is the lesser of two amounts: (1) the actual cost of the improvements or (2) the amount by [17ASR2d205] which they have enhanced the value of the property. See Roberts v. Sesepasara, 8 A.S.R.2d 124 (1988), and authorities cited therein.

With respect to the one house that was built some years ago, the Nyel defendants are entitled to such compensation. Or, if they prefer, they are entitled to remove the house. The defendants are not entitled to compensation for the three houses that were built recently, when the defendants could not have believed in good faith that they had the permission of the landowner. They may either remove these houses or abandon them to Leapagatele.

Because removal of the houses is likely to be expensive and wasteful, it would be better for everyone if the two sides agreed on a fair price for all four houses and Leapagatele purchased them from the defendants. In case the parties cannot reach such an agreement, the defendants have sixty days in which to remove the three houses. If they do not, these houses will become the property of Leapagatele.

With respect to the Nyels' house for which they are entitled to compensation (the older of their two houses), both plaintiff and the Nyel defendants should submit to the Court within thirty days documentary evidence (affidavits, receipts, etc.) of (1) what it cost to build this house and (2) the amount by which it has enhanced the value of the property. Care should be taken to ensure that estimates of cost or value are reasonable; if one party submits evidence that is clearly unreasonable, the Court may accept the other party's evidence as conclusive. The Court mayor may not order a further hearing after receiving this documentary evidence. (If the defendants would prefer to remove this house, they should so notify the Court.)

We note that the defendants may have a cause of action against Isumu for any losses they incur as a result of our decision in this case. We note further that defendants' counsel, although he may have been retained and paid by Isumu, has an obligation to represent the defendants and not Isumu. Counsel should advise the defendants about any rights they may have against Isumu.

The petition for eviction is granted. Defendants are ordered to remove themselves and their property from the land within sixty days.

It is so Ordered.

********

Lealaimatafao v. Misiaita,


LEALAIMATAFAO MASE, on behalf of
the LEALAIMATAFAO FAMILY, Plaintiff

v.

MISIAITA RUTA, VAILOA MATAAFA and members
of the LETULIGASENOA FAMILY, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 46-89

November 29, 1990

__________

Where plaintiff offered land for registration which was not finally registered until a dispute with an objector was settled seven years later, defendant's intervening registration of land which partly overlapped the land claimed in plaintiff's pending registration was void to the extent of the overlap, since defendant had not timely objected to plaintiff's initial offer of registration of the land. A.S.C.A. § 37.0103.

Party who does not timely object to another's offer to register land cannot later claim such land by filing a notice of adverse claim or by offering to and registering title to such land. A.S.C.A. §§ 37.0103, 37.0101(b).

Since land may not be registered where there are unlitigated or unresolved competing claims (including pending lawsuits regarding registration of the same property), the Territorial Registrar must deny such registration. A.S.C.A. § 37.0101(b).

Any registration of land regarding which there are unlitigated or unresolved competing claims (including pending lawsuits regarding registration of the same property) is void and may be ordered cancelled.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Plaintiff, Charles V. Ala'ilima

  For Defendant Misiaita Iuta, Togiola T .A. Tulafono [17ASR2d111]

Facts

I. Lealaimatafao's Claim "Lepuapua"

On June 6, 1978, plaintiff, the late Lealairnatafao Mase, senior matai of the Lealairnatafao family of Iliili, offered for registration with the Territorial Registrar's office, pursuant to A.S.C.A. §§ 37.0101 et seq., his family's communal claim to a certain portion of land he refers to as "Lepuapua." The claim comprises 3.614 acres, more or less, and is more particularly described in plaintiffs survey R.P.S. No. 70-8-77. The offer was duly posted by the Territorial Registrar from June 9, 1978 for the requisite 60-day statutory period. See A.S.C.A. § 37.0103.(1) However, the claim attracted the timely objection of a Filimaua L, Ofoia, a member of plaintiffs family, and under memorandum dated August 29, 1978, the Territorial Registrar referred the matter to the Office of Samoan Affairs for mediation in accordance with the requirements A.S.C.A. § 43.0302. The parties met at the Office of Samoan Affairs on August 29, 1978, and on March 20, 1979. The result of the meetings was a consensus by the parties to attempt an extra-judicial resolution to their differences. Eventually, Filimaua Ofoia sent written notice, datedJune 20, 1985, to the Territorial Registrar, advising the withdrawal of her objection. Consequently, the plaintiffs land claim was finally registered by the Territorial Registrar onMay 5, 1986.

II. Misiaita Iuta's Claim "Gaoa"

On October 25, 1983, Misiaita Iuta offered for registration his individually owned claim to a certain tract of land he calls "Gaoa," containing some 1.32 acres, more or less, as more particularly described in his survey R.P.S. No.13-13-83. The claim was duly posted for the 60-day statutory period; however, this claim was free from objection. [17ASR2d112] The Territorial Registrar then accepted the offer for the registration of "Gaoa."

III The Dispute(2)

Mr. L.P. French, a registered surveyor, certified that "Lepuapua" and "Gaoa" actually overlapped in area which he approximated as slightly under a half-acre. The issue presented is who owns the overlap. The Lealaimatafao family contends that the subsequent registration of the overlap by Misiaita was void, given his family's pending registration application with "Lepuapua. " Plaintiff further points out that Misiaita had failed to make a timely objection to his family's prior offer for registration, as required by A.S.C.A. §§ 37.0103, and that he was estopped from further asserting a claim inconsistent to that of plaintiffs.

Misiaita, on the other hand, argues that his completed registration could not be defeated by Lealaimatafao, who did not file an objection to his offer to register and (although not affirmatively pleaded as a defense) that plaintiffs registration application did not comply with the statute's procedural requirements for affording notice. Misiaita claims that he has not seen any notices of plaintiffs registration offer posted in the village.

Conclusions

We conclude in favor of Lealaimatafao and hold that title to the overlap area could not be registered in favor of Misiaita while it remained the subject of a pending registration application by Lealaimatafao.

Misiaita 's attempt at attacking the validity of Lealaimatafao's registration process by arguing non-compliance with notice requirements, is entirely without merit. Just because Misiaita may not have noticed the posting of plaintiffs claim within the vicinity; does not necessarily mean that there was no posting. This very reasoning was recently addressed and tersely rejected by the Appellate Division in Ifopo v. Siatu'u, 12 A.S.R.2d 24 (1989). The Court there noted, "Nor can the [trial] court conclude that no notice was given simply because a number of witnesses [17ASR2d113] testified that they never saw notices." Id. at 28. The plain and simple fact here is that Misiaita did not timely object to Lealaimatafao's offer for registration and he is, therefore, precluded by A.S.C.A. § 37.0103 from asserting any claims to the overlap. See Puluti v Muliufi, 4 A.S.R. 672 (1965). He cannot subsequently circumvent and frustrate the enactment by a back door opening in the way of a subsequent offer for , and registration of, title. In addition, A.S.C.A. § 37.0101(b) directs that "[n]o title to land shall be registered unless the registrar is satisfied that there is no conflicting claim thereto. ..." (Emphasis added.) The record before us facially discloses a mistake on the part of the Territorial Registrar. If the Registrar had, at the time, the benefit of the facts as they are now known to us, he would have had no discretion whatsoever but to deny Misiaita's registration offer in view of the mandatory language of A.S.C.A. § 37.0101(b). Furthermore, the Court, in our opinion, correctly gave effect to this enactment when it stated in Lutu v. Penitusi, LT No. 28-77 (1978), that A.S.C.A. § 37.0101(b)

[i]n essence, forbids the registration of land where there are unlitigated or unresolved conflicting claims, including pending lawsuits regarding the registration of the same property. Any registration made contra to this section is void.

(Slip Opinion at 9.) In these circumstances, the Court went on to hold that a void registration may be ordered cancelled. Id. at 10.

On the foregoing, it is the judgment of the Court that the registration of title to Misiaita luta of so much of those parts of the land "Lepuapua," being the conununal land of the Lealaimatafao family as recorded in 2 Native Land Titles at 326, is void and shall be cancelled. The Territorial Registrar is directed to amend the registry accordingly.

It is so Ordered.

********

1. A.S.C.A. § 37.0103 provides: (a) Notice of the proposed registration shall be posted for 60 days on the bulletin board at the courthouse in Fagatogo and at 2 public places in the village in which or nearest to which the land is located. (b) During such 60 day period anyone claiming an interest in the land adverse to that of the applicant or applicants for registration may file notice of adverse claim with the territorial registrar. (c) If no notice of adverse claim is filed within the 60 day period, and all requirements of this chapter having been complied with, the territorial registrar shall register the title to such land in the name or names of the applicant or applicants.

2. The Letuligasenoa family, through counsel Tauese Sunia, conceded Lealaimatafao's claim early in these proceedings.

Kim v. American Samoa Gov ’t,


OK NAM KIM, Appellant

v.

AMERICAN SAMOA GOVERNMENT, Appellee

High Court of American Samoa 
Appellate Division

AP No. 5-90

December 17, 1990

__________

Generally, an interlocutory order during the course of a judicial proceeding is not a final decision that can be immediately appealed to the High Court, but is reviewable only by means of appeal from an adverse judgment in the main proceeding.

An interlocutory order is final and thus appealable if it finally determines claims of right separable from and collateral to rights asserted in the main action, too important to be denied review, and too independent of the cause itself to require that appellate review be deferred until the whole case is adjudicated.

To fall within collateral order exception, an order must: (1) conclusively resolve the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from the final judgment in the main case.

A collateral order is generally regarded as effectively unreviewable and therefore final---even if a later appeal from an adverse judgment in the principal action is possible---when substantial rights would be lost if appeal were delayed until the main stream of the litigation is terminated.

Where defendant asserts a right which is or includes a right not to bear the burden of the suit itself, regardless of the outcome, he may immediately appeal a denial of that right under the collateral order exception.

Order on appeal is effectively unreviewable when a showing of prejudice to the defense is required to obtain a reversal.

Denial of an interpreter generally requires a showing of actual prejudice to the defense to justify reversal on appeal.

Defendant's appeal of an interlocutory order denying his asserted absolute right to appointment of an interpreter on request falls within the collateral order exception since he is asserting a right not to be tried under such circumstances, and such right is effectively unreviewable, since denial of an interpreter generally requires a showing of prejudice to obtain a reversal. [17ASR2d194]

Neither the Due Process Clause of the Fifth Amendment nor the right to a fair trial guaranteed by the Sixth Amendment gives a non-indigent defendant the right to a court- appointed and government-paid interpreter .

Trial judge has wide discretion in deciding whether to appoint an interpreter and need not accept defendant's assertion that he needs one as dispositive, but must balance defendant's right to confrontation and effective assistance against the public's interest in the economical administration of criminal law.

American Samoa Constitution guarantees a court-appointed interpreter only to an indigent defendant who will otherwise be unable to understand the proceedings against him or to communicate with his counsel.

Court employment of Samoan-English interpreters, but not interpreters of other languages, is simply a practice which reflects the cultural and juridical history of American Samoa rather than a racially based classification.

Statute providing that the High Court shall have interpreters deals with the method of appointing permanent court employees and does not require Court to find, employ, and compensate special ad hocofficers whenever a litigant demands an interpreter.

Before KRUSE, Chief Justice, REES, Associate Justice, FONG*, Associate Justice, VAIVAO, Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Appellant. Togiola T.A. Tulafono

  For Appellee, Jeffrey Buckner, Assistant Attorney General

This is an interlocutory appeal from the denial by the District Court of a court-appointed Korean interpreter for appellant's trial on the charge of driving under the influence of alcohol. The appellant concedes that he is not indigent. There is no evidence in the record before us, with the possible exception of the fact that appellant's counsel requested the appointment of an interpreter, of the extent of appellant's ability or inability to speak or understand English or Samoan.

I. Jurisdiction

The appellee argues that we are without jurisdiction over this appeal because there has been no "final decision" of the District Court. See A.S.C.A. § 3.0309.

Honorable Harold M. Fong, Senior JudgeUnited States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior. [17ASR2d195]

In general, an interlocutory order during the course of a trial or other judicial proceeding is not a "final decision" within the meaning of A.S.C.A. § 3.0309 and similar statutes. Such orders, even though they may be "fully consummated decisions" with respect to the issue they address, "are but steps towards final judgment in which they will merge," and are therefore reviewable only by means of appeal from an adverse judgment in the main proceeding. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949); see Deaver v. United States, 483 U.S. 1301 (1987).

An interlocutory order is, however, final and therefore appealable if it falls within the "collateral order exception." This exception describes "that small class [of interlocutory orders] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate considerations be deferred until the whole case is adjudicated." Cohensupra, 337 U.S. at 546. To fall within the collateral order exception, an order must (1) conclusively resolve the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from the final judgment in the main case. Van Cauwenberghe v. Biard, 486 U.S. 517 (1988); Coopers & Lybrand v. Livesay, 458 U.S. 263 (1978).

There is no question that the instant order is "collateral" in the sense that it resolves a question that is separate and distinct from the merits of the action. No question raised by this appeal or by the decision below has any bearing on the merits of the criminal action itself, which have to do with whether appellant is guilty of driving under the influence of alcohol. The District Court's ruling on the question of an interpreter was also conclusive: the trial was about to go forward without an interpreter when appellant moved for a stay to accommodate the present appeal.

There is a serious question about whether this order would be effectively unreviewable upon final judgment in the criminal case. If the trial had taken place without an interpreter and had resulted in a conviction, an appeal from the conviction might have been taken on the same grounds asserted in the present appeal. An acquittal would have rendered appeal unnecessary , at least insofar as the harm appellant sought to avoid was limited to the possibility of conviction and punishment. [17ASR2d196]

Collateral orders are, however, generally regarded as "effectively unreviewable" and therefore final ---notwithstanding the possible availability of a later appeal from an adverse judgment in the principal action---when "substantial rights would be lost, if appeal were delayed until the main stream of the litigation is terminated." Kowalski v. Holden, 276 F.2d 359 (6th Cir. 1960). This principle has been applied, at least until recently, to the denial of court-appointed counsel in criminal cases. See United States v. Harris, 707 F.2d 653 (2d Cir.), cert. denied, 464 U.S. 997 (1983); United States v. Deutsch, 599 F.2d 46 (5th Cir.), cert. denied, 444 U.S. 935 (1979). Such treatment has been based partly on the risk that uncounseled defendants would unwittingly surrender substantive and procedural rights in ways that would tend to evade later appellate review, and partly on the idea that "the unedifying spectacle of a trial of a lawyerless defendant" is a harm separate from that represented by any conviction and sentence that might result. Harrissupra, 707 F.2d at 657; see Deutschsupra, 599 U.S. at 47-48. In this respect, the right to counsel may resemble the right not to be "placed in jeopardy" twice for the same offense or the right of a legislator not to "be questioned" with respect to an official speech or debate. See Abney v. United States, 431 U.S. 651 (1977) (denial of pre-trial motion to dismiss on double jeopardy grounds is an immediately appealable collateral order); Helstoski v. Meanor, 442 U.S. 500 (1979) (denial of motion to dismiss grounded in the Speech or Debate Clause is immediately appealable). See also Segni v. Commercial Office of Spain, 816 F.2d 344, 345 (7th Cir. 1987):

Where the right asserted by way of defense to a lawsuit is (or includes) a right not to bear the burden of the suit itself, regardless of outcome, the denial of that right, as by denying a motion to dismiss the suit, is appealableimmediately by virtue of the collateral order doctrine. An appeal after judgment would come too late to protect the right.

A fairly recent United States Supreme Court case on a related question raises serious doubts about whether the federal courts will continue to regard denials of appointed counsel as immediately appealable. In Flanagan v. United States, 465 U.S. 259 (1984), the Court ordered the dismissal for lack of jurisdiction of an interlocutory appeal from a pre-trial order disqualifying defendants' counsel for conflict of interest. The Court observed that defendants were not asserting "a right not to be tried," but merely "a right not to be convicted in certain circumstances." Id. at 267. A successful appeal from an order [17ASR2d197] disqualifying a particular counsel would not result in dismissal of the prosecution, but only in a delayed trial; allowing immediate appeal from such an order "thus would severely undermine the policies behind the final judgment rule." Id. at 270. Moreover, "postconviction review is concededly effective" to the extent that the asserted right to represention by a particular lawyer "is like the Sixth Amendment rights violated when a trial court denies appointment of counsel altogether...." Id. at 268. "No showing of prejudice need be made to obtain reversal" when a court has improperly refused to appoint counsel, "because prejudice to the defense is presumed." Id.

The only federal court of appeals to consider the question since Flanagan has held that denials of appointed counsel are no longer immediately appealable, because the earlier contrary cases "do not survive the rationale" of Flanagan. United States v. Celani, 748 F.2d 363, 365 (7th Cir. 1984). The Celani court placed special emphasis on the point that an improper denial of counsel would entitle defendant to a reversal on appeal even if he could not show that it caused any actual prejudice to his defense. "The 'effective reviewability of an order on appeal depends on whether a showing of prejudice to the defense is required to obtain a reversal." Id. (citing Flanagan). Since no such showing is required, "immediate appealability is not necessary to protect the defendant's rights regarding appointment of counsel prior to trial." 748 F.2d at 365.

The constitutional and statutory right to an interpreter asserted in the present appeal is closely related to the right of an indigent person to appointed counsel. To require someone to undergo a criminal trial without a court-appointed interpreter in circumstances where such appointment was required by law---if, for instance, the defendant were penniless and understood not a word of the proceedings against him---might well occasion palpable injury beyond the possibility of conviction and sentence. "Trying a defendant in a language he does not understand has a Kafka-like quality," and it is at least in part to avoid forcing people to undergo such an ordeal that courts have sometimes recognized a constitutional right to a court-appointed interpreter. United States v. Desist, 384 F.2d 889, 902 (2d Cir. 1967); see United States ex rel. Negron v. New York, 434 F.2d 386 (2d Cir. 1970).

In this respect the denial of an interpreter is unlike the denial of the "right" to a particular lawyer with which the Court was confronted in Flanagan. A person required to undergo a trial with the assistance of competent counsel other than the one he most prefers may not enjoy the [17ASR2d198] proceeding, but an acquittal or a reversal on appeal will do much to help him get over his disappointment. The same cannot be said for someone who has been forced, in violation of his constitutional or legal rights, to endure a "Kafka-like" experience such as that described in Desist. Moreover, there is a significant chance that a defendant unable to understand anything the judge, the witnesses, or his own counsel was saying would enter a guilty plea that would be uninformed, effectively uncounseled, and yet most unlikely ever to be reviewed on appeal. Cf. Deutsch,supra, 599 F.2d at 48.

We note further that the denial of an interpreter, unlike the denial of appointed counsel, has not generally been held to justify reversal on appeal in the absence of a showing of actual prejudice to the defense. Seee.g.,Cervantes v. Cox, 350 F.2d 855 (10th Cir. 1965). Appellant in the present case asserts a broad constitutional and statutory right to appointment of an interpreter upon request. This right, as asserted by appellant, is absolute; it does not depend on a finding that an interpreter is necessary to guarantee a fair trial, and it is available even to a defendant who speaks some English or Samoan and who therefore might manage to survive a trial without demonstrable prejudice. In such a case the denial of an interpreter (assuming that there really was an absolute right to one) would constitute a violation of an independent substantive right, and yet reversal on appeal would not be an appropriate remedy. In this respect the right being asserted in the present case differs importantly from the right to appointed counsel. See Celanisupra, at 365-66; cf. Flanagansupra, 465 U.S. at 268.

Despite doubts occasioned by the Court's opinion in Flanagan---and despite our strong agreement with the sentiments expressed in that opinion to the effect that criminal litigation should be expeditious and not piecemeal---we conclude that the right being asserted in the present appeal is not merely a right not to be convicted under certain circumstances, but a right not to be tried under such circumstances. We further conclude that at least some violations of the asserted right would not be remediable by reversal on appeal, or even by acquittal. We therefore hold that the District Court's order denying the appointment of an interpreter is within the small class of pre-judgment orders that are "final decisions" immediately appealable under A.S.C.A. § 3.0309.

II. The Right to An Interpreter

Neither the due process clause of the Fifth Amendment to the United States Constitution nor the right to a fair trial guaranteed by the [17ASR2d199] Sixth Amendment confers upon a non-indigent defendant the right to a court-appointed and government-financed interpreter. United States v. Martinez, 616 F.2d 185 (5th Cir. 1980); Desistsupra. Even an indigent defendant is entitled to a court-appointed interpreter only insofar a suchappointment is necessary to enable him to understand the proceedings and to communicate with his counsel; the trial judge has wide discretion in deciding whether to appoint an interpreter and need not accept asdispositive the defendant's assertion that he needs one. Cervantes v. Coxsuprasee Valladares v. United States, 871 F.2d 1564 (11th Cir. 1989). "The trial court must balance the defendant's rights to confrontation and effective assistance against the public's interest in the economical administration of criminal law, and the court's balancing is reversible only on a showing of abuse."  Valladares871 F.2d at 1566.

The American Samoa Constitution contains a due process clause identical to its federal counterpart, as well as a fair trial guarantee substantially similar to that provided by the Sixth Amendment. See Rev. Const. Am. Samoa art. I §§ 2, 6 ("In all criminal prosecutions, the accused shall have the right. ..to be confronted with the witnesses against him. ..and to have the assistance of counsel for his defense."). We know of no evidence that those who ratified and promulgated the territorial constitution in 1967 meant these provisions to derogate from the settled interpretations of the sources upon which they drew. Moreover, we find the federal jurisprudence most persuasive. Notwithstanding the strong policy against trying any defendant in a language he does not understand, a defendant's ability to remedy the situation by providing his own interpreter "dissipates substantially---perhaps completely---any feeling of unease."  Desistsupra, 384 F.2d at 902.

[I]f the real point is guarantee of a fair trial, ...[and if the defendant] denied himself the interpreter and stands on his own right to do so, does not the issue become solely who should have paid for one? ... [W]e doubt that [the] claimed absolute constitutional right to an interpreter is stronger than the absolute right to a court-appointed counsel; the latter is held only by the indigent. ...

Id. We hold that the American Samoa Constitution guarantees a court- appointed interpreter only to an indigent defendant who will otherwise be unable to understand the proceedings against him or to communicate with his counsel. [17ASR2d200]

Appellant also suggests that the employment by the Court of Samoan-English interpreters but not of Korean-English ones is a "racially based classification" which deprives appellant of equal protection f the laws. On the contrary, the practice simply reflects the cultural and juridical history of American Samoa. Court proceedings are conducted primarily in English for a number of practical reasons having to do with the Territory's relationship to the United States, but Samoan is the principal language of over ninety percent of the population. For the same reasons that a court or other official institution in the United States does not deprive anyone of equal protection by doing business in only one language, such an institution in Samoa does not deprive anyone of his constitutional rights by providing its basic services in two languages (with supplemental interpretation for those who genuinely need and cannot afford it) rather than in seven or seventeen.(1)

Finally, appellant contends that his right to a court-appointed interpreter is guaranteed by A.S.C.A. § 3.0205, a territorial statute entitled "Appointment of clerk and other officers." This section provides that the High Court" shall have a clerk, interpreters, who may also be deputy clerks," and various other employees who shall be appointed by the Chief Justice and shall have salaries fixed by him. Assuming for the sake of argument that this statute requires the Chief Justice to appoint interpreters not only for the High Court but also for the District Court,(2) it must be read in its context.

A.S.C.A. § 3.0205 deals with the method of appointment of permanent court employees; those with "fixed" salaries, who are [17ASR2d201] appointed by the Chief Justice and are "subject to removal" by him. The reference to "interpreters, who may also be deputy clerks" is obviously also a reference to regular Court employees. Moreover, at the time of the enactment of this law in 1962, the Court had been in existence for over sixty years; it had always employed Samoan-English interpreters and had never employed any other kind. The language of section 3.0205 is hardly the sort of language a legislature would use to impose on the Court a new and important obligation to find, employ, and compensate special ad hoc officers whenever a litigant should demand them. Nor has this been the practical construction of the law during the thirty years since its enactment; neither the Fono nor the United States Department of the Interior has ever appropriated money to pay such ad hoc officials, and the Court has never appointed them except in cases involving indigents, where such appointment was compelled by the constitutional guarantees of due process and a fair trial.

Accordingly, the order of the District Court is AFFIRMED.

********

1. The above analysis assumes that the federal equal protection clause has some application to the question at hand. It should be noted that "the extent to which the equal protection clause of the Fourteenth Amendment applies in the territory is unclear." Macomber v. American Samoa Government, 12 A.S.R.2d 29, 30 (1989). See generally Banks v. American Samoa Government, 4 A.S.R.2d 113, 123-28 (1987) (discussing the extent to which federal equal protection doctrine applies in American Samoa under the doctrine of The Insular Cases).

The Revised Constitution of American Samoa, promulgated in 1967 under the authority of the Secretary of the Interior, contains no equal protection clause.

2. A.S.C.A. § 3.0205 applies on its face only to the High Court. A.S.C.A. § 3.0307, the section regulating the appointment of officers of the district court, provides that the Chief Justice "may" assign High Court employees to work part-time or full-time for the district court, and that he may also appoint such other district court officers as he "may consider necessary."

Kim v. American Samoa Gov’t,


OK NAM KIM, Appellant

v.

AMERICAN SAMOA GOVERNMENT, Appellee

AP No. 5-90

High Court of American Samoa 
Appellate Division

October 4, 1990

__________

It would be inappropriate to grant interim relief on an appealed motion when the court believes it is without jurisdiction of the appeal.

Where defendant's trial in District Court was continued so that he could appeal the District Court's denial of his motion to appoint an interpreter, his motion to strike additional facts included by the District Court in the record on appeal was consolidated for argument with the merits of the appeal.

Before KRUSE, Chief Justice, and REES, Associate Justice.

Counsel: For Appellant, Togiola T.A. Tulafono

  For Appellee, Jeffrey Buckner, Assistant Attorney General

This appeal concerns whether appellant, who has been charged with Driving Under the Influence, is entitled to a Korean-English interpreter at government expense.

Appellant now moves to strike a set of "Additional Facts" included by the District Court as part of the record on appeal. Appellant primarily urges that appellee did not object to the statement of facts originally submitted by appellant and subsequently adopted by the District Court, and that the District Court had no jurisdiction to add to its statement of facts after the appeal had been docketed.

The judges hearing the present motion are of the opinion that the Appellate Division is without jurisdiction to entertain this appeal, because [17ASR2d2] the court below has rendered no final judgment. Rather, the trial was continued so that appellant could bring an appeal from the District Court's denial of his motion for appointment of an interpreter.

As counsel for appellee pointed out at the argument of this motion, no motion to dismiss the appeal is presently before the Court. The appeal itself is set for oral argument at the regular session of the Appellate Division tentatively scheduled for the week of October 29, 1990. The government's brief on the merits does include an argument that the Court has no jurisdiction to hear the appeal. We believe the decision on whether to dismiss the appeal for want of jurisdiction should be made after oral argument before a regularly constituted panel of the Appellate Division. It would be inappropriate, however, for the judges hearing the present motion to grant interim relief with respect to a matter in which we believe ourselves to be without jurisdiction. Accordingly, we will defer any judgment on the motion to strike until the regular session of the Appellate Division.

We recognize that this may create difficulties for counsel, who must be prepared to argue the merits of the appeal both on the original statement of facts and on the statement of facts as amended. We note, however, that the arguments on the legal issues before the Court should not be greatly affected by any decision on whether to include the additional facts. Neither of the questions before the Appellate Division---whether the Appellate Division has jurisdiction over the appeal and, if so, whether a non-indigent criminal defendant has the right to a Korean-English interpreter at government expense---would appear to turn on any of the facts included in the Statement of Additional Facts. Appellant concedes that he is not indigent, and neither the original statement of facts nor the additional one tells us whether or to what extent appellant speaks and understands English or Samoan.

The motion to strike is consolidated for argument with the merits of the appeal.

It is so Ordered.

********

In re Matai Title “ Mulitauaopele”,


LEAANA L. FUATA, Claimant

v.

I.S. MULITAUAOPELE and FOFOGAOTUMUA
KONELIO MULITAUAOPELE, Objectors

[In the Matter of the Matai Title

"Mulitauaopele" of the Village of Lauli'i]

High Court of American Samoa
Land and Titles Division

MT No. 5-89

November 13, 1990

__________

Neither law nor Samoan custom forbids the continued existence of two unrelated families, which came into being after the original line of direct descendants from the first titleholder died out. [17ASR2d76]

A motion for a new trial must clearly apprise the trial court of the specific errors being alleged; a general statement that the court erred as a matter of fact, law, or custom does not fulfil this requirement.

The requirement that a motion for a new trial be filed within ten days after the announcement of the judgment is a mandatory prerequisite to the exercise of jurisdiction by the Appellate Division. A.S.C.A. § 43.0802(a).

In construing the customary and statutory requirement of "hereditary right" to matai titles, courts have generally employed two formulas to calculate such right: direct descent from the original title holder and direct descent from the nearest title holder.

A statement regarding "hereditary right" in matai-title cases involving one, unrelated branch of a family did not have res judicata effect as to the other branch of the family when the question of the "hereditary right" of the latter was not before the Court and no member of the latter family was a party to the those cases.

Adoption itself does not confer a hereditary right to a matai title; in tracing a candidate's ancestry to the nearest title holder, the formula applied in the vast majority of cases, only blood relationships count.

The statutory "best hereditary right" criterion does not require the court to extinguish a family line whenever it appears that a matai obtained his title, prior to the enactment of the statute, for a reason other that blood descent. A.S.C.A. § 1.0409.

Although the exception, ancient Samoan traditions abound with stories of matai who obtained their titles for reasons other than blood descent from a previous title holder, such as "igagato" (conferral as a reward) and "matu'upalapala" ("commission" to avoid the extinction of the line).

Since the statutory adoption of the "hereditary right" criterion, the court is not free to award a disputed matai title to a person who is not descended from a previous titleholder. A.S.C.A. § 1.0409.

The matai-title statute does not give the court the power to retroactively apply the four statutory criteria to events that happened hundreds or thousands of years ago. A.S.C.A. § 1.0409.

The matai-title statute may not divest any person of a title which was registered before November 1, 1932. A.S.C.A. § 1.0413.

A family's establishing a "new" matai title for itself was not illegal unti11969, when the matai title registry was closed. A.S.C.A. § 1.0401(b).

Although having the same surname, families which are unrelated by blood and own separate lands do not have the option of participating in affairs of the other families or contending for their matai titles.

When a party fails to object to the court's ruling on the motion to dismiss, any such objection must be regarded as waived. [17ASR2d77]

Before REES, Associate Justice, TAUANU'U, Chief Associate Judge, AFUOLA, Associate Judge, MATA'UTIA, Associate Judge, and TAIMANU, Associate Judge.

Counsel: For Claimant, Tau'ese P.F. Sunia

  For Objector Konelio, Gata E. Gurr

  Objector Pele Ivi pro se

On Motion for New Trial:

This action concerns the selection of a successor to the late Mulitauaopele Tamotu of the Village of Lauli'i.

I. Facts and Procedural History

This case began as most matai title cases do, with an offer by one family member to register the title in his own name and an objection by another member of the family who contended that he and not the claimant should hold the title. In this case the claimant was Leaana Lui Fuata (hereinafter "Leaana") and the objector was F. Konelio Mulitauaopele (hereinafter "Konelio"). There was, however, one extraordinary development: another objector appeared, not to claim the title for himself, but to argue that neither of the other contenders was entitled to it.

This objector was I.S. Mulitauaopele (hereinafter "Ivi" or "Pele Ivi"), who stated his argument in a motion to dismiss this action. This argument, succinctly stated, was that there is only one genuine Mulitauaopele or Pele family in Lauli'i and that it is the family headed by Pele Ivi himself, rather than the one headed by the late Mulitauaopele Tamotu. The registration of the Mulitauaopele title by Tamotu in 1938 and by Tamotu's father Pataua in 1927, in apparent conformity with the territorial statute governing registration of matai titles---and the recognition of Tamotu and his predecessors by the traditional institutions of the village, county, district, and Territory at various times during the last century---were explained as temporary irregularities to which the Court must put an end. It is central to objector Ivi's argument that most members of the family headed by the late Mulitauaopele Tamotu (including Tamotu himself as well as claimant Leaana) are not members of the Mulitauaopele family at all. [17ASR2d78]

After hearing lengthy argument and testimony by Pele Ivi in support of his motion to dismiss, the Court denied the motion.

The Court acknowledged the undisputed facts that there are two distinct families in Lauli'i calling themselves "Mulitauaopele" or "Pele" and that the two families are not related by blood except insofar as some people happen to be the descendants of intermarriages between members of the two families. (The undisputed fact that such intermarriages have taken place is itself perhaps the strongest evidence that the two families are separate and distinct families, as marriage is strictly forbidden between even distantly related members of the same Samoan communal family.) The Court did not, however, draw from these facts the conclusion urged by Pele Ivi.

Rather, the Court also took note of the equally undisputed facts that the two unrelated Mulitauaopele families came into being after the original line of direct descendants from the first Mulitauaopele title holder died out; that one of the present families is related to the original line of title holders by collateral descent; and that the other is related by marriage, by adoption, and perhaps also by some traditional method of conferring a title such as igagato or matu'upalapala. The Court concluded that neither law nor Samoan custom forbids the continued existence of both families. In re Matai Title Mulitauaopele, 16 A.S.R.2d 63 (1990).

The Court went on to decide that objector Konelio was better qualified to hold the title than claimant Leaana. Id. at 71.

Pele Ivi now moves for a new trial. His motion assigns five errors to our decision.

II. "Errors of Law and Fa'a-Samoa"

Three of the assignments of error, quoted here in their entirety, are as follows:

1. The Trial Court erred in its decision as "clearly erroneous" as a matter of fa'a-Samoa;

2. The Trial Court erred in its decision as "clearly erroneous" as a matter of law;

... [17ASR2d79]

5. The Court cannot judicially legislate, it must follow the statutory guidelines, not create its own law and its own brand new sets of matai.

A. Jurisdiction

The three assignments quoted above do not even begin to conform with the requirement of T.C.R.C.P. Rule 7 that a motion "shall state with particularity the grounds therefor. Indeed, they are not , assignments of error at all, but simply three different ways of saying that the movant believes the Court to have gotten the case wrong.

This Court has repeatedly warned the Bar (of which objector Pele Ivi, who represented himself in this action, was a member for some years) that motions for new trial must clearly apprise the trial court of the specific errors being alleged. See, e.g., Taulaga v. Pafea, 17 A.S.R.2d 34 (1990); Government of American Samoa v. King, AP No. 19-1970, Opinion and Order at 3 (1970); Judicial Memorandum No. 2- 87, 4 A.S.R.2d 172 (1987).  A general statement that the Court erred as a matter of fact, law, custom, etc., obviously does not fulfill this requirement. (An accusation that the Court has "judicially legislated," without further detail, adds to such general suggestions of error only the additional suggestion that the error was a grave and perhaps a deliberate one.)

Moreover, the requirement of a motion for new trial conforming to the "particularity" requirement of Rule 7, filed within the statutory ten-day deadline, is a mandatory prerequisite to the exercise of jurisdiction by the Appellate Division. A.S.C.A. § 43.0802(a); see Taulaga, supra; King, supra; Fai'ivae v. Aumavae, AP 2-76 (1976); Judicial Memorandum, supra, 4 A.S.R.2d at 174. As assignments of error Nos. 1, 2, and 5 are not assignments of particular errors to the opinion, we cannot consider them as such.

Pele Ivi's motion for new trial did contain a statement to the effect that it would be supplemented by a supporting memorandum. Had such a memorandum been filed within the statutory deadline, and had it stated specific grounds of error, it would have cured the deficiency in the original motion. No memorandum was ever filed, however, either before or after the deadline. At oral argument on the motion, Pele Ivi made a statement reiterating almost everything he had said during his testimony and argument on the day of trial. This statement came well [17ASR2d80] after the statutory deadline for stating particular grounds of error and therefore cannot be construed as an amendment to the motion for a new trial. It is, accordingly, insufficient to confer jurisdiction for purposes of A.S.C.A. § 43.0802.

Out of an abundance of caution, however, and in order to avoid giving a litigant the impression that he has lost his case only because of a jurisdictional "technicality," we briefly address the gist of what he said at oral argument.

B. Hereditary Right

Objector Pele Ivi agreed with the other parties that the original title holder, Mulitauaopele Leatisua, had no direct descendants after Manuleavi, the third title holder. He claimed, however, that he himself has "Mulitauaopele blood" by virtue of descent from a line of Pele title holders tracing its ancestry to a sister of the original title holder. The Court accepted Ivi's version of his own genealogy, but observed that such collateral descent gives no greater hereditary right than does the other Pele family's descent from an equally long and ancient line of Pele title holders which, like Ivi's line, first came into being by other means than direct descent.

In the many years that this Court has been construing the customary and statutory requirement of "hereditary right" to matai titles, two formulas have generally been employed to calculate such right: direct descent from the original title holder and direct descent from the nearest title holder. The history and application of these two formulas are discussed in In re Matai Title Tauaifaiva, 5 A.S.R.2d 13, 13-15 (1987), and In re Matai Title Fano, 4 A.S.R.2d 148 (1987). For early applications of the two competing formulas, compare Taofi v. Foster, 1 A.S.R. 464 (1932) (descent from first title holder) with Seuega v. Laisene, 2 A.S.R. 82 (1939) (descent from nearest title holder). In both formulas a person's blood relation to each of his parents is 1/2, to each of his grandparents 1/4, to each of his great-grandparents 1/8, and so forth. In neither formula is there any such fractional statement for a relationship to a brother, sister, aunt, uncle, or cousin; only direct ancestors count.

As we observed in our original opinion, Pele Ivi is correct in his contention that the ostensible title holders in the Pele Tamotu (Leaana) line would fail to meet the more rigorous test of blood descent from the original title holder. They can state their fractional relationships back to [17ASR2d81] Pele Taliloa, Pele Esera, or perhaps Pele Ta'ita'i, but can state no such relationship at all to Pele Leatisua. We also observed, however, that the title holders in Pele Ivi's own line (Tialavea) would also fail this test. They can trace their relationship back perhaps as far as Pele Talai, a or Pele Savea, but can state no fractional relationship to any earlier Pele.

By the more flexible test of blood relationship to the nearest title holder, both lines are legitimate. Pele Ivi himself, for instance, had a blood right to the title by virtue of his 1/2 relationship to his father Pele Suiava. The late Pele Tamotu, from the competing Leaana line, had a 1/2 relationship to his own father Pele Pataua. The two candidates in the present case, Konelio and Leaana, have relationships of 1/2 and 1/8 to Pele Pataua and Pele Esera respectively.

C. Res Judicata

Our holding is not in conflict with the Court's holding in Titi v. Suiava, 2 A.S.R.2d 160 (1945), that Pele Ivi's father Pele Suiava had a hereditary right to the Pele title. Our holding is not that neither of the current Pele lines is legitimate, but that under the circumstances ---the original line of direct blood descendants having died out over a hundred years ago and two distinct families having existed since then ---both must be regarded as legitimate. Neither the Suia'a case nor that on which it relied, La'atai v. Savea, 2 A.S.R. 76 (1939), contradicts this holding. Those cases involved internecine disputes within Pele Ivi's own (Tialavea) family; both seem to recognize that within that family, descent from the line of Peles tracing its ancestry to Pele Leatisua's sister is precisely what is meant by "hereditary right." We reaffirm those holdings, and add that within the distinct family headed by the late Pele Tamotu, descent from the Peles in the Leaana line is the test of hereditary right.

The Suiava and Lavatai cases did not, as Pele Ivi seems to contend, purport to establish a rule of law that the only test of hereditary right for anyone claiming to be a "Mulitauaopele" is descent from the original title holder's sister; they spoke only to the rights of members of Pele Ivi's own (Pele/Tialavea) family and did not say anything at all about what constituted a hereditary right within the separate (Pele/Leaana) family of Pele Tamotu. Had they made any such statement, it would not have had the effect of res judicata or any effect at all, because the question was not before the Court and because neither Pele Tamotu (the legally registered holder of the title "Mulitauaopele" and head of the Pele/Leaana family at the time Suia'a and La'atai were [17ASR2d82] decided) nor any member of his family was a party to either of the two cases.

The case now before us is the first in which the Court has ever been confronted with the question of hereditary right to the Mulitauaopele title held by Tamotu and his predecessors. Leaana and Konelio proved their hereditary right to that title in the only way a member of the family could possibly do: through descent from other Mulitauaopele title holders in the Leaana line. It ill behooves Pele Ivi to urge the imposition on the Pele/Leaana family of a standard of hereditary right so rigorous that it would wipe out the family altogether, while relying on the flexible standard adopted by the Court in Suiava and Lavatai to insulate his own line from similar scrutiny.

D. Blood and Adoption

Nor, contrary to another assertion made by Pele Ivi in oral argument, does our holding suggest that adoption itself confers a hereditary right to a matai title. In tracing a candidate's ancestry to the nearest title holder---the formula applied in the vast majority of cases over the years to determine hereditary right ---only blood relationships count. Thus the natural son of a previous title holder has a 1/2 relationship to the title, the natural grandson a 1/4 relationship, whereas the adopted son or grandson has no fractional relationship at all. Nothing in our holding contradicts or changes this. Both the present candidates, Konelio and Leaana, are natural descendants of previous Mulitauaopele title holders: Konelio is a natural son of Pele Pataua, Leaana a natural son of a natural daughter of a natural daughter of Esera. Both proved their descent from the title by blood, not adoption.

The contention urged by Pele Ivi is a very different one: that whenever it appears that a matai obtained his title for a reason other that blood descent, even if this happened a hundred (or presumably a thousand) years ago, and even if his descendants have held the title ever since, the line is illegitimate and must be extinguished by the Court at the request of the "true" descendants (including not only direct descendants but also great-nephews many times removed) of the title. No holding of this Court stands for that Draconian proposition, and we decline to find it entailed by the "best hereditary right" criterion of A.S.C.A. § 1.0409.

The traditions of ancient Samoaabound with stories of matai who obtained their titles for reasons other than blood descent from a previous title holder. Although such cases were always the exception[17ASR2d83] rather than the rule, it seems clear that such customary institutions as igagato (conferral as a reward) and matu'upalapala ("commission" to avoid the extinction of the line) did exist. Since the adoption of the "hereditary right" criterion by statute in the early part of this century, the Court is not free to recognize such reasons for awarding a disputed matai title to a person who is not descended from a previous title holder. So far as we can tell, however, no one has suggested before now that the matai title statute gives the court the duty, or even the power, to right ancient wrongs by retroactive application of the four statutory criteria to events that happened hundreds or thousands of years ago.(1)

E. The "Joint Title Holders" Cases

We also reiterate our original observation that cases involving "joint" or "split" holding of the same title by more than one member of the same family are inapposite to the case before us. The Pele/Tialavea and Pele/Leaana families are unrelated by blood and own separate lands; if either family's title were to be abolished, its members would not have the option, as those in the "joint" and "split" cases did, of participating in affairs of the other family and eventually contending for its title. (In addition to these and the other indicia of separateness cited in our original opinion, In re Matai Title Mulitauaopele, 16 A.S.R.2d at 67-68, we note that on several occasions Pele Ivi and the late Pele Tamotu were selected by the traditional institutions of the county of Su'a and Vaifanua to serve as the two Senators for that county, each, of course, occupying a separate Senate seat.) [17ASR2d84]

F. Samoan Logic

Finally, we note the contention to which Pele Ivi gave principal emphasis at oral argument, to the effect that our decision was "un-Samoan," did not use "Samoan logic," and would destroy or radically change Samoan custom. The most appropriate response is that the original decision to deny the motion to dismiss was made by the Samoan Associate Judges, who have the principal authority in matai cases, the presiding Justice concurring but not voting; that the written opinion, although composed by the presiding Justice, reflects the thoughts of the Associate Judges and was written after lengthy consultation with them; that they did not sign their names to it lightly; and that they all continue to believe it to be fully consistent with Samoan custom.

III. Judicial Bias

The two remaining assignments of error are reasonably specific. One of them urges that an Associate Judge asked certain questions of one party/witness which reflected "obvious bias against our Motion to Dismiss."

We note that the questions to which this assignment alludes were asked after the Motion to Dismiss had already been denied. Even accepting the rest of the argument ---that "the Samoan Judges are in fact jury," that questions by one of their peers might therefore improperly sway the "jury" against a litigant, and that questions by a judge reflecting an opinion on the evidence rather than a personal animus against a litigant should be regarded as impermissible "bias"---these particular questions could not possibly have had any role in bringing about a decision that had already been made and announced. The only matter before the Court at the time these questions were asked was which of the two candidates, Konelio or Leaana, should be selected to hold the title. The only litigant who could possibly have been prejudiced by any questioning at this point was the losing candidate, Leaana. He has not moved for a new trial.

IV. "Premature Ruling"

Finally, objector Pele Ivi argues that the Court erred "in that it prematuredly ruled on our Motion to Dismiss before all of the evidence was in; the Court's sudden change of procedure at the morning of the Ist day of trial was unfair to Movant." [17ASR2d85]

The Court's recollection of this incident is that after opening statements from all parties and the presentation of evidence by Pele Ivi on behalf of his motion to dismiss (consisting of his statement from the witness stand about his version of the history of the Mulitauaopele title and his understanding of Samoan custom), we announced that the Court would recess.

The specific purpose of this recess, clearly announced in open court, was to decide whether we should rule on the motion to dismiss or wait until the other parties had presented their evidence. There was no objection. At the conclusion of the recess, we announced that the motion would be denied and stated our reasons for the denial. Again there was no objection to the procedure we had followed in considering the motion. The movant did observe that he disagreed with our ruling on the merits, and we discussed his rights to a move for reconsideration and to appeal. (We also extended objector Pele Ivi the courtesy, over the objection of counsel for Leaana, of being permitted to question the two other parties during their presentation of evidence on the remaining issue before the Court, in order that he might bring out any facts he should regard as helpful to any subsequent motions he might wish to make.)

Because there was no objection to our ruling on the motion to dismiss, either when we announced we were about to decide whether we could rule on it or a few minutes later when we actually did rule on it, any such objection must be regarded as waived. It would in any event be denied on its merits. See Willis v. Fai'ivae, 12 A.S.R.2d 37, 39 (1989) ("There was no reason why the trial court was required to hear more evidence when [a litigant's] case in chief was insufficient to make out his claim. There was no unfairness and no error.")

V. Order

Accordingly, the motion for new trial is denied.

It is so ordered.

********

1. Indeed, the matai title statute appears explicitly to forbid such application. A.S.C.A. § 1.0413 provides that "[t]his chapter [the matai title statute] may not have the effect of divesting any person of a title registered before 1 November 1932." Although this language might be read as merely forbidding the divestiture of a title from a particular holder who obtained a title illegally before 1932, while permitting the judicial extinguishment of the title itself after the death of that particular holder, we are aware of no such instance. Many titles in American Samoa were created or conferred long ago in ways which, had the present statute been then in force, would have been illegal, and yet these titles and all their holders are now recognized as legitimate. See, e.g., Moea'i v. Te'o, 9 A.S.R.2d 107 (1988), in which we held that a matai title long registered in accordance with law and recognized by the village council must be regarded as a matai, notwithstanding the tradition that the office of bearer of the ava cup is not a matai title. At the very worst, either the Pele/Leaana or the Pele/Tialavea family was guilty of establishing a "new" matai title for itself at some time during the Nineteenth Century. This was not illegal, however, until 1969 when the matai title registry was closed. See A.S.C.A. § 1.0401(b).

In re Matai Title “Mulitauaopele”,


LEAANA L. FUATA, Claimant

v.

I.S. MULITAUAOPELE and FOFOGAOTUMUA KONELIO
MULIT AUAOPELE, Objectors

[In the Matter of the Matai Title

"MULITAUAOPELE" of the Village of Lauli'i]

High Court of American Samoa
Land and Titles Division

MT No. 5-89

November 13, 1990

__________

Ordinarily. a judgment of the High Court is automatically stayed for ten days in order to allow the losing party an opportunity to move for a new trial. T.C.R.C.P.62(a).

If a party wishes a stay beyond the automatic ten-day period, pending consideration of his motion for new trial or pending appeal, the Court may in its discretion grant such a motion. T.C.R.C.P. 62(b), (d).

Deciding whether a stay should be granted pending appeal entails three inquiries: (1) whether the losing party, should he prevail on appeal, will have suffered great or irreparable harm in the meantime if a stay should not be granted; (2) the harm, if any, that a stay would impose on the party who prevailed at trial; and (3) the likelihood of success on appeal. [17ASR2d72]

In most matai title cases the balance of hardships will militate strongly in favor of granting a stay pending appeal, as the only hardship on the prevailing party is that he must wait a year or so to register the title; on the other hand, if the prevailing party quickly registers the title, holds the traditional installation ceremonies, but has his right to hold the title reversed on appeal, the consequences for the whole family could be disastrous.

Even though the Appellate Division has rarely, if ever, reversed a judgment of the Land and Titles Division in a matai-title case, the "balance of hardships" will generally weigh heavily in favor of granting a stay.

Before REES, Associate Justice, TAUANU'U, Chief Associate Judge, AFUOLA, Associate Judge, MATA'UTIA, Associate Judge, and TAIMANU, Associate Judge.

Counsel: For Claimant, Tau'ese P.F. Sunia

  For Objector Konelio, Gata E. Gurr

  Objector Pele Ivi pro se

On Motion to Direct Registration of Matai Title and Motion for Stay of Execution:

Objector F. Konelio Mulitauaopele, who has been held entitled to hold the matai title "Mulitauaopele" in the Village of Lauli'i, now moves for an order directing the Territorial Registrar to register the title in his name. Objector I.S. Mulitauaopele, on whose motion for new trial we had not yet ruled at the time the present motion was made, counter-moves for a stay of execution of the Court's judgment that Konelio should hold the title.

Konelio's motion appears to have been made necessary by a policy in the Office of the Territorial Registrar against the formal registration of matai titles, even when the Court has held one candidate entitled to the title, pending resolution of post-trial motions and appeals. Despite the excellent motives that obviously underlie this policy and the excellent sense it makes in most cases, the Registrar's refusal in this instance may technically violate the Court's order. Ordinarily a judgment of the High Court is automatically stayed for ten days in order to allow the losing party or parties opportunity to move for new trial. T.C.R.C.P. Rule 62(a). A party who wishes a further stay pending consideration of his motion for new trial or pending appeal should so move, and the Court may in its discretion grant such motions. See T.C.R.C.P. Rule 62(b), (d). In this case the opinion was rendered on August 8, 1990, and no stay was requested until October 16, 1990. It [17ASR2d73] would appear that at any time after August 18, no stay having been granted or applied for beyond the automatic 10-day stay, Konelio was entitled to register the title.

Having denied the motion for a new trial, we proceed to decide whether a stay should be granted pending appeal, if any. Such a decision entails three inquiries: (I) whether the losing party, should he prevail on appeal, will have suffered great or irreparable harm in the meantime if a stay should not be granted; (2) the harm, if any, that a stay would impose on the party who prevailed at trial; and (3) the likelihood of success on appeal. The first two criteria are commonly referred to as the "balance of hardships.

In most matai title cases the balance of hardships will militate strongly in favor of granting a stay pending appeal. The only hardship on the prevailing party is that he must wait a year or so to register the title. This is about how long it takes in any event to bring a family together after judicial resolution of a matai title controversy, and it is never a good idea to proceed with formal installation of a matai until such consensus has been achieved. On the other hand, should the party who prevailed at trial quickly register the title and proceed to hold the traditional ceremonies requisite to the installation of a matai, only to have hi:; right to hold the title reversed on appeal, the consequences for the whole family could be disastrous. Many people inside and outside the family may regard the traditional formalities as having "vested" the new matai in a metaphysical sense, regardless of what the appellate court might have held. The ultimate winners, for their part, might justly regard the interim matai as a usurper who had committed a sort of sacrilege. It might take years to restore peace within the family. Should he wish to do so, and perhaps even if he should not so wish, the "pretender" could remain a source of uncertainty and conflict for the rest of his days.

Even though the possibility of reversal in any given matai title case must be regarded as quite low---for the Appellate Division has rarely, if indeed ever, reversed a judgment of the Land and Titles Division in such a case---the "balance of hardships" will generally weigh so heavily in favor of a stay as to be decisive.

The present case, however, is different from the run of the mill in several respects. [17ASR2d74]

First, the only party who moved for new trial (and who, it would appear, plans to appeal the decision) was not a losing contender for the title but a person from outside the family. This party, Mulitauaopele Ivi, maintains that the family headed by him is the only true Mulitauaopele (Pele) family and that the unrelated family headed by the late Pele Tamotu had no right to exist and that its registered matai title should have no further holders. The usual dangers of not granting a stay, having to do with the difficulties of restoring harmony within the family in the event of a reversal, are not present. (The losing candidate who was a family member, Leaana Fuata, did not move for new trial and has told the Court through counsel that he has no objection to registration of the title by Konelio.) Should Pele Ivi prevail on appeal, he will have suffered only the indignity, if indignity it is, of not having been the only Mulitauaopele recognized by law during the interim. We cannot see that this will be any more undignified than having not been the only Mulitauaopele during the many years that the late Pele Tamotu held the title. It should, moreover, be fully cured by a court judgment such as the one Pele Ivi seeks, to the effect that he and his ancestors in title have always been the only legal Peles, and that he and his successors shall from that day forward be the only Peles in fact as well as law.

There is also an important difference between Konelio's circumstances and those of the typical prevailing matai candidate. It is undisputed that he was recently diagnosed as having a terminal illness and only a few months to live. If we stay the effects of our judgment pending appeal (and on the assumption that the appellate court will ultimately uphold the right of the Mulitauaopele/Leaana family to exist and to have a registered title holder), then Konelio will almost certainly be denied forever the satisfaction of having attained what he may justly regard as among the great accomplishments of his life.

Finally, we note that the trial court decision in this case is even less likely than most matai cases to be reversed on appeal. Of the five grounds stated in Pele Ivi's motion for new trial, three alleged no particular error and therefore can afford no basis for appeal. A fourth ground was an objection to a ruling to which the movant appears not to have objected at the time it was made. The fifth ground---the only one which could sustain an exercise of appellate jurisdiction---consists of allegations of judicial bias "against our Motion to Dismiss" said to have been manifested in questions asked by one of the judges after the Motion to Dismiss had already been denied. [17ASR2d75]

In light of what would appear to be the extremely slight chance that the decision will be overturned on appeal, the great and irreparable harm that almost certainly will be suffered by Konelio if a stay is granted, and the relatively slight and curable harm that will be suffered by Pele Ivi if a stay is granted, we decline to grant a stay pending appeal.

We do, however, grant a stay until 4:00 p.m.on Tuesday, November 20, 1990, to allow the moving party to make a motion before the Appellate Division or a judge thereof for a stay notwithstanding our decision on this motion. If no further stay has been granted by then, Konelio will have the right to register the title.

It is so Ordered.

**********

In re Beaver Family Trust,


In re BEAVER FAMILY TRUST

by

W. SCOTT BARRETT and WILLIAM H. CRAVENS, 
Trustees

High Court of American Samoa 
Trial Division

PR No. 19-90

October 19, 1990

__________

Where trustees filed a pleading styled as a petition to a nonexistent "probate division" of the High Court for advice and instructions, the Court denied a motion to dismiss for failure to state a claim by the surviving settlor of the trust, since the trustees did not merely seek an advisory opinion but stated a claim for declaratory relief. A.S.C.A. §§ 43.1101 et seq.

Before KRUSE, Chief Justice, AFUOLA, Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Trustees, John L. Ward II

  For Lefaga Beaver, Charles v. Ala'ilima

On Motion to Dismiss:

The above-named trustees have filed a pleading styled "Petition for Advice and Instructions," and they have addressed their petition to the "Probate Division"(1) of the High Court of American Samoa. The surviving settlorof the referenced family trust, Mrs. Lefaga Beaver, has entered an appearance(2) by filing a Trial Court Rules of Civil Procedure, [17ASR2d10] Rule 12(b)(6) motion to dismiss the trustees' petition for failure to state a claim for which relief may be granted. Mrs. Beaver contends that the trustees are seeking an advisory opinion from the Court as to their duties and that there is no case or controversy presented.

We disagree. In the light of the requirements of Trial Court Rules of Civil Procedure, Rule 8 (a)(I), we conclude that the complaint sufficiently states a claim for declaratory relief pursuant to A.S.C.A. §§ 43.1101 et seq., notwithstanding the odd characterization of the Complaint as a petition to the probate division for instructions. The motion to dismiss is denied.

It is so Ordered.

********

1The High Court of American Samoa consists of an appellate division, a trial division, and a land and titles division. A.S.C.A. § 3.0207(a). Once upon a time, the High Court did have a separate "probate" division. See 5 A.S.C. §§ 408. This enactment, however, was amended in 1979 by Public Law 16-28, §13, which deleted reference to "probate division." The petitioners' insistence, nonetheless, in addressing their petition to a non-existent probate division of the High Court, is puzzling.

2The file does not reveal whether any summonses have been issued and served upon all parties interested in the trust, as required by Trial Court Rule of Civil Procedure.

Ho Ching; Afatasi v.


NAMUA AFATASI, Plaintiff

v.

MAX HO CHING, Defendant

High Court of American Samoa 
Trial Division

CA No. 106-89

December 13, 1990

__________

A two-year statute of limitations applies to actions founded on personal injuries. A.S.C.A. § 43.0120(2).

"Minors and insane persons" have one year from the termination of such disability within which to commence an action, regardless of any otherwise-applicable statute of limitations. A.S.C.A. § 43.0126.

The term "insane" in statutes providing for the tolling of a limitation period is generally construed as synonymous with terms such as "mentally incompetent."

Tolling of the limitation period on account of insanity, incompetence, or mental incapacity does not require violent behavior or a prior adjudication of incompetency.

A clinical diagnosis of a pathological condition such as dementia or schizophrenia is neither necessary nor sufficient to establish insanity.

The test of insanity is whether the potential plaintiff suffered, during the statute of limitations period, from a mental disorder which resulted in his inability to manage his affairs.

The "inability to manage one's affairs" test of legally-defined insanity is a functional one, for which the best evidence is empirical. [17ASR2d174]

Before REES, Associate Justice, TAUANU'U, Chief Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Plaintiff, Charles V. Ala'ilima

  For Defendant, William H. Reardon

Five years ago defendant intentionally shot plaintiff, inflicting serious injuries. As a result of these injuries plaintiff is paralyzed from the waist down, evidently for life, and has suffered a variety of ancillary disabilities and illnesses.

In December 1989, over four years after the shooting, plaintiff brought this action for damages. Defendant argues that the action is barred by the two-year statute of limitations for actions founded on injuries to the person.See A.S.C.A. § 43.0120(2).

Plaintiff agrees that this is the applicable statute of limitations, but contends that as a result of the injury he was rendered "insane" within the meaning of A.S.C.A. § 43.0126. This section provides that "[m]inors and insane persons" shall have one year from after the termination of such disability within which to commence an action, regardless of any otherwise applicable statute of limitations.

The word "insane" in statutes providing for the tolling of a limitation period is generally construed as synonymous with terms such as "mentally incompetent." See, e.g.United States v. Portland Trust & Savings Bank, 140 F.2d 708 (9th Cir. 1944); Adkins v. Nabors Alaska Drilling, Inc., 609 P.2d 15, 23 n.12 (Alaska 1980); Harrington v. County of Ramsey, 279 N. W.2d 791 (Minn. 1979); Jaime v. Neurological Hospital Association of Kansas City, 488 S.W.2d 641 (Mo. 1973); Lowe v. Pue, 257 S.E.2d 210 (Ga. App. 1979). Tolling of the limitation period on account of insanity, incompetence, or mental incapacity does not require that a person be a "raving maniac," a "violent madman," or a "babbling idiot." Dean v. United States, 150 F. Supp. 541, 543 (W.D. Okla. 1957). It does not require a prior legal adjudication of incompetency Browne v. Smith, 205 P.2d 239 (Colo. 1949). Nor is it either necessary or sufficient that there be a clinical diagnosis of a pathological condition such as dementia or schizophrenia. DeansupraLowesupraGraboi v. Kibel, 432 F. Supp. 572 (S.D.N. Y. 1977). [17ASR2d175]

Rather, the test is whether the potential plaintiff suffered, during what otherwise would have been the limitation period, from a "'mental disorder resulting in inability to manage one's affairs.'" Brownesupra, 205 P.2d at 241 (quoting Webster's dictionary).  AccordGraboisupraAdkinssupraPearl v. Pearl, 177 P. 845 (Cal. 1918); HarringtonsupraJaimesupraLowesupra.

The "inability to manage one's affairs" test is a functional one for which the best evidence is empirical. Evidence that someone has enrolled in school, secured passports and visas, or filed another lawsuit tends to show that he was not "insane" within the meaning of the tolling provision even though suffering from a clinical neurosis or psychosis. Seee.g.GraboisupraMcCarthy v. Volkswagen of America, Inc., 435 N.E.2d (N.Y. 1972). On the other hand, "[p]laintiffs have engaged in a surprising amount of activity and still have successfully claimed to be incompetent under a tolling statute." Adkinssupra, 609 P.2d at 23. A person can be incompetent although he "is endowed with considerable intelligence" or has held a job and become a parent during the period of incompetence. Deansupra, 150 F. Supp. at 543; see United States v. Portland Trust & Savings BanksupraValisano v. Chicago & N. W. Ry. Co., 225 N .W. 607 (Mich. 1929). The more things a plaintiff did that were similar to filing a lawsuit, the less likely it is that a mental disorder rendered him incompetent to file one.

The evidence of mental disorder in the present case consisted largely of the testimony of plaintiff's treating physician. In response to a question about the plaintiffs "state of mind" after the accident, the doctor testified in pertinent part:

Well, the first three months was very difficult for him ... Now a young man of 18 and you find out you're paralyzed and you're totally paralyzed for life, it's something very devastating in your life and so I brought the family in and also his sisters to try and talk to him. He was very very distant in the first three months in the hospital. He talked very little. He was unhappy.... I've asked our psychiatrist to talk with him ...to try and get him back to a normal thing like people his age ....

In response to a later question from the Court about whether he observed anything tending to show whether the defendant had the "mental equipment" to have "managed his affairs," the doctor testified: [17ASR2d176]

Well, the first year I had him, I thought to myself that this guy is not a fighter. He's going to keep on going down and down and down ....I sent him quite a number of times to try and get him to know other people so that he can communicate with me and to me, it didn't solve anything at all because he was still ---I would come in and talk to him and he answers with very little words. So now you ask me the question if I think he can manage his affairs. Being the guy he [now] is who is happy. ..I think he's accepted that he should be happy with the way things are. That's my interpretation of the way he looked in the last two years, but before that, I thought he's not a fighter. He was a goner as a human being.

The Court also asked the plaintiff himself why he had not filed suit earlier than 1989. The following exchange ensued:

THE WITNESS: I was undecided at the time and I did not have that strength. I didn't have enough strength to come here by wheelchair.

THE COURT: You mean physical strength or mental strength or something else?

THE WITNESS: Physical and mental strength.

The testimony of both the plaintiff and the doctor was to the effect that plaintiff did essentially nothing for several years after the accident. He stayed at home and was taken care of by his mother except on those occasions when he was driven to the hospital in an ambulance for therapy sessions at which he was unresponsive and generally listless. He was also admitted on an inpatient basis several times, for a total of about six months during the three years after the accident. Although his illnesses would begin as localized disorders in areas (usually the bowels or urinary tract) in which plaintiffs paralysis prevents him from feeling pain, these would give rise to systemic disorders with symptoms including fever, frequent vomiting, and dehydration.

Both the doctor and the plaintiff also testified that the plaintiff underwent a dramatic change in or around the middle of 1989. The doctor testified that:

I met him for the first time after I was away for two months on holiday and he was a different boy. He [17ASR2d177] looked happy and he was talking with girls and boys his age outside of my clinic, but he was really different. ..I noticed there was a different guy. ..

Within a few months the results of plaintiff’s therapy improved, he began socializing regularly with other disabled young people, and he got a job. He also consulted an attorney, who filed the present lawsuit.

We conclude that the plaintiff did suffer between 1985 and 1989 from a mental disorder which made him incapable of managing his own affairs." A temporary mental affliction arising from the accident in question may give rise to the toll for insanity." McCarthysupra, 435 N.E.2d at 1074 (citing Matter of Hurd v. County of Allegany, 336 N.Y.S.2d 952 (19__)). This is not to say that everyone who is depressed or confused because of an injury ---or even everyone who must suddenly cope with the fact that he will be paralyzed for life---is incompetent to file suit. In this case, however, the objective evidence of plaintiffs actions or lack thereof between 1985 and 1989 supports the doctor's testimony that the "devastating" psychological effects of the plaintiffs paralysis gave rise to a profound inability or unwillingness to communicate with anyone or accomplish anything during this period.(1) [17ASR2d178]

In the absence of expert psychiatric testimony we cannot say whether this severe depression, etc. , had a clinical name or names, but its nature and degree are fairly stated in the treating physician's observation that plaintiff was going "down and down and down" and was "a goner as a human being." He could not manage his affairs.

There is little dispute concerning the merits of the action. The defendant pled guilty to an intentional assault and is estopped from denying the truth of his plea. See Galea'i v. Atofau, CA No.72-89 (Opinion and Order issued August 20, 1989). Plaintiff also presented testimony from which we can only conclude that the shooting was intentional and calculated to produce death or serious physical injury. The plaintiff has suffered physical pain not only from the shooting but also from the numerous illnesses associated with his paralysis. For the rest of his life he will suffer the mental and emotional injuries attendant to paralysis, to being confined to a wheelchair, to the loss of the sexual function, and to having other people tend to his personal bodily functions. We assess the damages caused by these injuries at $50,000.

The medical witness recommended that plaintiff participate in certain off-island therapy programs for which, as a Western Samoan national, he is ineligible for American Samoa Government financial assistance. Although we left the record open for plaintiff to present evidence of the cost of these programs, he has not done so. The cost of the therapy programs available in the Territory is trivial. We therefore assess no damages for medical expenses.

We award no punitive damages because we believe the punitive and exemplary purposes of such an award will be fulfilled in the present case by the substantial compensatory damages. [17ASR2d179]

Judgment will enter for plaintiff and against defendant in the amount of $50,000 plus court costs of $55.

It is so Ordered.

********

1. Such inactivity might conceivably be explained by reference to the physical injuries themselves rather than to a resulting mental condition. There is, however, no evidence that plaintiff engaged even in such routine activities as a normal person in a wheelchair would do. Soon after the doctor noticed the dramatic transformation in plaintiffs mental condition, however, he did engage in such activities.

Plaintiffs mental condition appears to have been similar to that of the benefit claimant in United States v. Portland Trust & Savings Banksupra, whose war injuries apparently caused him to have "changed considerably; ...he was irritable and nervous, very touchy, and seemed to be bothered by everything;  ...sat around the house with a stare on his face, frequently not answering until spoken to several times; was irritable, feeling that he was getting the worst of things; ...took no interest in anything; ...there was a decided change in his feeling as to whether people were against him." 140 F.2d at 710. This condition was found to have lolled the statute of limitations. Id. at 712. See also Dean v. United Statessupra, 150 F. Supp. at 543 & n.7 (statute of limitations tolled by "mental irregularities" characterized by various physical symptoms and by the claimant's assertions of superiority to others, irritability, uncooperativeness, anxiety, lack of insight, emotional instability, and introspective attitude).

Fanene; Fagasoaia v.


VALU FAGASOAIA and MAINA ATAFUA for themselves and 
on behalf of the FAGASOIA FAMILY of Nu'uli, Plaintiffs

v.

TUITOGAMAATOE FANENE, SIUFAGA FANENE, 
TUMEMA KIM, DONG IK KIM, PUAO SIONE, 
TEVESI SIONE, and PUAILOA TAVETE, Defendants

High Court of American Samoa

Land and Titles Division

LT No. 34-90

November 15, 1990

__________

No lease existed when the people who signed documents purporting to create various contract and/or property rights in some buildings had no authority to do so.

During the vacancy of the family's matai title, no one family member or faction has the power to effect a radical transformation of the family's property without a clear consensus of the entire family. [17ASR2d92]

Before REES, Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Plaintiffs, Asaua Fuimaono

  For Defendants, Charles V. Ala'ilima

This case arose from a dispute among members of a family (and an unrelated storekeeper allied with one of the two factions within the family) over use of family land.

The land in question is a fairly small tract on both sides of the main road in Nu'uli, in an area that has seen intense commercial development within the last ten years. It is undisputed that the land, called "Papa," belongs to theFagasoaia family. All parties are related to the family by blood or marriage except Tumema Kim and Dong Ik Kim.

The primary occupant of the land on one side of the road, until the events giving rise to this action, was plaintiff Valu Fagasoaia. At a much earlier time the land was occupied by Valu's parents and siblings, including defendant Puailoa, but Valu was for many years the only occupant. In 1978 defendant Tuitogamaatoe Fanene (hereinafter "Tu'i") came to Valu, her uncle, to ask permission to build a residential house on part of the land in the area he had been occupying. He gave his permission. Tu'i then secured a Separation Agreement allowing the construction of this dwelling and providing that the dwelling itself would be her personal property although the land would continue to belong to the Fagasoaia family.(1)

Although Tu'i testified that she had originally intended the house she built pursuant to the 1978 separation agreement to be a dwelling and that she and her husband occasionally slept there at first, although they had another house nearby, it is clear that almost from the beginning this house was used for business purposes. The first tenants, during the early 1980s, were some air conditioning repairmen. In 1985 the house was [17ASR2d93]leased to defendant Dong Ik Kim for $250 per month. Although the lease did not specify for what purposes the house was to be used, provisions allowing the lessee to build an "extension" clearly contemplated the present commercial use. In 1986 a new agreement was signed between Tu'i and the Kims; the gist of this document was that in respect of some $27,727 spent by the Kirns for building an extension, they would pay no rent at all until July 1990 and would thereafter pay $550 per month through 1996.

Neither of these leases---nor the transformation of the dwelling house into a much larger store building with a parking lot, all on Fagasoaia land---was made with permission of Fagasoaia. Nor was Valu, who still lived on the land and still regarded himself as being somehow "in charge," especially happy about the changes. When he saw some old coconut trees being cut down for the parking lot, he confronted the workmen and told them to stop. They did so, but returned to complete the task on the instructions of Siufaga Fanene, husband of Tu'i. At one point Valu seems to have taken the law into his own hands by throwing rocks at the store windows. Tu'ithen arranged for her tenant Kim to pay Valu a small periodic stipend; she testified that this was an act of pure love on her part, but pragmatic considerations may also have figured in the decision. In 1989 Tu'i ordered the stipend stopped. Tu'i says love was again her only motive, as she did not wish to fuel her uncle's drinking problem. It also appears, however, that at about this time Uncle Valu had been consorting with plaintiff Maina, a person from another branch of the Fagasoaia family who had recently returned from off-island and had been expressing curiosity about the commercial complex that had gone up on family land.

Meanwhile, the principal occupants on the other side of the road had been the immediate family of defendant Puao Sione. It is undisputed that these people built dwelling houses on this part of the land at various times during the 1960s and 1970s, always with the permission of the senior matai Fagasoaia. In 1989, apparently through the good offices of Tu'iPuao and her husband leased an existing dwelling house on their side of the road to Mr. Kim for ten years. The rent was to be $700 per month for the first five years and $900 per month thereafter. At about this time Mr. Kim also began building an "extension" to this dwelling house, in the form of a warehouse about three times as large as the dwelling itself. According to the testimony of defendants Kim and Puao, the arrangement is that Mr. Kim will be able to deduct the entire cost of building the warehouse from his $700 monthly rent until such time as he has been compensated for all his expenses. This will take about ten [17ASR2d94] years, the entire term of the lease. Mr. Kim will then have the option to renew the lease---of the warehouse as well as the dwelling---for an additional ten years, apparently at the rate of $900 per month.

In 1989 and 1990 at least three other buildings have been built or started on this land. These include a generator building behind the store on the Tu'i/Valu side of the road, a new dwelling house on the Puao side of the road under the auspices of Puao's husband, and a dwelling on the Valu side of the road under the auspices of Valu. On documents appertaining to some of the more recent construction, defendant T .M. Puailoa, the brother of Valu and father of Tu'i, has begun signing his name as "landowner."

Fagasoaia Leasialagi (Lio), the sa'o of the family, died in or around 1987. He was still alive at the time Mr. Kim added the extension to the Tu'i house and began operating his store there, but had died by the time arrangements were made for the warehouse on the Puao side of the road. The family has recently selected a new sa'o, who will be installed in a few months after the prerequisite formalities have been completed.

We conclude that the only thing defendant Dong Ik Kim has leased from Tu'i for $550 per month is the right to use her original dwelling house. Similarly, the $700 lease covers the dwelling house of Puao. (These rental prices do not differ markedly from prices for similar structures in this area.)

The parking lot, the generator building, and the two "extensions" (the storefront area and the warehouse), as well as the property on which they were built, are the property of the Fagasoaia family. No lease exists with respect to any of these properties. The people who signed documents purporting to create various contract and/or property rights in these buildings had no authority to do so. This was especially true prior to the death ofFagasoaia, who had sole authority to authorize such construction and whose permission was not asked. Thereafter, during the vacancy of the family's matai title, no one family member or faction had the power to effect a radical transformation of family property without a clear consensus of the entire family.

The new Fagasoaia will be the person with whom Kim should negotiate should he wish to continue as lessee of the family properties. Pending any agreement between Fagasoaia and Kim, we take judicial notice of such negotiated commercial rents as have come to the Court's attention in other recent cases in order to fashion the relief to which the [17ASR2d95] family appears entitled in exchange for defendant Kim's continued use and occupation of its property. We estimate the rental value of the store, generator building, and parking lot to be $1000 per month, over and above the $550 per month payable to Tu'i for her original dwelling house. We estimate the rental value of the warehouse space to be $1500 per month, apart from rental on the attached dwelling house of Puao.

Because Kim has already been fully compensated for the cost of building the store by his retention of the rent over several years, he should pay the family $1000 per month (in addition to the $550 he pays Tu'i) should he wish to retain possession of the store pending the installation of the new Fagasoaia. Because he has not yet been fully compensated for his expenses in building the warehouse---and because it would be unfair to Puao to withhold such expenses from future rentals of her dwelling house insofar as she is not the owner of the warehouse and will not receive rentals from it after Mr. Kim has deducted his expenses---he may deduct $500 per month from the $1500 monthly warehouse rental until such time as his expenses have been fully compensated. This credit for expenses is in lieu of the present deduction of $700 per month against rentals due on the dwelling house of Puao, and will be allowed on the condition that defendant Kim submit within ten days a full accounting of such expenses. The family will be allowed an $18,000 offset against the total amount of such credits to compensate it for the rental value of the warehouse during the year it has already been in use.

The $2000 monthly rent for the family properties for the current month is due immediately, and for succeeding months will be due on the first day of each month.

$200 of this monthly amount is payable directly to plaintiff Valu as compensation for the use of land formerly occupied by him. Although any right Valu had to make decisions about this land is and always has been subject to the ultimate authority of the sa'o, of all the family members in this case he appears to have been the most inconvenienced and the least compensated. Pending a comprehensive decision about the long-term use of this land by the new sa'o, which would presumably include some compensation to displaced family members, Valu has the same right as Puao (and a better right than Tu'i) to a share in the income from this land.

The remaining $1800 per month should be placed in a trust account in the name of the family, from which no withdrawals should be [17ASR2d96] made without Court approval, pending the installation of the newFagasoaia. Pending the submission by counsel and approval by the Court of documents establishing such a trust, the funds may be deposited in the registry of the Court.

All parties will be permanently enjoined from authorizing further construction on this land, except that Valu may complete the single small residential dwelling which he had already begun to construct at the time of trial.

It is so Ordered.

********

1. The signature on this Separation Agreement is "Fagasoaia Lio"; plaintiffs have introduced signatures of the then senior matai of the Fagasoaia family to show that he usually signed his name "Fagasoaia I. Leasialagi" and in a somewhat different hand from the one on this document. We need not decide whether the signature on the 1978 separation agreement was or was not that of the then Fagasoaia, because no issue presently before us depends on such a determination.

Falefatu; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

FALEFATU aka FATU FA'AMAONI, Defendant

High Court of American Samoa 
Trial Division

CR No. 63-89

December 5, 1990

__________

The Court may correct an illegal sentence at any time. T.C.R.Cr.P. 35.

A motion for a new trial in a criminal case "shall be filed within 10 days after the announcement of judgment or sentence." A.S.C.A. § 46.2402(a).

The ten-day time limit to file a motion for a new trial is mandatory and jurisdictional; errors of law not raised within ten days of judgment or sentence are waived, at least insofar as they concern the right to appeal. A.S.C.A. §§ 43.0802(a), 46.2402(8).

The formal style or caption of a motion for a new trial is not essential to fulfill the statutory requirement; nor must the motion specifically request a new trial rather than some lesser or different form of relief, as long as the asserted errors are susceptible of such relief. A.S.C.A. § 43.0802(a), 46.2402(a).

What is essential to a motion for a new trial is that it be filed within the statutory period and that it fully apprises the court of the asserted errors in the judgment or sentence, so that the trial court may consider for itself whether any such errors occurred and make appropriate corrections.

Insofar as T.C.R.Cr.P. 35 purports to extend or abolish the mandatory deadline for alleging errors of law in a criminal sentence, it is in direct conflict with the statute; as such, the statute must prevail over the judge-made rule. A.S.C.A. § 43.2402(a). T.C.R.Cr.P.35.

Although T.C.R.Cr.P. 35 is derived, almost verbatim, from the Federal Rules of Criminal Procedure, the federal courts are not subject to a statutory , jurisdictional limitation such as applies to the High Court of American Samoa. A.S.C.A. § 43.2402(a); T.C.R.Cr.P. 35; Fed. R. Crim. P. 35.

Because the High Court's rules were promulgated solely on its own authority, they must give way to territorial statutes defining the court's jurisdiction, unless the statutes themselves are unconstitutional.

In some cases, such as when an illegal sentence was pronounced on a defendant unrepresented by counselor when the circumstances surrounding an error of law made it impossible for counsel to call it to the Court's attention within ten days, a statutory ten-day [17ASR2d115] limit might amount to an unconstitutional denial of liberty without due process of law. U.S. Const. Amends. V, XIV; Revised Const. of American Samoa art. I, § 2; A.S.C.A. § 46.2402(a).

The High Court has continuing jurisdiction to terminate or modify the conditions of probation throughout the entire term of probation. A.S.C.A. § 46.2205.

An untimely motion for a new trial was construed to be one to terminate conditions of probation. A.S.C.A. §§ 46.2205.

The High Court has the power to impose detention as a condition of probation for a period equivalent to one-third of the maximum sentence of imprisonment authorized by law. A.S.C.A. § 46.2206.

Probation's public protection purpose includes the protection of particular people from the probationer, as well as deterring the probationer from future misconduct.

Conditions of probation are valid if they are reasonably related either to rehabilitation or to public protection, at least if the entire sentence considered as a whole was reasonably calculated to achieve both of these purposes. A.S.C.A. §§ 46.2205

Under the 1987 amendment to the probation statute, sentencing judges are free to impose probation for reasons other than the rehabilitation-related provisions of the statute. A.S.C.A. §§ 46.2203, 46.2206.

That a criminal may be unable to determine the exact punishment and exceptions to punishment does not render criminal statutes unconstitutional; a person is only entitled to know the maximum punishment available.

No constitutional right to rehabilitation at public expense exists, nor do statutes authorizing rehabilitation programs or early release give any particular criminal a constitutionally protected "liberty interest" in participating in them.

Although federal courts have generally held that it is beyond the power of a sentencing court to order that the defendant leave the jurisdiction, such orders have been a regular feature of criminal sentences in American Samoa for many years.

Criminal convictions are proper grounds for deportation. A.S.C.A. §§ 41.0616(4), (6), (9), (10), (11), (16); 8 U.S.C. § 1251(a)(5), (11), (14), (15), (16).

The mere fact that a person who has committed a serious crime is required for that reason to return to his own country is not, absent extraordinary circumstances, either cruel or unusual. U.S. Const., Amend. VIII.

American Samoa, unlike the fifty states and the other territories of the United States, is specifically excluded from the scope of federal immigration laws and has, pursuant to congressionally-delegated authority, enacted its own immigration laws. 8 U.S.C. § 1101(13), (29), (36), (38); A.S.C.A., Title 41.

American Samoa is an unorganized, unincorporated territory; accordingly, the federal Constitution applies here only insofar as its tenets restate "those fundamental limitations in [17ASR2d116] favor of personal rights" that are "the basis of all free government," or which have been specifically made applicable by Act of Congress.

The Revised Constitution of American Samoa, promulgated in 1967 under the authority of the Secretary of the Interior, contains no equal protection clause.

Requiring a probationer to reside in a certain place may be imposed for the protection of the public, particularly the victim and others who may have assisted in the prosecution, and to remove the defendant from an environment found to have contributed to his criminal behavior.

No substantive due process right exists for not being deported.

Under its "unorganized and unincorporated" status, American Samoa is not part of the federal system and is not intended for incorporation.

The right to interstate travel is a substantive, virtually unqualified constitutional right, but international travel can be regulated within the limits of due process. U .S. Const. Amend. V.

The freedom to travel is one of the freedoms a convicted criminal may lose; therefore, a requirement that a convict spend part or all of his probation outside the Territory does not unconstitutionally abridge any such right.

The basis of the United States' immigration laws is the right of independent nation-states to protect their political institutions, their people, and their independent existence by legally and forcibly excluding undesirable foreigners.

Although not supreme, independent, or sovereign, American Samoa has a different relationship with the Union than the states, with a number of attendant advantages and disadvantages.

The power to expel aliens is a fundamental, sovereign power exercised by the political branches of government.

American Samoa's Attorney General has the power to "enforce and administer" the laws pertaining to immigration and the status of aliens, and the statutory procedures are the exclusive method for "determining the deportability of any person." A.S.C.A. §§ 41.0103(a), 41.0614.

The sole, stated purpose of the territorial immigration statute is to preserve the "limited land resources, water, sewage facilities, and educational and economic opportunities" of American Samoa.A.S.C.A. § 41.0201.

In imposing conditions of probation, the sentencing judge is well-situated to know whether a particular offender needs to be insulated from his past environment, his associates, his victim, or those who assisted in his prosecution, as well as the best methods to assure such insulation.

Persons deemed deportablc under the immigration statute are almost invariably deemed excludable from readmission; but in many circumstances, they be readmitted at the [17ASR2d117] discretion ofAmerican Samoa's Immigration Board and Attorney General. A.S.C.A. §§ 41.0613, 41.0615-16, 41.0617.

The Court's power over probationers is strictly limited to the term of the probation. which may not exceed five years. A.S.C.A. § 46.2204.

Legislative inaction in the face of judicial statutory construction strongly suggests agreement with, or at least acquiescence in, the judicial interpretation of those laws.

When the legislature re-enacts a statute or adopts amendments to it "without a suggestion of disagreement" with a prior judicial construction, a very strong presumption exists that the legislature has adopted the prior construction.

A person who has been "convicted of a crime involving moral turpitude committed within 5 years after any entry" is deportable; if he were outside the territory, he would be excludable as a convicted felon. A.S.C.A. §§ 41.0615(8), 41.0617(4).

American Samoa's Attorney General may have the discretion to allow a deportable or excludable alien to return and/or remain in the territory. A.S.C.A. § 41.0617.

Before REES, Associate Justice, and VAIVAO, Associate Judge.

Counsel: For Plaintiff, John WilksAssistant Attorney General

  For Defendant, Charles V. Ala'ilima

On Motion for Reconsideration of Sentence:

I. Facts and Procedural History

On August 9, 1989, Falefatu Fa'amaoni pled guilty to a single count of Sexual Abuse in the First Degree, a felony punishable by imprisonment of up to five years. The guilty plea was pursuant to an agreement whereby the Government reduced the charge from Rape, a felony punishable by imprisonment of up to fifteen years.

The Court accepted defendant's guilty plea to the lesser charge and ordered a pre-sentence investigation. The facts contained in the pre- sentence report, which defendant did not contest either prior to sentencing or in connection with the present motion, reveal a sexual assault on a thirteen-year-old girl by Mr. Fa'amaoni (hereinafter "defendant") and two other adult males. Defendant, who was then twenty years old, appears to have been the ringleader. The probation officer who conducted the pre-sentence investigation noted that the victim [17ASR2d118]

suffered both physically and mentally. ...She sustained bruises and scratches on her body. She reported having nightmares and is seeing a psychiatrist for therapy. She expressed fear for herself and wants the court to keep Defendants as far away from her as possible.

The pre-sentence investigator added that "[t]here is also concern for Defendant[']s welfare because of victim's father and family who have vowed revenge." He noted that defendant Fa'amaoni has been in trouble before, has a serious alcohol problem, and currently lives with his alcoholic father and generally absent mother in a situation that seems calculated to exacerbate these problems. The probation officer concluded that defendant "definitely needs help" and that "[t]he problem is again his home and the lack of authority it exerts." He also recommended that sentence be calculated to give the victim and her family a "lengthy separation" from defendant.

The sentence recommended by the probation officer was substantially identical to that subsequently pronounced by the Court.  Defendant was sentenced to serve five years in the Correctional Facility, with execution of sentence suspended and the defendant placed on probation for five years on condition that the defendant:

(1) actually serve a twenty-month period of detention in the correctional facility, not to be released during this time for any reason other than medical emergencies;

(2) upon the conclusion of the detention period, depart American Samoa for the remainder of the five-year probationary period;

(3) participate in alcohol counseling programs;

(4) consume no alcoholic beverages;

(5) have no contact with the victim or her family; and

(6) be a law abiding citizen.

Defendant now moves for reconsideration of his sentence. The motion for reconsideration was made some 99 days after the announcement of sentence. Although A.S.C.A. § 46.2402(a) provides that "a motion for new trial shall be filed within 10 days after the announcement of judgment or sentence," defendant relies on the provision of Rule 35 of the Trial Court Rules of Criminal Procedure to the effect that "[t]he Court may correct an illegal sentence at any time." [17ASR2d119]

Defendant argues that the first two conditions of his probation are illegal. These are the conditions that he serve twenty months of probationary detention with no release except for medical emergencies and that he then depart the Territory for the remainder of the probationary period.

With respect to the condition that defendant depart the Territory for the latter part of his probationary period, the following facts are relevant: Defendant is a citizen of Western Samoa. He was born in the village of Lepa on the island of Upolu, Western Samoa, and both of his parents are Western Samoans. Defendant came to the Territory in 1974 or 1975 when his parents moved here, apparently for the purpose of employment. In 1988 defendant was detained by the police in connection with an alleged disturbance of the peace and an ensuing fight. No charges were filed, however, because defendant instead returned to Western Samoa at the request of the sa'o of the extended family with whom defendant and his family had been living in American Samoa. A few months later, however, he returned to American Samoa. Shortly thereafter he committed the crime that gave rise to the present case.

II. Jurisdiction

At the outset, we note an apparent conflict between A.S.C.A. § 46.2402 and T.C.R.Cr.P. Rule 35.

The former provision, governing prerequisites to appeal in criminal cases, requires in pertinent part that "a motion for a new trial shall be filed within 10 days after the announcement of judgment or sentence." A.S.C.A. § 46.2402(a) (emphasis added). The ten-day time limit set forth in this section and in its civil counterpart, A.S.C.A. § 43.0802, is mandatory and jurisdictional; errors of law not raised within ten days of judgment or sentence are waived, at least insofar as concerns the right to appeal. Seee.g.Taulaga v. Patea, AP No.19-89 (Opinion and Order issued November 2, 1990); Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146 (1988);Government of American Samoa v. King, AP No. 19-1970; Judicial Memorandum No. 2-87, 4 A.S.R.2d 172 (1987). The formal style of the motion ---for new trial, reconsideration, amendment of judgment, arrest of judgment, vacation of sentence, etc.---has never been held essential to fulfillment of the statutory requirement. Nor is it essential that the motion specifically request a new trial rather than some lesser or different form of relief from the judgment or sentence, provided that the errors asserted by the motion are susceptible of such relief. What is essential is that some motion be filed within the statutory period [17ASR2d120] which fully apprises the Court of the asserted errors in the judgment or sentence, so that the trial court may consider for itself whether any such errors occurred and make appropriate corrections, thereby obviating unnecessary appeals. See, e.g.Taulaga v. PateasupraKim v. Star-Kist Samoa, Inc.supra, 8 A.S.R.2d at 146-47; Government of American Samoa v. KingsupraJudicial Memorandum No. 2-87supra.

Insofar as the cited provision of Rule 35 purports to extend or abolish the mandatory deadline for alleging errors of law in a criminal sentence, it is in direct conflict with the statute. In cases of such conflict the statute, enacted pursuant to the power of the Fono to define and reasonably restrict the jurisdiction of the High Court, must prevail over the judge-made rule. Cf. Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983 (1975);Fanene v. Govermnent of American Samoa, 4 A.S.R. 957 (1968).(1)

Rule 35 was imported almost verbatim from the Federal Rules of Criminal Procedure. This is one of a number of instances in which it appears that the committee that compiled the American Samoa rules did not notice a difference between the federal and territorial statutory schemes which may render such verbatim importation inappropriate or impossible. The federal equivalent of Rule 35 is appropriate in the federal system because the federal courts are not subject to the .jurisdictional limitation imposed on the High Court of American Samoa by A.S.C.A. § 46.2402(a). There is no federal statutory requirement that a motion to reconsider a sentence be made within a certain number of days; rather, the federal rule itself, having been approved by Congress, defines the jurisdiction of the federal district courts with respect to reconsideration of sentences. In contrast, theAmerican Samoa rules were promulgated on the sole authority of the Court and must therefore give way to territorial statutes defining the Court's jurisdiction unless the statutes themselves can be shown to be unconstitutional. See [17ASR2d121] generally American Samoa Government v. Tile, 8 A.S.R.2d 120 (1988).

In some cases ---as when an illegal sentence was pronounced on a defendant unrepresented by counsel, or when the circumst3nces surrounding an error of law were such as to have made it impossible for counsel to call it to the Court's attention within ten days ---a requirement such as that imposed by A.S.C.A. § 46.2402(a) might amount to an unconstitutional denial of liberty without due process of law. No such special circumstances have been shown or alleged in the present case.

This Court does, however, have continuing jurisdiction to terminate or modify the conditions of probation throughout the entire term of the probation. A.S.C.A. § 46.2205. The matters raised by the present motion, although no longer ripe for reconsideration under A.S.C.A. § 46.2402 insofar as they allege defects in the original sentence, might well inform the Court's discretion with respect to whether conditions of probation should be terminated or modified. We therefore construe the present motion as one addressed to our discretion under A.S.C.A. § 46.2205 to terminate the two conditions of probation to which the defendant objects.

III. Detention as a Condition of Probation

Defendant's objection to the condition that he actually serve twenty months in the Correctional Facility, with no release except for medical emergencies, raises exactly the same arguments that were fully considered and rejected by the Appellate Division in the recent case of Atuatasi v. American Samoa Government, 9 A.S.R.2d 67 (1988).

In Atuatasi the Court held that the 1987 amendment to A.S.C.A. § 46.2206, permitting the Court to impose detention as a condition of probation for a period equivalent to one-third of the maximum sentence of imprisonment authorized by law for the crime in question, "has given the probation statute an entirely different purpose" than that reflected in the older and more general statements of statutory purpose on which defendant now relies. 9 A.S.R.2d at 78. Defendant argues, as did the unsuccessful appellant in Atuatasi: (1) that probation can only be imposed where institutional confinement is not necessary for the protection of the public, and (2) that each condition of probation must be "rehabilitative" rather than "retributive." However, Atuatasi upheld a sentence of detention as a condition of probation which had been imposed "precisely because the trial court determined that [the defendant] posed too great a [17ASR2d122] danger to the community if he were eligible for work release or similar early release programs."  Id. at 77.

The whole purpose of the 1987 amendment, as recounted at some length by the trial court in Atuatasi, was to ratify and extend judicial power to use probationary detention in order to prevent prisoners deemed especially dangerous by the sentencing judge from being released almost immediately on furloughs, work releases, unsupervised and open-ended work details, and other euphemistic devices by which convictions and sentences could be effectively cancelled.

Atuatasi v. Moaali'itele, 8 A.S.R. 53, 57, aff'd sub. nom. Atuatasi v. American Samoa Govenment, 9 A.S.R.2d 67 (1988). Yet this is the very complaint the present defendant makes about his sentence: that it denies him access to "rehabilitative programs" by which he would be allowed "unsupervised release from the correctional facility." (Memorandum in Support of Motion for Reconsideration, p. 4.) It was precisely such forms of "rehabilitation" that the legislature gave the Court the power to control in 1987. To argue otherwise "entirely ignores the history of this enactment." Atuatasi v. American Samoa Government9 A.S.R.2d at 78.(2)

Defendant's argument also appears to rest on the erroneous assumption that no punishment which is "retributive" can also be "rehabilitative." On the contrary, we believe that allowing this defendant to come and go freely from the correctional facility---as still appears to happen even with the most violent criminals when the conditions of their [17ASR2d123] confinement are left in the sole discretion of prison officials(3)---would neither punish nor rehabilitate. While this defendant clearly needs help, much of the help he needs is to be taught that human actions have consequences. In our judgment, imposing a moderately serious punishment (one year and eight months of actual detention) for a most serious crime is more likely to bring about a genuine change of heart in this defendant than allowing him a chance to secure early release by "playing the system." Moreover, it is especially important in our judgment that defendant have no contact during the next few years with his victim or with her family. All these goals will be better served, in our judgment, by the sentence we imposed than by a "straight" sentence of five years with no conditions.(4)

[17ASR2d124] Finally, defendant notes that Atuatasi "did not address the constitutional issues raised by the [probationary detention] statute." He does not, however, go on to tell us what these issues might be.

The only trace of a constitutional attack on A.S.C.A. § 46.2206 in defendant's motion or supporting memorandum is a closing observation to the effect that "[i]n the end it is impossible for an individual defendant to determine from the written law what the punishment for crime will be and what rehabilitative help he will be able to receive." This observation has very little to do with the particular statutory provision to which defendant takes exception; rather, it applies as well or nearly as well to almost any modern statutory scheme providing for the punishment of crimes. The laws of American Samoa, without A.S.C.A. § 46.2206, provide not only for imprisonment and fines but also for parole and probation, which may be subject to a variety of conditions, some specified in the statute, some not. The law also provides for pardons at the entire discretion of the Governor. There is no way that a person who is thinking about committing a crime can know in advance exactly which combination of these punishments and exceptions to punishments he may receive.

What everyone can know, and is entitled to know, is that if he is convicted of a class D felony he can be sentenced to serve no more than five years in jail and to pay no more than a $5000 fine. Whether a particular person will actually serve or pay less than these maximum amounts is subject in varying degrees to the discretion of the Court, of the Governor, of the parole board, and of the people who happen to be running the prison at the time the person is sent there. The "unpredictability factor" posed by the additional discretion given the Court by A.S.C.A. § 46.2206 is certainly no greater than that inherent [17ASR2d125] in the pardon power, in the institution of parole, or in probation itself. Defendant had exactly the same notice at the time he committed his crime that he might receive probationary detention as that he might be sentenced to pay a fine or that he might become eligible for parole and yet not be paroled. That he could not know for sure about any of these things does not render the statutes governing them unconstitutional.(5)

IV. Departure from the Territory as a Condition of Probation

At the conclusion of his twenty months of detention in the correctional facility, defendant is to serve the remainder of his probationary period (about three years and six months) outside the Territory. Defendant now raises a host of objections to this condition.

Many of these objections find some support in cases decided by United States courts, which have generally held that it is beyond the power of a sentencing court to order that the defendant leave the jurisdiction.(6) Such orders, however, have been a regular feature of [17ASR2d126] criminal sentences in American Samoa for many years.(7) There are no reported judicial opinions explaining why American Samoa does not follow the majority rule in the United States; this is because the local practice does not appear to have been challenged until quite recently.(8) We must therefore canvass the reasons adduced for the majority rule in order to decide whether these reasons are persuasive in light of the laws and social conditions in force in American Samoa. [17ASR2d127]

A. Cruel and Unusual Punishment

One case, and only one, has held that a condition requiring a defendant to leave the United States is unconstitutional as "either a 'cruel and unusual' punishment or a denial of due process of law."  Dear Wing Jung v. U.S., 312 F.2d 73, 76 (9th Cir. 1962). The court stated that the condition was "equivalent to a 'banishment' from this country and from [appellant's] wife and children, who will presumably remain here." Id. The holding was announced without further analysis and without citation of precedent or of any other source tending to shed light on whether such "banishment" was forbidden by the Eighth Amendment to the United States Constitution. The Court appears to have regarded it as self-evident that the treatment afforded the appellant, apparently an alien of Chinese extraction who had been convicted of making a false statement in an immigration hearing, was outrageous and therefore unconstitutional.

As has been noted by later courts and commentators, the "cruel and unusual" part of the Dear Wing Jung holding is without precedent and is difficult to reconcile with the historical bases of the Eighth Amendment. See, e.g.U.S. v. Martin, 467 F.2d 1366, 1368 (7th Cir. 1972) (citing Gordon & Rosenfeld, Immigration Law and Procedure, at § 9.22); 21 Am.Jur.2d, Criminal Law §§ 624, 627. Indeed, far from being considered cruel and unusual at common law, "banishment and deportation to criminal colonies was a common method of punishment in England." People v. Baum, 231 N.W. 95, 96 (Mich. 1930); see Annot., 70 A.L.R. 100. Moreover, "[d]eportation of the nationals of foreign countries is a popular method of punishing undesirable aliens who commit crimes against the United States." Baumsupra, 231 N.W. at 96.

This last observation by the Baum court is important. If it were truly "cruel and unusual" to send someone back to his home country because he had committed a crime, then such a requirement should be no less unconstitutional if imposed by an executive or administrative agency than if by a court. Yet the United States Immigration and Naturalization Service regularly deports people because they have been convicted of crimes.See 8 U.S.C. §§ 1251(a)(5), (11), (14), (15), (16). So does the Attorney General of American Samoa upon the recommendation of the territorial Immigration Board. See A.S.C.A. §§ 41.0616(4), (6), (9), (10), (11), (16). Although there are, as we shall discuss, persuasive arguments that judicial "banishment" of a criminal may be importantly different than "deportation" of the same criminal by an immigration board, these arguments have more to do with the sources and limitations [17ASR2d128] of institutional authority than with the nature of the punishment itself. The mere fact that a person who has committed a serious crime should be required on that account to return to his own country is not, absent extraordinary circumstances, either cruel or unusual.

B. Other Constitutional Arguments

Much the same can be said for defendant's contention that requiring him to spend part of his probationary period outside the Territory violates his "due process rights, travel rights, and. ...equal protection rights." Defendant provides neither analysis nor authority for these assertions; deportation of convicted criminals under the immigration laws has consistently withstood challenges on all of the grounds now raised.

Equal Protection

Under the law of the United States, "the alien in several respects stands on an equal footing with citizens, but in others has never been conceded legal parity with the citizen." Harisiades v. Shaughnessy, 342 U.S. 580, 586 (1952) (footnotes omitted). Matters having to do with entering. remaining in, and leaving the country are perhaps the most important area of inequality; unlike the citizen, the alien finds himself in an "ambiguous status within the country," the continuation of which "is not his right hut is a matter of permission and tolerance." Id. at 586-87. Thus, it is well settled that the federal government can deport an alien for committing a crime or engaging in other undesirable conduct, although a citizen who did exactly the same thing would be allowed to remain in the country. Seee.g.HarisiadessupraLeTourneur v. Immigration and Naturalization Service, 538 F.2d 1368 (9th Cir. 1976); Van Dijk v. Immigration and Naturalization Service, 440 F.2d 798 (9th Cir. 1971). Indeed, it is now generally recognized that judicial invalidation of certain state laws discriminating against aliens has more to do with "the paramount federal power over immigration and naturalization" than with equal protection proper. Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976); see Toll v. Moreno, 458 U.S.1 (1982);Foley v. Connelie, 435 U.S. 291 (1978).

American Samoa, unlike the fifty states and the other territories of the United States, is specifically excluded from the scope of the federal immigration laws and has, pursuant to authority delegated by Congress, enacted its own such laws. See 8 U.S.C. § 1101(13), (29), (36), (38); A.S.C.A., Title 41. Unlike a state government, which is [17ASR2d129] precluded by "the paramount power over immigration and naturalization " from having its own immigration laws, the government of American Samoa has the same authority ---leaving aside for the moment the question of which branch or branches of government may exercise such authority ---to discriminate between citizens and aliens as is possessed by the government of the United States. With respect to deportation for crime, the territorial government has long exercised such authority; the present deportation statute and its predecessors are similar in form and substance to the federal statute. See A.S.C.A. §§ 41.0616-17; 9 A.S.C. § 377 (1973 ed.); XXIV Code Amer. Samoa, 1961 ed., § 24.0247, enacted by P.L. No. 12-50 (1972); XXIV Code Amer. Samoa, 1961 ed., § 24.0117 (repealed 1972).

Assuming but not deciding that the federal equal protection clause is susceptible of any application at all to the immigration laws of American Samoa,(9) neither that provision nor any paramount interest of the federal government is offended by treating aliens differently from citizens with respect to the right to remain in the Territory after committing a crime.(10) [17ASR2d130]

Due Process

For the same reasons that requiring an alien to leave the country does not deny him the equal protection of the laws, "there is no substantive due process right not to be deported." Linnas v. Immigration and Naturalization Service, 790 F.2d 1024, 1031 (2d Cir. 1986); see Harisiadessupra, 342 U.S. at 590-91. Defendant does, of course, have the right not to have his liberty denied or abridged without procedural due process, but he has not suggested any defects in the procedure by which he was sentenced. Nor can we think of any. Defendant was represented at all stages of this criminal proceeding by competent counsel. He was provided with notice and an opportunity to be heard: the pre-sentence report recommended that defendant be required to serve part of his probation outside the Territory and gave specific reasons for this recommendation. Counsel had access to the pre-sentence report before the hearing and did in fact address some aspects of the report. By means of the present motion, moreover, defendant has been afforded a second opportunity to have the Court consider de novo all his objections to the sentence. Due process has been satisfied. [17ASR2d131]

Right to Travel

It is undeniable that the defendant's sentence restricts his freedom to travel, as criminal sentences tend to do. What has been called the "right to travel," however, has generally been grounded in the Privileges and Immunity Clause of the United States Constitution (art. IV, § 2) or in other provisions having to do with the peculiar inappropriateness of barriers to free passage of goods and people within a federal union. See generally Zobel v. Williams, 457 U.S. 55, 71-81 (1982) (O'Connor, J., concurring); Lutz v. City of York, 899 F.2d 255, 258-66 (3d Cir. 1990), and authorities cited therein. Perhaps the central feature of the "unorganized andunincorporated " status of American Samoa, however, is that the Territory is not part of the federal system and is not intended for incorporation therein.(11) This Territory has its own immigration laws, its own customs authorities, even its own tariffs on products imported from the United States. If the constitutional provisions giving rise to the" right to travel" applied in American Samoa and meant the same things here that they do in New York or Minnesota, all these laws would be unconstitutional.

Moreover, the United States Supreme Court "has often pointed out the crucial difference between the freedom to travel internationally and the right of interstate travel." Califano v. Aznavorian, 439 U.S. 170, 176 (1978) (emphasis added). The right to travel among the several states is a substantive constitutional right and is "virtually unqualified," but "[b]y contrast, the 'right' of international travel has been considered to be no more than an aspect of the 'liberty' protected by the Due Process Clause." International travel can therefore "be regulated within the bounds of due process." Id. (quoting Califano v. Tones, 435 U.S. 1, 4 n.6 (1978)). Insofar as we can determine, the only cases in which restrictions on international travel have been found to deny due process have involved restrictions apparently designed to restrict disfavored speech or political association. SeeAptheker v. Secretary of State, 378 U.S. 500 (1964); Kent v. Dulles, 357 U.S. 116 (1958). No such values are implicated here. [17ASR2d132]

Finally and most importantly, the freedom to travel is perhaps the most obvious of the freedoms a person is liable to lose when he is convicted of committing a crime. It would not be an unconstitutional abridgement of a convict's right to travel if he should be sentence to serve five years in a penitentiary that happened to be outside the Territory. Olim v. Wakinekona, 461 U.S. 238 (1983). Nor, as we have observed, would it violate such a right if the immigration authorities were to deport him immediately upon his release from prison and forbid him ever to return. Harisiadessupra. A fortiori, a requirement that a convict spend part or all of his probation outside the Territory does not unconstitutionally abridge any such right. CfBagley v. Harvey718 F.2d 921, 924-25 (9th Cir. 1983):

There can be no doubt that [defendant's] right to interstate travel was extinguished upon his valid convictions and imprisonment. ...Since parole in a foreign state is clearly less punitive than imprisonment in a foreign state, it cannot be deemed unconstitutional.

See also People v. Ison, 346 N. W.2d 894, 896 (Mich. App. 1984) (citations omitted):

A criminal conviction constitutionally deprives the defendant of much of his liberty; convicts retain some constitutional rights, but those rights are subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. ...A probationer retains only those rights which are consistent with his probationary status. ...A condition of probation restricting the probationer's right to travel may therefore be imposed without violation of the constitution.

In sum, the problem with "judicial banishment" is clearly not that it violates an individual right of the convict to remain in the jurisdiction where he committed his crime. Rather, the problems found by United States courts have had to do with federalism and with the allocation of powers among the co-ordinate branches of government. [17ASR2d133]

C. Federalism, Separation of Powers, and Statutory Interpretation

State courts are agencies of state governments, which have no power to regulate interstate or international immigration. Neither a state court nor any other state agency can require people to leave the country, because the Constitution commits exclusive power over international relations to the federal government. Nor can such an agency require people to leave the state, because open interstate borders are deemed an essential element of the federal union ordained by the Constitution:

The American states are not supreme, independent, sovereign states in relation to those things delegated by the people to the federal government, though the states are all in the Union on the basis of equality of political rights. Independent national states have a right to protect their political institutions, their people, and their independent existence by excluding legally and forcibly undesirable foreigners. This is the basis of the laws of the United States restricting immigration. To permit one state to dump its convict criminals into another would entitle the state believing itself injured thereby to exercise its police and military power, in the interest of its own peace, safety, and welfare, to repel such an invasion. It would tend to incite dissention, provoke retaliation, and disturb that fundamental equality of political rights among the several States which is the basis of the Union itself.

Baumsupra, 231 N.W. at 96.

Although American Samoa is not supreme, independent, or sovereign, it does bear a different relation to the federal union than do the several states of that union. Some aspects of this relationship would appear disadvantageous: for instance, American Samoans have no voice in the election of the President or of voting members of Congress, cannot generally travel to the United States without passports, and may be required to pay United States customs duties on goods they bring into the United States. In other respects this unique relationship permits governmental institutions in American Samoa to do things that cannot be done by equivalent institutions of state government. Thus, for example, the High Court of American Samoa, like the federal courts of the United States but unlike any state court, has admiralty jurisdiction; the territorial [17ASR2d134] Senate is a council of chiefs selected by traditional processes rather than by direct popular election; and. as we have already observed. the territorial government can and does regulate immigration and travel, not only betweenAmerican Samoa and the United States but also between American Samoa and foreign nations.

With respect to questions having to do with travel in and out of the jurisdiction. thereforethe High Court of American Samoa is not in the position of a state court. This Court is an agency of a government which does have the power to "exclud[e] legally and forcibly undesirable foreigners."  Baum, supra, 231 N.W. at 96. In this respect the High Court is analogous to a federal court.

There appears to be no constitutional obstacle to an order by a federal court that probation be served outside the jurisdiction in which the crime was committed, and federal statutes clearly contemplate such orders.(12) InBagleysupra, a federal parolee was required to move from Washington to Iowa, apparently because he had threatened his former wife and the witnesses at his trial. In United States v. Cothran, 855 F.2d 749 (11th Cir. 1988), the court of appeals held that a federal district court had not abused its discretion by requiring a probationer who had "frequent[ed] many high crime areas" in his home county to remain outside the county for two years unless permitted by his probation officer to return.(13)

Federal court orders that a probationer remain outside the United States during the term of probation. however, have been held to be outside the scope of judicial authority. United States v. Jalilian, 896 [17ASR2d135]F.2d 447 (10th Cir. 1990); United States v. Abushoor, 761 F.2d 954 (3d Cir. 1985); United States v. Hernandez, 588 F.2d 346 (2d Cir. 1978); United States v. Castillo-Burgos, 501 F.2d 217 (9th Cir. 1974).This is because "Congress has enacted a detailed scheme for the admission and deportation of aliens" and has "placed the Attorney General in charge." Hernandezsupra, at 351; see Jaliliansupra, at 448-49; Castillo-Burgossupra, at 219-20.

The federal immigration law charges the Attorney General with the administration and enforcement of the chapter of the United States Code pertaining to immigration d also of all other laws "relating to the immigration and naturalization of aliens." Hernandez, supra, at 351, quoting 8 U.S.C. § 1103(a). Significantly, the federal statute also provides:

In any case in which an alien is ordered deported from the United States under the provisions of this chapter, or of any other law or treaty, the decision of the Attorney General shall be final.

8 U.S.C. § 1252 (emphasis added). This final authority of the Attorney General would appear to apply even when someone has been ordered to leave the country under an "other law or treaty" not specifically pertaining to immigration or naturalization. If, therefore, a federal court order that a probationer leave the country should be regarded as a lawful exercise of judicial authority under the probation statute, the order might then be subject to review and possible veto by the Attorney General under 8 U.S.C. § 1252. This scenario "raises difficult questions about possible conflicts between judicial independence and the Attorney General's final authority under section 1252" and therefore "suggests that the probation statute. ..should not be read to authorize de facto deportation orders." Jaliliansupra, at 448-49.

It is important to notice that the exclusive power of the Attorney General over admission and deportation of aliens, although sometimes described in terms of "separation of powers," is a matter of statutory interpretation rather than constitutional command. The federal cases do not stand for the proposition that there is anything inherently "executive" rather than "judicial" about ordering a convicted criminal to leave the country. On the contrary, "Congress might have given the courts a role in determining deportability" but "chose not to." Hernandezsupra, at 351. [17ASR2d136]

The federal decisions, with the exception of Dear Wing Jung, also seem to recognize that in the absence of a pre-emptive commitment of exclusive power to another branch, an order that a probationer move from the scene of his crime to the place of his birth and citizenship would at least sometimes be within the general authority of courts to grant probation "upon such terms and conditions as the court deems best." 18 U.S.C. § 3651,quoted in United States v. Martin, 467 F.2d 1366, 1368 n.4 (7th Cir. 1972); see also Hernandezsupra, at 351-52.(14) Indeed, federal appellate courts have sometimes upheld conditions of probation that required the probationer to leave the country "voluntarily" in exchange for a suspension of part or all of the sentence, provided that the probationer is not barred from re-entering the country during the probation period with the permission of the immigration authorities. MartinsupraUnited States v. Janko, 865 F.2d 1246 (11th Cir. 1989); see United States v. Mercedes-Mercedes, 851 F.2d 529 (1st Cir. 1988) (court could forbid alien probationer who had left the country from re-entering without permission of the "pertinent legal authorities" but could not give the probation officer a veto power over such re-entry). Moreover, the judicial power over probation has generally been found broad enough to validate conditions that were quite onerous and quite restrictive of what would otherwise have been the probationer's rights under other laws, provided that such conditions were reasonably calculated either to rehabilitate the defendant or to protect the public. See, e.g.United States v. Tomy, 605 F.2d 144 (5th Cir. 1979) (probationer barred from being a candidate for public office); United States v. Tolla, 781 F.2d 29 (2d Cir. 1986) (probationer barred from teaching religion to young people).

The decisions holding that this otherwise broad power stops at the water's edge have relied not only on the explicit language of the federal immigration statutes, but also on a long and unbroken tradition that the power to expel aliens is" a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Jaliliansupra, at 448 (quoting Fiallo v. Bell[17ASR2d137] 430 U.S. 787, 792 (1977)); see Hernandezsupra, at 351. This tradition, in turn, has to do with the relationship of immigration policy to" our foreign relations and the national security." Galvan v. Press, 347 U.S. 522,530 (1954).Indeed,

any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.

Harisiadessupra, 342 U.S. at 588-89.

The situation of American Samoa differs from that of the United States in two important respects. In the first place, there is no equivalent in our immigration statutes to 8 U.S.C. § 1252, the provision giving the Attorney General power to review deportation orders even when they arise under "other laws and treaties" not directly concerning immigration or naturalization. The territorial immigration statute does give the Attorney General power to "enforce and administer" those laws that do pertain to immigration and to the status of aliens, and also provides that the procedures set forth therein shall be the exclusive method for "determining the deportability of any person under this chapter." A.S.C.A. §§ 41.0103(a), 41.0614 (emphasis added). The territorial statute is altogether silent about whether anyone might ever be required to leave the Territory as a result of a procedure authorized implicitly or explicitly by some other statute. It is far from clear that the Attorney General's power to administer those laws pertaining directly to immigration should be read to limit any power the courts would otherwise have to grant probation subject to reasonable conditions as authorized by A.S.C.A. § 46.2205.

Moreover, the tradition here with respect to judicial involvement in immigration matters is quite different than the tradition in the United States. The High Court of American Samoa has frequently imposed residence outside the Territory as a condition of probation or suspension of sentence at least since 1964---before the enactment of the present [17ASR2d138] immigration code or its immediate predecessor and before the promulgation of the territorial constitution.(15)

This difference between the historic allocation of authority among the co-ordinate branches of government in American Samoa and among their counterpart institutions in the United States may reflect a recognition that the territorial immigration laws have far more to do with domestic policy than with international relations. The concerns that gave rise to the tradition of exclusive control by the political branches in the United States, having to do with treaties and wars and insurrections, do not weigh heavily here; although the Territory has its own customs and immigration laws, its foreign relations generally are conducted by the government of the United States.

The sole stated purpose of the territorial immigration statute is to preserve the "limited land resources, water, sewage facilities, and educational and economic opportunities" on the seventy-six square miles that compriseAmerican Samoa. A.S.C.A. § 41.0201. Whether the admission, exclusion, or deportation of a particular person would suit this purpose is a policy judgment left in large measure to the discretion of the executive branch. Court orders with respect to probation are designed to realize a different and substantially unrelated set of policies: the protection of the public and the rehabilitation of offenders. The Court has neither competence nor interest in second-guessing the judgment of the immigration authorities on whether the presence of a particular person represents an efficient allocation of economic resources. The sentencing judge is, however, uniquely well-situated to know whether a particular offender needs to be insulated from his past environment, his associates, his victim, or those who assisted in his prosecution and how, under the particular circumstances of his case, best to assure such insulation.

The executive power to deport "undesirables" and the judicial authority over probationers differ markedly not only in purpose but also in scope. Persons deemed deportable under the immigration statute are almost invariably deemed excludable from readmission. See A.S.C.A. §§ 41.0615-41.0616. Such persons may, however, in many [17ASR2d139] circumstances be readmitted at the discretion of the Immigration Board and the Attorney General. See, e.g., A.S.C.A. §§ 41.0613, 41.0617. The practical result is that the Attorney General often has discretion to deport someone and keep him out for life. The Court's power over probationers, in contrast, is strictly limited to the term of the probation, which may not exceed five years. A.S.C.A. § 46.2204. At the end of this time the probationer may be readmitted by the Immigration Board and the Attorney General whether or not the Court considers readmission to be a good idea.

There is, in other word, no necessary conflict between the two statutory schemes relating to probation and to immigration, although they may sometimes generate similar results. The very worst that can be said is that some probation orders might seek to reform an offender or to protect his victims at the expense of what would otherwise be considered an optimal allocation of water, sewage facilities, or educational opportunity; or that some administrative deportation orders might seek to conserve such resources by ridding the Territory of convicts who, from the standpoint of rehabilitation and public protection, might just as well be allowed to stay. These risks are a far cry from the spectre of interference with "foreign relations, the war power, and the maintenance of the republican form of government." Harisiadessupra, 342 U.S. at 588.

In any event, the judiciary has exercised this facet of the probation power for a period spanning at least ten Chief Justices, even more Attorneys General, and any number of Legislatures. Its exercise has had but little quantitative effect on immigration policy taken as a whole, but has figured importantly in the administration of justice. In American Samoa, as in the United States, "the slate is not clean." Galvan v. Presssupra, 347 U.S.at 531.

Since 1964 the Fono has substantially revised and/or recodified the immigration statutes on at least eight occasions. Act of 10 Jan 1972, P.L. No. 12-50; Immigration Act of 1984, P.L. No. 18-52; P.L. No. 10-65 (1968); P.L. No. 11-58 (1969); American Samoa Criminal Justice Act of 1979, P.L. No. 16-43 § 2 (1979); P.L. No. 18-16 § 1 (1983); P.L. No. 20-15 § 1 (1987); P.L. No. 20-56 (1988). It would be fatuous to suppose that the members of the Fono have been unaware during all this time of the frequent and open resort by the judiciary to conditions of probation such as the one to which defendant now objects. Had the Fonodisapproved of this long-standing judicial application of the probation statute (or of the equally obvious practical construction of the [17ASR2d140] immigration statute as imposing no restriction on judicial power to prescribe the conditions of probation), it had the power to abolish the practice by statute. On the contrary, however, the only legislative actions that can be construed as expressing legislative approval or disapproval of judicial policy with respect to probation were the 1983 and 1987 amendments to A.S.C.A. § 46.2206. These amendments sought explicitly to increase the flexibility afforded the judiciary with respect to probation, and implicitly abolished any previous requirement that terms of probation be designed exclusively to rehabilitate. See Atuatasisupra, 9 A.S.R.2d at 78.

Legislative inaction in such circumstances strongly suggests agreement with, or at least acquiescence in, the judicial interpretation of the laws in question. See Bob Jones University v. United States, 461 U.S. 574, 600-01 (1983). When the legislature re-enacts a statute or adopts amendments to it "without a suggestion of disagreement" with a prior judicial construction, there is an even stronger presumption that the legislature has adopted the prior construction. Union Electric Co. v. Illinois Commerce Commission, 396 N.E.2d 510, 518 (III. 1979); see Merrill Lynch Pierce Felmer & Smith v. Curran, 456 U.S. 353, 382 n.66 (1982), and authorities cited therein; 2A Sutherland Statutory Const. §§ 49.03-05, 49.09-10 (4th ed. 1984).

The practical construction long placed on the American Samoa probation and immigration statutes,(16) together with the Fono's conspicuous failure for least a quarter of a century to restrain the Court from imposing conditions like the one now at issue, convince us that such conditions encroach neither upon the legislative power to prescribe punishment nor upon the powers delegated to the executive branch by the immigration statute.

D. Public Policy

Having determined that the disputed condition of defendant's probation is neither unconstitutional nor prohibited by law, we are left to decide whether such a condition is a reasonable exercise of our probation power.[17ASR2d141]

The reported opinions rejecting "judicial banishment" as a sentencing option seem to have been motivated not so much by the specific constitutional and statutory arguments raised therein as by related questions of public policy. Some courts have gone so far as to lay down a rule that it is always contrary to public policy for one jurisdiction to "dump" a convict on another. Seee.g.State v. Doughtie, 74 S.E.2d 922 (N.C. 1953); Johnson v. State, 672 S.W.2d 621 (Tex. App. 1984). The forcefulness with which this rule is stated tends to vary inversely with the analysis offered in its support; in most cases the court simply invokes a term such as "dumping" or "banishment" and considers the point won. Seee.g.Dear Wong JungsupraJohnsonsupra. In other cases, however, the anti-dumping rule has been explained by reference to three main arguments:

1) That requiring a person to leave or stay out of the state is inconsistent with federalism. This concern was best articulated by the Michigan court in Baum, supra, discussed in Part IV(C) of the present opinion.

2) That such a condition cannot be consistent with rehabilitation, since the Court cannot supervise the probationer once he is outside the Court's jurisdiction, and cannot be consistent with public protection, since the probationer is no less likely to commit crimes in one jurisdiction than in another. See Abushaarsupra, at 761 F.2d at 959- 60, and authorities cited therein.

3) That "banishment, " although perhaps not a cruel and unusual punishment within the meaning of the Constitution, is nevertheless a harsh one. "Through the ages the lot of the exile has been hard." Doughtiesupra, 74 S.E.2d at 924; see Abushaarsupra, 761 F.2d at 959.

For reasons we have discussed, federalism is not a major concern in American Samoa. It is not a concern at all in the present case, since the defendant would appear ineligible for admission into the United States (see 8 U.S.C. § 1182(a)(9)) and will presumably return to his native Western Samoa.

The remaining arguments are not without force, but they state only one side of the case and they depend heavily on the circumstances.

One of the most important circumstances of the present case is that the defendant chose to commit his crime in a tiny jurisdiction in [17ASR2d142] which, if neither incarcerated nor "banished," he is virtually certain to have frequent chance encounters with his terrified fourteen-year-old victim and with members of her family. The condition that defendant leave the Territory was imposed by the Court primarily in the belief that the young victim of this crime is entitled to a longer respite from contact with the defendant than can be afforded by the twenty-month detention period. This concern is manifestly related to public protection, at least in light of the pre-sentence investigator's findings about the victim's mental state. Although it is always possible that the defendant could commit another crime no matter where he might be, our primary concern at the time of sentencing was that the defendant would do further harm to his victim in American Samoa, whether or not he should commit another crime.

Nor is it always true that a condition can have no rehabilitative effect simply because it will not be administered by a probation officer. In this case it was deemed important for the defendant's own good to insulate him from contact with the victim's family and with his companions in crime.

Finally, the Court was of the opinion that a sojourn in his native village in Western Samoa might expose the defendant to a system of values more wholesome, and of social controls more effective, than those at work in his previous environment. Western Samoa is a more traditional country than American Samoa; it is more difficult there for a young man to avoid the demands of the extended family, church, and matai system, as the present defendant has been able to do thus far. His home life in the village of Fagatogo prior to his incarceration was almost certainly a major contributing factor to his alcoholism and to his related criminal conduct. We infer from the pre-sentence report that there are several extended families, if not in his native village of Lepa then elsewhere in Western Samoa, with whom defendant has a traditional right to live in exchange for service, obedience, and good conduct. We can do far more good for him by maximizing the likelihood that he will be exposed to a system that inculcates these virtues than by letting him resume his former life in Fagatogo subject to the requirement that he meet with a probation officer once a month.

Recent cases have recognized that rehabilitation may sometimes be served by keeping a person away from the environment that contributed to his crime ---and that putting some distance between the criminal and his victim may be justified as reasonably related to public protection. Thus, in Cothransupra, a probationer was required to stay [17ASR2d143] out of his home county, which includes Atlanta, because his presence in certain criminal haunts in that city had contributed to his criminal behavior. In Bagley, supra, the court upheld a decision by parole authorities to require a parolee who had threatened his former wife and certain witnesses against him to move from Washington to Iowa. In Cobb v. State, 437 So. 2d 1218 (Miss. 1983), the probationer was required to stay 125 miles away from his home county for a period of five years; the defendant had been convicted of an aggravated assault upon a relative who lived three-eighths of a mile away from him, and the court found this proximity to be a likely source of further trouble among the relatives. See also State v. Collett, 208 S.E.2d 472 (Ga. 1974) (probationer required to remain- outside seven-county area); Parrish v. State, 355 S.E.2d 682, 684 (Ga. App. 1987) (banishment of probationer from the judicial circuit upheld as "prompted by a rational concern for the safety of others in the community and for defendant's own safety"). The 1984 amendment to the federal probation statute, 18 U.S.C. § 3563(b)(14), also specifically recognizes that such conditions can be reasonably related to the purposes of probation.

A requirement that a probationer live outside American Samoa is equivalent in many ways to a requirement that he live outside a particular township or a very small county in the United States. The practical effect of the order in the present case is that the defendant will almost certainly reside sixty miles away on his native island of Upolu. Although there is an international border between Upolu and the adjacent island of Tutuila, the two islands share a common language, history, and culture. Our order that the defendant move from the relatively large, modern, and quasi-urban village of Fagatogo to Lepa or some other village in Western Samoa is calculated to achieve roughly the same effects as the requirement that the defendant in Cothran move from Atlanta to a neighboring rural or suburban county.(17) [17ASR2d144]

Nor (although this would not necessarily be dispositive) can we discern that the condition will bring about any important changes in defendant's immigration status. He would presently appear to be deportable under A.S.C.A. § 41.0617(4) as a person who has been "convicted of a crime involving moral turpitude committed within 5 years after any entry, " and if he were out of the Territory he would be excludable as a convicted felon under A.S.C.A. § 41.0615(8). In either event the Attorney General may have discretion to allow him to return and/or remain. See A.S.C.A. § 41.0617. Any other practical effects on defendant's life are likely to be wholly salutary.

We conclude that the condition that defendant reside outside the Territory during part of his probation is not unduly harsh and is reasonably related to the purposes of probation. We therefore decline to revoke the condition.

V. Conclusion and Order

Insofar as the motion is intended as a motion for new trial under A.S.C.A. § 46.2402(a) or is intended to be in lieu of such a motion, it is denied for want of jurisdiction.

Insofar as the motion is addressed to our discretion under A.S.C.A. § 46.2205 to revoke or modify the conditions of probation at any time during the period of probation, it is denied on the merits.

It is so Ordered.

********

1. In Fanene the defendant argued that he had the right to appeal an allegedly unlawful sentence some six months after it had been announced, on the ground that under the Revised Constitution of American Samoa "the legislature had no power to enact C.A.S. 3.0502 [the then-applicable thirty-day time limit for appeals] or any laws governing the jurisdiction, operations or procedures of the Judiciary." 4 A.S.R. at 961. The Appellate Division rejected this contention and held that the sentence could only have been appealed within thirty days of the time it was announced. Id. at 964. The Appellate Division cited the ten-day motion for new trial statute, now codified as A.S.C.A. §§ 43.0802(a), as a further legislative restriction on the right to appeal, but found it inapplicable because it had been enacted subsequent to the date on which the judgment and sentence in the case then before the Court had been announced. Id. at 962-63.

2. In rejecting the contention that detention under A.S.C .A. §§ 46.2206 must be "rehahibitative" rather than "retributive," the appellate opinion in Atuotosi referred to the legislative history of the statute ''as detailed by the court below." 9 A.S.R.2d at 78. That account of the legislative history is reported in the trial court opinion at 8 A.S.R.2d at 60-It includes the observation that prior to 1987

[a] convict's access to various forms of early release depended more on having a personal relationship with some government official inside or outside the prison ---for a time it seemed that almost any official would do, and that almost every prisoner had some such relationship ---than with any formal criteria.

Id. at 60. The use of probationary detention in the present case, in order to deny a serious sex offender the possibility of such early and unsupervised release from incarceration, was squarely within the legislative mandate found by the trial and appellate courts in Atuotosi.

3. See, e.g.In re A Juvenile, UTC 103186 (partial transcript of Initial Appearance, November 28, 1990), in which the following exchange took place between the Chief Justice and a man who had accompanied his minor child to a traffic appearance:

THE COURT: Sir, what's your name?

MR. TALAMOA: Paulo Talamoa.

THE COURT: Aren't you supposed to be serving a court sentence at this time?

MR. TALAMOA: Yes, Your Honor. I've been released on work release, Your Honor.

THE COURT: Who released you on work release?

MR. TALAMOA: I do not have an understanding of that, but I think it's from the Commissioner and also from the Correctional Facility.

THE COURT: How long have you been on work release?

MR. TALAMOA: It's not a year now.

About eighteen months before, the Chief Justice had sentenced Mr. Talamoa to serve forty years in the Correctional Facility for two counts of Murder in the Second Degree. American Samoa Government v. Talamoa, CR No. 80-88.

4. Defendant's argument that no condition of probation is valid unless it will help to rehabilitate the probationer relies heavily on the fact that our probation statute, A.S.C.A. § 46.2201 et seq., is modeled after the recently repealed federal probation statute. Contrary to defendant's position, however, the federal circuit courts were unanimous in recognizing that a condition was valid under the former statute if it served the purpose of rehabilitation or public protection. Seee.g.United States v. Stine, 646 F.2d 839, 843 n.7 (3d Cir. 1981); United States v. Tomy, 605 F.2d 144, 148 (5th Cir. 1980); United States v. Torrez-Flores, 624 F.2d 776, 783-84 (7th Cir. 1980); United States v. Consuelo-Gonzalez, 521 F.2d 259, 263-64 (9th Cir. 1975). "Public protection" includes the protection of particular people from the probationer as well as the deterrence of future misconduct by the probationer himself ("specific deterrence"). See Tomysupra, 605 F.2d at 148; United Slates v. Abushaar, 761 F.2d 954, 959 (3d Cir. 1985).

The only substantial disagreement among the circuits has been about whether a condition can be upheld on the sole ground that it is a form of punishment, or that it will deter others from committing offenses such as that of the defendant ("general deterrence"). Compare Tomysupra, 605 F.2d at 148 with Abushaarsupra761 F.2d at 959.  Some Ninth Circuit cases suggest a somewhat different test: that particular conditions can be designed primarily for public protection or even for general deterrence so long as all the conditions construed together should contribute to rehabilitation. See, e.g.Consuelo-Gonzalezsupra, at 266-67. Even the Ninth Circuit has recognized that provisions designed to rehabilitate and/or to protect the public may have an incidental punitive effect. Higdon v. United States, 627 F.2d 893, 898 (9th Cir. 1980).

Even prior to the 1987 amendment, therefore, conditions of probation were valid under A.S.C.A. § 46.2205 provided that they were reasonably related either to rehabilitation or to public protection, at least if the entire sentence considered as a whole was reasonably calculated to achieve both of these purposes. Since the 1987 amendment, moreover, sentencing judges are free to impose probation "precisely the opposite reasons" than the rehabilitation-related recitals contained in A.S.C.A, § 46.2203 and in the parallel provision of the former federal law.  Alualasisupra, at 79.

5. To answer a constitutional argument hinted at even more obliquely by the defendant, there is no constitutional right to rehabilitation at public expense. Marshall v. Parker, 470 F.2d 34, 38 (9th Cir. 1972), aff'd 414 U.S. 417 (1974). Nor does the enactment of statutes authorizing the creation of particular rehabilitative programs---or , more to the present point, of opportunities for early release ---give any particular criminal a constitutionally protected "liberty interest" in being allowed to participate in them. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979). Even if there were such a statutory liberty interest, it would be subject to the grant of judicial discretion contained in A.S.C.A. § 46.2205 and would entitle a convict at most to fair notice, a hearing, and perhaps a statement of the Court's reasons for sentencing him under a regime denying access to such programs. See Greenholtzsupra, at 15-16. The Court observed all these procedures in sentencing the present defendant.

6. See, e.g.Dear Wing Jung v. United States, 312 F.2d 73 (9th Cir. 1962); United States v. Abushaar, 761 F.2d 954 (3d Cir. 1985); United States v. Hernandez, 588 F.2d 346 (2d Cir. 1978); Dear Wing Jung v. United States, 312 F.2d 73 (9th Cir. 1962); People v. Baum, 231 N.W. 95 (Mich. 1930), 70 A.L.R. 99 (1931); State v. Doughtie, 74 S.E.2d 922 (N.C. 1953); Johnson v. State, 672 S.W.2d 621 (Tex. App. 1984).  But see United States v. Cothran, 855 F.2d 749 (11th Cir. 1988); United States v. Martin, 467 F.2d 1366 (7th Cir. 1972); State v. Collett, 208 S.E.2d 472 (Ga. 1974); Parrish v. State, 355 S.E.2d 682 (Ga. App. 1987); Cobb v. State, 437 So. 2d 1218 (Miss. 1983). See also 18 U.S.C. §§ 3563(b)(14) (1984 provision giving federal courts the power to impose a condition of probation that the defendant "reside in a specified place or area, or refrain from residing in a specified place or area.")

7. See, e.g.Government of American Samoa v. Aonga, CR No. 93-1964 (leave Territory and not return); Government of American Samoa v. Vaoga, CR No. 91-1964 (leave Territory and not return);Government of American Samoa v. Patu, CR No.48-1966 (leave and never enter illegally again); Government of American Samoa v. Mamoe, CR No. 1001-74 (three years outside Territory); Government of American Samoa v. Moamoa, CR No. 928-73 (live years outside Territory); Government of American Samoa v. Vatuia, CR No.157-75 (never return to Territory except to change planes or ships); Government of American Samoa v. Pauli, CR No.138-75 (leave Territory forever); Government of American Samoa v. Wootton, CR No. 119-75 (one year outside Territory); Government of American Samoa v. Ieremia, CR No.1081-74 (leave Territory for unstated term); Government of American Samoa v. Leilua, CR No.51-81 (eighteen months outside Territory) Government of American Samoa v. Tunu, CR No.39-81 (five years outside Territory) Government of American Samoa v. Fuimaono, CR No.35-81 (two years outside Territory) American Samoa v. Uiliata, CR No. 2-86 (fifty weeks in detention, leave Territory for the remainder of five-year probation); American Samoa Government v. Haro, CR No. 7 (four years outside Territory); American Samoa Government v. Lloyd, CR No. l0-87 (leave the Territory after serving three years of detention and not re-enter for balance of twenty-five year sentence); American Samoa Government v. Wong, CR No. 86-88 (ninety days detention, depart American Samoa and not return during the remainder of five years probation); American Samoa Government v. Tualevao, CR No. 93-88 (two years detention. remainder of five-year probationary period outside Territory); American Samoa Government v. Fa'atiga, CR No.29-89 (six months confinement, leave Territory for remainder of five-year probation); American Samoa Government v. Lia, CR No.67-89 (twenty months incarceration, remainder of five year probation outside Territory). See also Government of American Samoa v. Mata'afa, CR No.13-82 (reside with uncle on the island of Ta'u during three year probation period, not return to island of Tutuila without permission of Court). This list is illustrative and includes only a fraction of the cases in which such a condition has been imposed.

8. In American Government v. Meleisea, CR No. 84-89, the Court sentenced the defendant to serve two years of probation outside the Territory. The defendant moved for a new trial on the ground that this part of the sentence was illegal. The Court then modified the sentence so as to eliminate the condition, basing its decision solely on the ground that (1) although originally charged with a felony, the defendant had been convicted only of a Class C misdemeanor for which the maximum jail term was fifteen days; and (2) defendant had already been incarcerated for more than fifteen days before posting bail. The Court stated from the bench, however, that conditions requiring probationers to spend some time outside the Territory were frequently imposed and were appropriate in some circumstances. Id., Hearing on Motion for New Trial, June 14,1989.

9. American Samoa is an unorganized, unincorporated Territory not designated by Congress for eventual incorporation into the United States proper. Accordingly, the federal Constitution applies here only insofar as its tenets restate "those fundamental limitations in favor of personal rights" that are "the basis of all free government," or which have been specifically made applicable by Act of Congress. Dorr v. United States, 195 U.S. 138, 146 (1922); see Macomber v. American Samoa Government, 12 A.S.R.2d 29, 30 (1989) ("The extent to which the equal protection clause of the Fourteenth Amendment applies in the territory is unclear[.]");Banks v. American Samoa Government, 4 A.S.R.2d 113, 123-28 (1987) (discussing the extent to which federal equal protection doctrine applies in American Samoa under the doctrine of Dorr and the other Insular Cases).

The Revised Constitution of American Samoa, promulgated in 1967 under the authority of the Secretary of the Interior, contains no equal protection clause.

10. In any event, the premise of defendant's equal protection argument ---that requiring probation to be spent outside the Territory "is merely a punitive measure" which "is only used against foreign nationals"---is incorrect. Although the imposition of such a condition on a citizen presents somewhat different constitutional, philosophical, and practical problems than in the case of an alien, this is an extraordinarily small island, and the Court has occasionally ordered a particularly troublesome or troubled convict to leave it for a while even though he was not only a resident but also a citizen.

Thus, in American Samoa Government v. Haro, CR No.8-87, an American Samoan who had been raised in California and who had committed manslaughter shortly after returning to Samoa was required to spend a year of his probation in detention and the remaining four years outside the Territory; the record reflects that the Court expected him to reside with his grandmother in the United States.

In American Samoa Government v. Satele, CR No. 8-81, the defendant was found to have committed two homicides but to have been not guilty of murder by reason of insanity. The court accepted psychiatric testimony offered by defendant to the effect that temporary insanity had been triggered by the strains of living on a small island and by pressures imposed by the matai system. Among other conditions of defendant's release from a psychiatric hospital was that he "reside with his wife in Los Angeles, California, unless granted permission to reside elsewhere.

In American Samoa Government v. Mata'afa, CR No. 12-82, a young first offender who had been born on the island of Tutuila and resided there was sentenced to serve his probation with a relative on Tau, an even smaller island about sixty miles away. Although Tau is within American Samoa, it contains only a few hundred people, few modern conveniences, and almost no opportunities for employment. A condition that a probationer reside on the far larger and more cosmopolitan island of Upolu in Western Samoa would be considered far less burdensome by most Samoans.

We express no opinion on the constitutionality of the "banishments" in HaroSatele, and Mata'afa other than to observe that they suggest the Court has not traditionally viewed such conditions as punishment or as a back-door way of deporting undesirable aliens. Rather, the conditions appear to have been imposed for the same reasons we imposed a similar condition on the present defendant: for the protection of the public, with particular reference to the victim and others who may have assisted in the prosecution, and to remove the defendant from an environment found to have contributed to his criminal behavior.

11. See note 9, supra, and authorities cited therein. Cf. Barnard v. Thorsten, 489 U.S. 546, 552 (1989), holding the Privileges and Immunities Clause applicable to the Virgin Islands not because it applies of its own force in territories and possessions of the United States. but because "Congress has made [the clause] applicable to the Virgin Islands in the Revised Organic Act." American Samoa has no organic act.

12. See 18 U.S.C. § 3563(b)(14) (court may require a probationer to "reside in a specified place or area, or refrain from residing in a specified place or area"); id. § 3605 (" A court, after imposing a sentence, may transfer jurisdiction over a probationer. ..to the district court for any other district to which the person is required to proceed as a condition of his probation or release. ..."). Cf. 28 C.F.R. § 2.33(b) (a parolee should be released to the place of his residence "unless. ..another place of residence will serve the public interest more effectively or will improve the probability of the applicant's readjustment.").

13. See also Alonzo v. Rozanski, 808 F.2d 637 (7th Cir. 1986), upholding the refusal of a probation officer to let a paroled drug offender move to a house he had bought in Florida, where there were already too many drug offenders for probation officers to supervise." Alonzo's control of abode was extinguished for the entire term of his sentence, by the judgment of conviction." Id. at 638. In Rizzo v. Terenzi, 619 F.Supp. 1186 (E.D.N.Y. 1985) (upholding the refusal by another probation officer to allow another convicted drug importer to visit his family home in Florida).

14. 18 U.S.C. § 3651 has recently been repealed and replaced by 18 U.S.C. §§ 3563, quoted in note 12 supra, which explicitly gives courts the power to require probationers to reside in or outside of particular places. However, in Jalilian, supra, the Tenth Circuit held that even this language should not be read as a grant of power to require a probationer to leave the country. As discussed in the text supra, this holding rested not on the language of the new probation statute itself, but on the possibility that "de facto deportation orders" might be reviewable by the Attorney General and thus raise questions about the independence of the judiciary. Id. at 448-49.

15. We do not know just when the practice began, because the records of our criminal cases before the mid-1960s are practically nonexistent. The presiding judge in the two 1964 cases was Chief Justice Morrow, who had held that office since 1937; to say that a practice or procedure in the High Court of American Samoa dates back to Morrow is to say that the memory of man runs not to the contrary.

16. It is a measure of the breadth of the consensus behind this construction that the Attorney General, whose power the defendant says we are usurping, has frequently recommended that the Court require convicts to spend part or all of their probationary period outside the Territory.

17. Although it was and is our intention that defendant should go to live with his extended family in Lepa or in some similar village, our order does not strictly require this. Rather, the defendant is effectively given the run ofWestern Samoa, which includes over three-fourths of the population and nine-tenths of the land area of Samoa. It is even theoretically possible, although most unlikely, that he could find some other country willing to permit residency by a non-citizen recently convicted of a felony. In this respect our order is similar to the one in Cothran, which excluded the defendant from the county that included Atlanta but not from every other place in which he might find similar criminal opportunities. As the Eleventh Circuit observed in Cothran, the mere possibility that the defendant might replicate in another place the kind of life he had in the place from which the probation order excludes him does not render the order invalid. Rather, "such remarks merely invite the court to question whether [the] present sentence is too lenient." Cothran855 F.2d at 753. We would consider modifying our order to require residence in a particular village should either the Government or the defendant so move.

Cravens; Beaver v.


LEFAGA BEAVER, Plaintiff

v.

WILLIAM CRAVENS, SCOTT BARRETT, 
SOUTH PACIFIC TRADERS, INC., DOES I-XX, Defendants

High Court of American Samoa 
Trial Division

CA No.72-90

October 19, 1990

__________

In ruling upon a motion to dismiss for failure to state a claim, the complaint must be liberally construed and viewed in the light most favorable to the plaintiff.

Court denied a motion to dismiss for failure to state a claim which relied on plaintiffs failure to specially plead the elements needed for a shareholder's derivative action, since the pleaded causes of action were personal, not derivative, and plaintiff was seeking redress for herself from the corporation rather than suing on its behalf. T.C.R.C.P. §§ 12(b)(6), 23.1.

Court denied a motion to dismiss by defendants/trustees which argued that plaintiff was estopped from alleging breach of such trust by a trust provision requiring that disputes [17ASR2d7] regarding interpretation be referred to the probate court for instructions, since such a piecemeal and novel approach to defining and sorting out the issues between litigants was meritless and unfounded.

Before KRUSE, Chief Justice, AFUOLA, Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, Charles v. Ala'ilima

  For Defendants, John L. Ward II

On Motion to Dismiss:

Plaintiff has filed suit alleging a breach of a family trust by the defendant trustees. The trust was settled by plaintiff and her late husband. The defendants move to dismiss plaintiffs complaint, without prejudice, for failure to state a claim for which relief may be granted, and/or alternatively direct the parties to proceed with defendants' petition filed in "Probate Court" which has been docketed as In Re Beaver Family Trust, PR NO.19-90.

That aspect of the motion based on Trial Court Rules of Civil Procedure, Rule 12(b)(6), rests on the argument that plaintiff is essentially bringing a shareholder's derivative action and that her complaint has failed to comply with the special pleading requirements of Trial Court Rules of Civil Procedure, Rule 23.1.

Alternatively, dismissal is sought on the contention that plaintiff is estopped from filing an action, as she has done so here, because of a provision in the trust instrument which provides for the referral of any dispute regarding interpretation of the trust to the "Probate Court for instructions." Further, the defendants urge that it would be more economical and expedient to submit the singular issue ---whether plaintiff has anything more in the trust than a beneficial interest--- to the Probate Court for determination rather than exposing the trust to a far- ranging trial necessarily proposed by plaintiffs lawsuit. In other words, the defendants suggests that plaintiffs lawsuit should be suspended on a wait-and-see basis pending the Court's prior determination of defendants' "Petition [to the Probate Court] for Advice and Instructions." The thinking appears to be that the Probate Court's determination of the above-stated issue would also be dispositive of any and all remaining disputes between the parties. [17ASR2d8]

Discussion

In determining a motion to dismiss for failure to state a claim, the complaint is to be liberally construed and viewed in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232 (1974). At this stage with the pleadings, we cannot agree with the defendants' characterization of plaintiffs suit as being a shareholder's derivative action. The causes alleged in the complaint are hardly derivative but personal, and Trial Court Rules of Civil Procedure Rule 23.1 applies only where the action is a derivative action by a shareholder suing on behalf of the legal entity which is a corporation. 3B J. Moore & J . Kennedy, Moore's Federal Practice' 23.1.16 (2ndEd. 1985). The rule is not applicable to the situation where plaintiff is asserting a private injury for which personal redress is being sought. See Simcox v. San Juan Shipyard, Inc., 754 F.2d 430 (lst Cir. 1985). Plaintiff is here suing for herself. She is not seeking redress on behalf of the corporation; indeed, she is attempting to seek redress from the corporation by way of a claim for shares and insurance proceeds.

As to the alternative grounds for the motion to dismiss, we are not persuaded by the estoppel argument advanced by defendants as somehow establishing a contingent bar to, or an immunity from, suit. As noted above, the bottom line of the motion looks very much like a request to postpone plaintiffs lawsuit until the Court first rules on the defendants' legal theories concerning the parties' differences. This novel and piecemeal approach to sorting out and defining the issues between litigants is without merit or foundation.

For reasons given, the motion is denied. It is so Ordered.

********

American Samoa Gov’t v. Afamasaga,


GOVERNMENT OF AMERICAN SAMOA, Plaintiff

v.

INA AFAMASAGA, Defendant

High Court of American Samoa 
Trial Division

CR No. 27-90

December 5, 1990

__________

Eyewitness identification evidence is unreliable and must be suppressed as violating due process if suggestive identification procedures have led to a very substantial likelihood of irreparable misidentification.

Identification obtained by an impermissibly suggestive identification procedure may be admitted if it was nonetheless reliable, considering the totality of the circumstances, since the critical factor determining admission is reliability.

In assessing the reliability of identification evidence obtained by an impermissibly suggestive identification procedure, courts must consider the witness' chance to view the criminal when the crime occurred, his attentiveness, how accurately he previously described the criminal, how certainly he identified the defendant when confronted with him, and how much time elapsed between the crime and the confrontation, and weigh against such factors the corrupting effect of the suggestive identification.

Though identification procedure whereby complainant identified defendant in a one-on-one confrontation at police station was impermissibly suggestive, under the totality of the circumstances it was not so unfair as to violate due process, since complainant identified defendant without police prompting or comment, had seen him shortly before the crime, and at the scene of the crime had described physical characteristics and clothing of her assailant which matched defendant and had pointed out a third party who not only had also seen defendant before the crime but then identified him to the police immediately afterwards.

Exclusionary rule developed as a prophylactic measure against police excessiveness.

Where defendant voluntarily accompanied officers to police station where he was identified by complainant, photographed, given a Miranda warning before making a written statement, and then arrested without a warrant, motion to suppress the photos and statement as fruits of an unlawful seizure was denied since the evidence showed defendant was not in a custodial situation when the photos and statement were taken.

Court need not decide whether an arrest was valid when the statement and photos sought to be suppressed were taken earlier, since there was no causal relationship between the arrest and the evidence sought to be suppressed. [17ASR2d146]

Criminal charge using statutory 1anguage is permissible providing the statute sets forth fully, directly and expressly, without any uncertainty or ambiguity, all the elements needed to comprise the offense intended to be punished. T.C.R.Cr.P. 7(c).

Though a bill of information must plainly, concisely, and definitely state in writing the essential facts constituting the offense charged, it need not set forth facts and evidentiary details needed to establish each element of the charged offense. T.C.R.Cr.P. 7(c).

Bill of information charging sodomy without specifying which of the various sexual acts constituting an element of the offense was alleged, sufficiently informed defendant of the nature of the charges to enable him to prepare his defense and did not subject him to double jeopardy since he could refer to the entire record of the preliminary examination, not just the bill of information, when claiming double jeopardy from a subsequent prosecution.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, Falefatu J. Ala'ilima-UtuAssistant Attorney General

  For Defendant, Barry I. Rose, Assistant Public Defender

On Motion to Suppress and Dismiss:

The defendant filed a series of pre-trial motions.

I. Suggestive Showup

The defendant is charged with a number of sexual and related offenses. Among other things, he complains that he was identified by the complainant witness on a one-on-one confrontation at the police station, in circumstances which were unnecessarily suggestive and so unfair as to deny him of rights to due process. He moves to suppress this identification as inadmissible evidence, as well as any subsequent identification by the complainant witness.

Due process mandates that eyewitness identification evidence is not reliable and must be suppressed "if suggestive identification procedures have led to a very substantial likelihood of irreparable misidentification." Kirby v. Illinois, 406 U.S. 682, 691 (1972); see also Simmons v. United States, 390 U.S. 377, 384 (1968). However, even an impermissibly suggestive identification procedure does not render an identification inadmissible if, in the totality of the circumstances, the identification was nonetheless reliable. Manson v. Braithwaite, 432 U.S. [17ASR2d147] 98 (1977). The Supreme Court here concluded that "reliability is the linchpin in determining admissibility of identification testimony." Id. at 114. In this connection, the factors to be considered include

the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainly demonstrated at the confrontation, and the time between the crime and confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Id.

Although, as defendant points out, a one-on-one showup has been said to be suggestive, Stovall v. Dellmo, 388 U.S. 293 at 302 (1967), under the totality of the circumstances of the matter before us, we are satisfied that the identification of the defendant by the complainant was not so suggestive as to constitute a violation of due process. The evidence clearly demonstrated reliability. According to Officer Leota, he took the complainant to a room where the defendant was waiting and without his prompting or saying anything to her, she identified the defendant as her assailant. In addition, it was equally clear on the evidence that the complainant knew exactly who she was looking for even before she went into the identification room. At the vicinity of the crime, she described her attacker to Officer Leota as having black hair, a black moustache, worn blue shorts, and certain scratch marks on his body. She also related to the officer that she had even seen her assailant before the crime occurred, at a time when he tried to accost her while she sought refuge in a small shack to avoid a stone throwing melee she earlier encountered while trying to get home from work. She further disclosed that a third party, which she actually pointed out to officer Leota at the scene, was there also at the shack thwarting the defendant's attempts to get to the complainant. That third party, Vine Sauiluma, was able to give Officer Leota a name and a lead to the defendant's home. This information was given to the officers immediately after she was found running naked towards a police unit calling for help and complaining of rape.

We find that the defendant's claim about suffering an unduly suggestive or unfair showup not to be meritorious and, accordingly, deny his motion. [17ASR2d148]

II. Unlawful Seizure

Defendant also moves to suppress a certain written statement which he made at the police station and certain photographs taken of him that evening by the police. The motion is based upon the assertion that defendant was illegally under arrest when taken into custody without a warrant, and that, therefore, the fruits of that unlawful seizure are excludable.

For reasons given, this motion is also denied. The evidence shows that the defendant had voluntarily accompanied the officers to the police station on the morning in question. When the defendant left home with the police officers, it was with his father's knowledge. Indeed, it was his father who woke the defendant, together with another relative who was also sought by the officers for questioning. The ride to the station was in a light-hearted mood of jest; the defendant and his relative were laughing and joking on the way; they asked the officers to stop for cigarettes and the officers accommodated their request.

The evidence also shows that the statement sought to be suppressed was voluntarily given by the defendant. The defendant was, at the time, a college student. He was asked by Officer Leota whether he wished to make a statement, and he agreed. However, prior to his making a statement, Officer Leota gave the defendant the Miranda warnings and he supplied a written statement notwithstanding. Unless accompanying an officer to the station is per se a custodial situation, we saw nothing in the evidence suggesting overbearance on the part of the police.

The exclusionary rule came about as a prophylactic measure against police excessiveness. See Mapp v. Ohio, 367 U.S. 643, 656 (1961).(1) The rule has not, however, evolved into some sort of predisposition against anything involving police action and we refuse to draw inferences where there are none to be drawn. The defendant's argument that the police could have done better---they could have undertaken a rule book line-up ---is hardly a failing of constitutional proportions. On the other hand, arresting Officer Leota impressed us very much as someone who was earnestly attempting to do a methodical [17ASR2d149] job. We conclude on the facts that the defendant had every opportunity to freely make up his own mind.

The next question is whether the defendant was wrongfully arrested without a warrant. The evidence revealed that after he was identified and photographed and after making his statement, the defendant was advised by Officer Leota that he was under arrest. We need not examine the validity of this arrest for purposes of this suppression motion since (assuming arguendo that the arrest was invalid) there is no causal relationship between the subsequent arrest (the poisoned tree) and the "prior" identification, photographs, and statement.

III. Dismissal for Vagueness

The information filed in this matter charges the defendant with Assault III, a class A misdemeanor; False Imprisonment, a class A misdemeanor; Rape, a class B felony; Sodomy, a class B felony; and Sexual Abuse I, a class D felony. The defendant sought more factual information on the charges and filed a bill of particulars on October 10, 1990. The Court granted the request on the condition that the government could oppose any of the requests made if notice to that effect was filed within 10 days. On October 19, 1990, the government responded by a bill which essentially told the defendant that he had as much information as the government had on the case. Alternatively, the government took the position that the information sought was readily accessible to the defendant vide, the evidence given at the preliminary examination, the police report supplied, the supporting affidavit for the warrant of arrest, together with anything else discoverable on the part of the government. The defendant then secured a transcript of the evidence given in the preliminary examination and subsequently filed a motion to dismiss Counts I (Assault III), II (False Imprisonment), IV (Sodomy), and V (Sexual Abuse I). He contends a violation of his rights, under Revised Const. Am. Samoa art. I, §6, to be apprised of the accusations against him, to enable him to prepare his defense and to ensure against double jeopardy from a second prosecution. The defendant further challenges the information as failing to comport with the requirements of Trial Court Rule of Criminal Procedure 7(c)---that an information must be a plain, concise and definite written statement of the essential facts constituting the offense charged---because it merely recites the statutory language of each alleged offense.

That a criminal charge is couched in the language of the statute, is not, of itself, grounds for the dismissal of an information. It is settled [17ASR2d150] law that an information using only statutory language is quite permissible as long as the statute sets forth "fully, directly and expressly, without any uncertainty or ambiguity, ...all the elements necessary to constitute the offence intended to be punished." Hamling v. United States, 418U.S. 87, 117-18 (1974). Furthermore, Rule 7(c) "does not mean that the indictment must set forth facts and evidentiary details necessary to establish each of the elements of the charged offense." United States v. Williams, 679 F.2d 504, 508 (1982), cert. denied 459 U.S. 1111. There is a distinction between "a defendant's constitutional right to know what offense he is charged with and his desire to know the evidentiary details of the prosecution's case." Id. at 509. See also United States v. Crow, 824 F.2d 761 (1987).(2)

After reviewing the information in this matter, we conclude sufficiency. The information does inform the defendant of the nature of the charges against him to enable him to prepare his defense and, indeed, to invoke the double jeopardy clause. Necessarily, we are not impressed with the defense's double jeopardy argument with regard to the two counts alleging sexual offenses. It is argued that the preliminary examination record alludes to a number of ways in which the defendant could conceivably be found guilty of sodomy, since an element of this offense, namely, "deviate sexual intercourse," is defined by statute as "any sexual act involving the genitals of one person and the mouth, tongue, hand, or anus of another person." See A.S.C.A. § 46.3601(a). Defendant seems to think that unless the government is pinned down to exactly the conduct charged, for example, genitals/mouth, or genitals/tongue, or genitals/hand, or genitals/anus, his client could be subject to further prosecution. This thinking is unfounded. It is also settled law that entire record of the proceedings, and not just the information alone, may be referred to if there is a claim of double jeopardy with a subsequent prosecution. Woodring v. United States, 376 F.2d 619 (10th Cir. 1967), cert. denied 389 U.S. 885. Clearly, what the defense seeks here is the evidentiary details of the prosecution's case.

For the foregoing reasons, the motions are denied. [17ASR2d151]

It is so Ordered.

********

1. "Only last year the Court itself recognized that the purpose of the exclusionary rule' is to deter ---to compel respect for the constitutional guaranty in the only effective available way---by removing the incentive to disregard it. Elkins v. United States, 364 U.S. 206, 217."

2. The information here tracked the language of a regulation which made penal "[a]ny conduct. ...which impedes or disrupts the performance of official duties by Government employees." The Court here found that the essential element of the charge was conduct producing a prohibited result and that the defendant was charged with that conduct. While the charge lacked particulars, the defendant was found to be placed on notice of the conduct made penal; the details of the conduct would have added nothing save unnecessary evidentiary matter going to the proof of that conduct.

In re a Minor Child (Juv. No. 43-90),


In the Matter of a MINOR CHILD

High Court of American Samoa
Trial Division

JUV No. 43-90

November 15, 1990

__________

A legal adoption was deemed not in the child's best interest when her parents were thirty- years-old and the prospective adopting parent is her 64-year-old grandfather, who is a widower and will be almost eighty years old by the time the child reaches majority.

Before REES, Associate Justice, TAUANU'U, Chief Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Petitioner, Robert A. Porter

The child lives with her natural parents as well as the prospective adopting parent (her 64-year-old grandfather). The grandfather, who proposes to adopt the child, is a widower who will be almost eighty years of age by the time the child reaches the age of majority. It would not be in the best interest of the child to terminate the legal obligations of her thirty-year-old parents.

The petition for relinquishment is denied.

********

In re a Minor Child (Juv. No. 30-90),


In the Matter of A MINOR CHILD

High Court of American Samoa
Trial Division

JR No. 30-90

November 14, 1990

__________

A legal adoption was deemed not in the child's best interest, even though the prospective adopting parents love and could provide more than adequate financial support for the child, and the child appears to have been informally adopted.

Before REES, Associate Justice, and TAUANU'U, Chief Associate Judge.

Counsel: For Petitioner, Isa-Lei F. Iuli

The child who is the subject of this case appears to have a strong relationship with her natural parents and with her natural brothers and sisters as well as with the prospective adopting parents. The prospective adopting father is the sponsor for immigration purposes of the natural parents, who live on property belonging to the prospective adopting parents.

It seems clear that the prospective adopting parents love the child and could provide more than adequate financial support for her. The child appears already to have been informally adopted according to the customs of the respective homelands (TuvaluandSamoa) of the natural and adopting parents. We conclude, however, that a legal termination of parental rights---in which the natural parents would have no right to reclaim the child, not even if they should leave Samoa, and not even if the child should wish to leave with them---would not be in the best interest of the child.

The petition for relinquishment of the legal rights and obligations of the natural parents is denied. The child may, however, continue to live with her "adopted" family so long as this is her wish and the wish of her natural parents.

It is so Ordered.

********

In re a Minor Child (Juv. No. 39-89),


In re A MINOR CHILD

High Court of American Samoa
Trial Division

JUV No.39-89
JUV No.60-89

November 2, 1990

__________

Petitions by natural parents to relinquish their parental rights and petition by grandmother with whom their minor child resided to terminate their parental rights were denied as not in the minor's best interests, where mother was now married and capable of caring for child, father was employed and reportedly also married, and grandmother was an elderly widow whose income was insufficient to support herself and child without assistance. [17ASR2d32]

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Petitioner, Roger Hazell and Togiola T.A. Tulafono

The natural parents of a six year old minor have separately petitioned to voluntarily relinquish their respective parental rights to their child in order that she be made available for adoption by the child's paternal grandmother. The grandmother herself also filed a petition to terminate the rights of the parents to the child, alleging abandonment and neglect.

Facts

The child was born out of wedlock, although the natural parents were living together with the father's family prior to the birth of the child. Sometime after the child was born, the natural parents parted company. The father departed the territory and has been absent to this date. The mother subsequently went back to her own family while leaving the minor to the care of the maternal grandmother. The mother is now married with another young child. At the hearing, the natural mother explained her agreement to the adoption because she feels love for the grandmother who has been solely responsible for rearing the child. In response to questions by the Court, the mother, however , admits that she is able to take care of the child without any difficulty. She was also questioned whether there would be any complications with her raising the child, given her present status, and she replied that there would be none.

Of the natural father's present circumstances, we did not learn very much except that he has been with the United States Armed Forces and that he is reportedly now married and also raising a family. The natural father did sign his petition as well as a document styled "consent and waiver of appearance."

From the home study supplied by the Child Protective Services, Department of Human Resources, the Court is advised of the following: Grandmother is 67 years of age and a widow. She receives a very modest monthly income of $160.00 in the way of social security benefits and a stipend from the Territorial Administration on Aging (T.A.O.A.). She shares a home with another one of her sons, together with his wife and children. To a large extent, the grandmother and the minor are [17ASR2d33] dependent on this son's assistance. The case worker doing the home study also reports that the natural mother "does not anticipate any mistreatment as long as the child resides with grandmother."

Conclusions

For reasons given, each of the petitions are denied. We harbor no doubts about grandmother's present fitness and suitability to care and provide for the child. Nor do we have any doubts that the child's best interest and welfare are being served while she remains under the care of her grandmother. Indeed, a guardianship/custody order, under the Court's continuing jurisdiction, in favor of the grandmother would most certainly be warranted under the facts presented if such relief was being sought. Such a conclusion, however, only highlights the reality that the child's situation with her grandmother can only be a provisional arrangement. Here lies the problem with each of the petitions: none realistically addresses the child's future. Yet the termination of parental rights also has the effect of terminating a child's right to look to her parents for support, as well as the right to inherit. In the circumstances, it would be in the child's best interests and welfare that we leave her the option of looking to her parents in the future. The petitions are hereby denied.

It is so Ordered.

********

Governor of American Samoa; Solomona v.


MEKI SOLOMONA, Appellant

v.

GOVERNOR OF AMERICAN SAMOA, AMERICAN SAMOA GOVERNMENT,

DEVELOPMENT PLANNING OFFICE, and PRODUCT NOTIFICATION

AND REVIEW SYSTEM, Appellees

High Court of American Samoa
Appellate Division

AP No. 22-89

December 14, 1990

__________

American Samoa's "coastal zone management area" is defined as including the entire island of Tutuila, along with all the other islands and all coastal waters and submerged lands for a distance of three nautical miles seaward. A.S.A.C. § 26.0207.

A "taking" of property by ASG requires it to provide just compensation. U.S. Const. Amend. V; Rev. Const. Am. Samoa art. I, § 2.

A land use regulation may effect a constitutional taking ifit fails to "substantially advance legitimate state interests" or "denies an owner economically viable use ofhis land." U.S. Const. Amend. V; Rev. Const. Am. Samoa art. I, § 2.

Coastal zone regulations might effect a taking, and thus require compensation to the landowner, if they effectively prohibit any "economically viable" use of private property. U.S. Const. Amend. V; Rev. Const. Am. Samoa art. I, § 2. [17ASR2d187]

No "taking" occurs when government merely restrains property uses which are tantamount to public nuisances. U.S. Const. Amend. V; Rev. Const. Am. Samoa art. I, § 2.

American Samoa's submerged and tidal lands, which are those permanently or periodically covered by tidal waters, belong to the territorial government.

A person cannot convert public land into his own private property by unilaterally and artificially changing its character, nor can he acquire title by offering for registration property legally incapable of private ownership.

A person who does not own the land for which a land-use permit was denied has no standing to raise the question as to whether special enabling legislation was necessary to allow the Governor to promulgate the coastal zone management regulations affecting the rights of private property owners.

The executive branch has the statutory authority to preserve and administer government lands.

Before REES, Associate Justice, FONG*, Acting Associate Justice, KLEINFELD,** Acting Associate Justice, TAUANU'U, Chief Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Appellant, Roy J.D. Hall, Jr.

  For Appellee, Virginia L. Gibbons, Assistant Attorney General

This appeal is from the denial by the Project Notification and Review System (PNRS) of appellee American Samoa Government (ASG) of a permit to build a house. The permit was denied on the ground that the house was to be constructed on an illegal landfill within a tidal wetland.

In or around 1985 appellant began filling in an area of the mangrove swamp (pala) at the mouth of the Leafu Stream in Leone.  In 1987 he attempted to apply for a Consolidated Land Use Permit to conduct "overpass and fill work." Only a few lines of the multi-page application were filled in, and it was never acted upon by any agency of ASG. It appears that substantial work had already been done on the landfill and the "overpass" (a bridge connecting the filled area with the mainland) by the time of this application. [17ASR2d188]

In or around 1988 appellant and his wife offered for registration as their individually owned land a parcel described as "a portion of land 'Siulagi.'" This parcel comprised about 716 acres and appears to have consisted of the landfill within the pala. Although the appellant testified at the hearing below that several neighboring families had originally objected to his landfill activities, any formal objections were evidently withdrawn and the land was registered onSeptember 13, 1988.

In February of 1989 the appellant applied for a permit to build a two-story house and a septic tank on the filled area.

On April 13, 1989, appellant was notified by the ASG Economic Development Planning Office (DPO) that his application had been denied. The notice of denial stated that the application had been "reviewed and evaluated" by "the Review Agencies of the Project Notification and Review System" (PNRS) and that it was being denied because of a government policy that "[u]nique areas, including wetlands [and] mangrove swamps. ..shall be protected against significant disruption of their physical, chemical, and biological characteristics and values. Only uses dependent on such areas shall be permitted." (Emphasis in original.)

The PNRS is a sort of interdisciplinary consortium of all the ASG agencies which have anything to do with land use. It was created to implement the "coastal management program" established by Executive Orders 03-80 and 07-88, codified as A.S.A.C. §§ 26.0201 et seq. This program, in turn, was issued in response to the enactment of the federal Coastal Zone Management Act of 1972, 16 U.S.C. §§ 1451 et seq. The federal act provides, inter alia, for federal assistance to states and territories "in developing land and water use programs for the coastal zone, including unified policies, criteria, standards, methods, and processes for dealing with land and water use decisions of more than local significance."

The coastal zone regulations define the "coastal zone management area" as including the entire islandof Tutuila, along with all the other islands comprising American Samoa and all coastal waters and submerged lands for a distance of three nautical miles seaward. A.S.A.C. § 26.0207. Consequently, anyone who wishes to undertake any sort of construction anywhere in Tutuila must apply to the DPO for approval or disapproval. The regulations require DPO to grant land use permits only after the applicant has applied for and received the "necessary permits" from "permit-letting agencies" within ASG. [17ASR2d189]

A.S.A.C. § 26.0211. (Depending on the type of construction contemplated, these permit-letting agencies can include the Office of the Governor, the Office of the Attorney General, the Economic Development Planning Office, the Territorial Planning Commission the Zoning Board, the Department of Public Works, the Environmental Quality Commission, the Environmental Protection Agency, the Department of Marine and Wildlife, the Department of Parks and Recreation, and/or the Department of Health.) The regulations further provide that "a. ..permit and project notification and review system shall be instituted." A.S.A.C. § 26.0209.

The PNRS is the system established pursuant to these two sections. Instead of applying to several agencies for approval of various aspects of a proposed project, the applicant applies only to DPO. All of the permit-letting agencies then study the application and send representatives to the PNRS and collectively decide either to approve or to disapprove it. "The goal is to provide 'one-stop shopping' to those needing governmental permission to construct almost anything anywhere in the territory. " Decision of the Administrative Appeals Panel in the case of Meki Solomona, September 27, 1989 [hereinafter" Appeals Panel Decision"], at 1.

In 1990, during the pendency of this appeal and after the events and proceedings that gave rise to it, the Fono enacted and the Governor signed the American Samoa Coastal Management Act of 1990, PL No. 21-35, which substantially restated many of the provisions of the regulations discussed above and which also provided that those regulations should remain in force until certain others are promulgated. See A.S.C.A. § 24.0506(b).

After the PNRS denied appellant's application to build the house and septic tank, he appealed to an Administrative Appeals Panel. The appeals panel held a hearing at which both the appellant and a representative of the appellee(s) testified. The panel later made a visit to the construction site and then took further evidence from appellant.

On September 27, 1989, the appeals panel affirmed the denial of the land use permit. The panel found that the proposed building site was in "the heart of the pala lagoon mangrove swamp area. " Appeals Panel Decision at 9. The panel found that "[t)idal levels and action are clearly evident" and that, were it not for the retaining wall built by the appellant to enclose the filled area, "the area would most likely be inundated by high stream flows and/or high tides." Id. at 8-9. See also [17ASR2d190] id. Appendix #2, Document 1, p. 13 ("Site Plan for Fill Area," apparently submitted by the appellant along with his permit application, showing the entire fill area to be within the lagoon.) The panel correctly observed that tidal lands inAmerican Samoa belong to the government.Id. at 15-16.

The panel further concluded that various agencies of the government would have authority (presumably even if the land did not belong to the government) to deny construction permits, water quality permits, and a health permit for the septic tank, and that "the technical and regulatory findings of the PNRS and other agencies in this case are correct."Id.at 15-16.

Appellant now petitions for judicial review of these findings in accordance with the Administrative Procedures Act. See A.S.C.A. § 4.1040-41. He raises two important and complex questions.

First, the appellant contends that the establishment of the PNRS by executive order was unconstitutional in the absence of enabling legislation. He contends that an executive regulation must be designed to execute or enforce laws, not to enact or change them. He further contends that the establishment of the coastal zone management program had the effect of altering the legal rights, duties, and relations of persons, and must therefore be characterized as inherently legislative rather than executive. Appellee ASG responds that the Revised Constitution of American Samoa, Article IV § 6, permits the Governor to issue executive regulations "not in conflict with the. ..laws of American Samoa, " whether or not they are designed to execute particular laws. The government further cites a number of territorial statutes pertaining to zoning, health, water quality, environmental protection and so forth, which, it is maintained, would authorize ASG agencies to deny land use permits for any of the reasons the PNRS might do so. Finally, ASG argues that the Fono has "ratified" the coastal zone management rules by the 1990 enactment of the Coastal Zone Management Act, and that such ratification applies retrospectively.

Appellant also maintains that the denial of a land use permit in this case is a "taking" of his property for which ASG must provide just compensation. See U.S. Const. Amend. V; Rev. Const. Am. Samoa art. I, § 2. A land use regulation may effect a constitutional taking if it either fails to "substantially advance legitimate state interests" or "denies an owner economically viable use of his land." Agins v. Tiburon, 447 U.S. 255, 260 (1980); see Nollan v. California Coastal Commission, 483 [17ASR2d191] U.S. 825, 834 (1987); United States v. Riverside Bayview Homes, 474 U.S. 121, 127 (1985). Although the coastal zone management regulations are fairly brimming with legitimate state interests, and although the preservation and/or restoration of the Leone Pala Lagoon area as one of the few remaining natural habitats for the ducks, turtles, fishes, and other creatures mentioned in the decisions below might well justify strict regulation and even prohibition of construction in this area, such regulation might nevertheless effect a taking (and thus require compensation to the landowner) if it effectively prohibited any "economically viable" use of private property. See Nollan, supra, 483 U.S. at 834; Riverside Bayview Homes, supra, 474 U.S. at 127; First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 316-17 (1987).(1) The statement made by the PNRS in denying appellant's permit strongly suggests, although nothing in the record below absolutely states, that no economically productive private use of this tract will be permitted. Remand for an answer to this question might well be appropriate were it not for our resolution of a threshold question.

No taking of private property has occurred in this case because the land was not private property to begin with. It is well settled that submerged and tidal lands in American Samoa---those which are permanently or periodically covered by tidal waters ---belong to the territorial government. Prior to 1974 such land belonged to the United States. Lago v. Mageo, 4 A.S.R. 287 (1962), aff'd sub nom.  Mageo v. Government, 4 A.S.R. 874 (1963); Foster v. Olotoa, 3 A.S.R. 77 (1953). In 1974 this title was conveyed to the American Samoa Government. Submerged and Tidal Lands Act of 1974, P.L. No. 93- 435, codified at 48 U.S.C. § 1705(a).

The conveyance from the United Statesto the territorial government specifically included "artificially made, filled in, or [17ASR2d192] reclaimed lands which were formerly permanently or periodically covered by tidal waters. ..." Id. Even in the absence of this explicit statutory language, the appellant could not have converted public land into his own private property by unilaterally and artificially changing its character. Nor could he have acquired title by offering the filled land for registration, since the attempted registration was of a class of property legally insusceptible of private ownership.  Foster, supra, 3 A.S.R. at 79-80, and authorities cited therein; cf. Faleafine v. Suapilimai, 7 A.S.R.2d 108, 113 (1988) ("[T]he registration violated the statutes and was null and void.").

Because he does not own the land for which this permit was denied, appellant has no standing to raise the question whether special enabling legislation was necessary to allow the Governor to promulgate the coastal zone management regulations, insofar as they affect the rights of private property owners. The executive branch does have statutory authority to preserve and administer government lands. See A.S.C.A. §§ 18.0204(a) (parks and recreation department shall inventory all properties belonging to the government and with the Governor's approval determine which are included in the park system), 18.0205 (certain submerged and tidal lands are included within the park system and are subject to the administration of the director of parks and recreation), 18.0208(a) (criminal penalties for injury or damage to property within the park system). The Parks and Recreation Department is one of the review agencies comprising the PNRS, and the record below reflects that the reviewing agencies voted unanimously to deny the application.

Accordingly, the decision of the Administrative Appeals Panel is AFFIRMED.

********

1. The Government seems to argue that the requirement of compensation for regulatory takings has been effectively read out of the Constitution by Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470 (1987). The holding of that case, to the effect that no taking occurs "when the State merely restrains uses of property that are tantamount to public nuisances," id. at 491, must be read together with other recent cases suggesting the survival of a robust regulatory takings doctrine. See, e.g., Nollan, supra; FirstEnglishEvangelicalLutheranChurch, supra; Kaiser Aetna v. United States. 444 U.S. 164 (1979). Although the "tantamount to nuisance" exception might well cover the prohibition of a landfill (at least a landfill with a septic tank) even in a privately owned stream, we do not take it to mean that the government will never have to pay compensation for any regulatory taking now that all ofAmerican Samoa has been declared a coastal zone.

Asuega; Mauga v.


MAUGA FESAGAIGA, UTAIFEAU ASUEGA, FAATASIGA MASUNU,
VA'A HO-CHING, LEMAFA COFFIN, FATAFATAOMISAUNOA,
PURINISESE McMOORE, TAUA'A VAOULI,

and FOUA FUIMAONO, Plaintiffs

v.

ASUEGA FA'AMAMATA LAUVAI, Defendant

High Court of American Samoa
Land and Titles Division

LT No. 56-90

October 12, 1990

__________

Plaintiff failed to establish sufficient grounds for a preliminary injunction enjoining defendant/matai from building on a portion of family communal land, where the court had previously found that the matai's sleeping quarters were traditionally located at that site, the matai was building the home as sa'o for the benefit of the extended family rather than for herself or her immediate family, and the plaintiffs failed to show they would suffer great or irreparable harm if an injunction did not issue. [17ASR2d5]

Before KRUSE, Chief Justice, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiffs, Gata E. Gurr

  For Defendant, Charles v. Ala'ilima

On Application for Preliminary Injunction:

The applicants for a preliminary injunction are members of the Asuega family who also hold themselves out as representing the Asuega family. They seek an order to enjoin the senior matai, Asuega F. Lauvai, from continuing with the construction of a FEMA(1) home on a certain piece of communal land which this Court had once before determined in Pine v. Ieremia, LT No. 62-76 (1977) as the traditional site for the matai's sleeping quarters (fale tofa). In so holding, the Court there rejected the claim that site could devolve to the use of the immediate kin of the previous matai. Rather, the site was reserved for the use of the family's incumbent matai and not for the personal use of anyone particular member or branch of the family.

On the other hand, the evidence here suggested nothing more than outright disagreement with the matai's actions simply because other members of the family had also made known their contrary desires to utilize the site individually. Plaintiffs are, therefore, advocating the claim that only the family(2) as a whole can determine what may be done with the site.

Conclusion

The applicants have sorely failed to establish II sufficient grounds" for the issuance of a preliminary injunction in accordance with the requirements of A.S.C.A. § 43.1301(j).(3) In terms of merit, there [17ASR2d6] was simply nothing in the evidence suggesting cause to interfere with the matai's decision-making. We accept her testimony that she had undertaken construction as the Sa'o of the family on behalf of the family, and not for herself as an individual nor on behalf of her immediate side of the family. Indeed, her actions appear to be perfectly consistent with the Court's conclusions regarding the use of the site in Pine v. Ieremia, supra. With regard to the issue of great or irreparable harm to applicants, we find none.

The application for a preliminary injunction is denied.

It is so Ordered.

**********

1. The federal agency managing a federal disaster relief program for victims of Hurricane Ofa, which struck the territory in February 1990.

2. However that term might be defined ---for instance, would the term "family" be limited to that inner circle of the family which Asuega alluded to on the stand as actively rendering service or tautua? See Fairholt v. Aulava, 1 A.S.R.2d 73 (1983).

3. This enactment requires the Court to consider: (1) whether there is substantial likelihood that the applicant will prevail at trial on the merits; and, (2) whether great or irreparable harm will result to the applicant before a full and final trial can be fairly held.

Asifoa; Lualemana v.


LUALEMANA E. FAOA, Plaintiff

v.

SOSENE ASIFOA and LEFOTU TUILESU, Defendants

LUALEMANA E. FAOA for LUALEMANA FAMILY and
VILLAGE OF A ' ASU, and TUITELE K.A. LE'OSO for
VILLAGE OF LEONE, Plaintiffs/Objectors

v.

A'OLOAU VILLAGE COUNCIL, Defendant/Claimant

A.U. FUIMAONO and the VILLAGE OF A'OLOAU, Plaintiffs

v.

TOLUAO FETALAIGA, Defendant

TUANAITAU TUIA, AVA VILI, TOLUAO FETALAIGA for
themselves and the
VILLAGE OF PAVA'lA'I, Intervenors

LEPUAPUA STANLEY MASSEY UTU, for himself and on behalf
of the UTU FAMILY, Intervenor

TUILEFANO VAELAA, TUIAGAMOA, TUIOLEMOTU, and
TUITASI for "AlGA AITULAGI," Intervenors

High Court of American Samoa
Land and Titles Division

[17ASR2d152]

LT No. 29-86
LT No. 41-86
LT No. 12-87

December 10, 1990

__________

The filing of a motion for new trial within ten days of the announcement of judgment is a mandatory prerequisite to appeal. A.S.C.A. § 43.0802(a).

A motion for a new trial may be styled a motion for "reconsideration", as long as it is filed within the ten-day deadline and clearly apprises the trial court of the particular errors claimed in regards to its decision.

Although an untimely motion for reconsideration or new trial is ordinarily denied for lack of jurisdiction, the court construed it as a motion for relief from judgment because the movant claimed that he had not been represented by counsel at trial and had therefore not been notified of the judgment against him. T.C.R.C.P. Rule 60(b).

A motion for reconsideration under Rule 60(b) cannot to be used as a substitute for appeal by one who has missed the deadline for appeal. T.C.R.C.P. 60(b).

Although courts have granted relief from judgment when a party did not learn of the judgment prior to the appeal deadline through some fault of the clerk or another court official, it is an abuse of discretion for the court to grant relief when the party missed the appeal deadline through his own or his lawyers fault.

A Rule 60(b) motion cannot be used to save a litigant from strategic choices that later turn out to be unwise.

Before REES, Associate Justice, TAUANU'U, Chief Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Lualemana and Tuitele, Afoa L.S. Lutu

  For Asifoa and Tuilesu, Charles V. Ala'ilima

  For Fuimaono and the village of A'oloau, Gata E. Gurr

  For Toluao, Fai'ivae A. Galea'i

  For Tuana'itau, Tau'ese P.F. Sunia

  For Utu, Togiola T.A. Tulafono

  For Aiga Aitulagi, Tuiasosopo Mariota II

On Motion for Reconsideration or Relief From Judgment:

This motion for reconsideration was filed thirty-five days after the entry of judgment, which is twenty-five days later than the statutory deadline. A.S.C.A. § 43.0802(a) provides that the filing of a motion for [17ASR2d153] new trial within ten days of the announcement of judgment is a mandatory prerequisite to appeal. Such a motion may be styled a motion for "reconsideration" rather than for new trial so long as it is filed within the ten-day deadline and clearly apprises the trial court of the particular errors assigned to its decision.

An untimely motion for reconsideration or new trial should ordinarily be denied for want of jurisdiction. Because the present movant, Toluao Fetalaiga, maintained that he had not been represented by counsel at trial and had therefore not been notified of the judgment against him, we construed it as a motion for relief from judgment under T.C.R.C.P. Rule 60(b) and set it for hearing as such.

At the hearing we heard Toluao's testimony. The record also contains documentary evidence concerning Toluao's representation by counsel. The facts are as follows:

1) Toluao is a matai of the village of Pava'ia'i. He originally entered these consolidated cases in 1986, as an intervenor in LT No. 29- 86. This was an action brought by Lualemana, the principal chief of the neighboring village of A'asu, against certain residents of yet another neighboring village, called A'oloau, whom Lualemana said were occupying his land.

2) Toluao's intervention in LT No. 29-86 was not motivated by any dispute with either Lualemana or the named defendants in the case. Rather, it was part of an effort to litigate an altogether different dispute with A.U. Fuimaono, principal matai of A'oloau. Fuimaono had previously intervened in LT No. 29-86 as a defendant "for himself and on behalf of the village of A'oloau," to assert the proposition that there was a well-settled boundary between the two villages and that Lualemana, not the A'oloau defendants, was on the wrong side of the line.

3) Fuimaono and the various matai composing the Village Council of A'oloau had also offered a survey for registration in the office of the Territorial Registrar, purporting to encompass the boundaries of the village and to be "communal land of the village of A'oloau." Several people had objected to this survey within the statutory sixty-day time limit for such objections, and the dispute had been referred to the High Court where it was designated LT No.41-86. Neither Toluao nor anyone from the village of Pava'ia'i had objected. Pava'ia'i did, however, regard some of the land within the A'oloau survey (an area [17ASR2d154] called "Lago") as really being in Pava'ia'i, and Toluao had begun to plant crops on part of this land. (The other parties maintained that Toluao had only recently moved into the area, and at trial we found this to be the case.) It was in order to litigate this disagreement (the registration by A'oloau including "Lago") that Toluao and two other Pava'ia'i chiefs sought to intervene in LT No. 29-86 (the injunctive action having nothing to do with "Lago"). They appeared "for themselves and the village of Pava'ia'i."

4) Toluao and his two co-applicants for intervention were represented by counsel Albert Mailo. The motion to intervene was granted without objection by any party.

5) In 1987 Fuimaono brought a separate injunctive action against Toluao. Fuimaono again appeared "for himself and on behalf of the village and people of A'oloau." The complaint alleged that Toluao had recently begun occupying land belonging to various A'oloau people within the area called "Lago" and destroying their crops. This dispute was precisely the one that had caused Toluao and the other two Pava'ia'i chiefs to intervene in LT No. 29-86. Toluao was again represented by counsel Mailo, who filed an answer and appeared at various pre-trial hearings. This new case was designated LT No. 12-87.

6) In January 1988 the three cases were consolidated and set for trial.

7) Various other parties were subsequently allowed to intervene. The only one that matters for the purpose of this motion is the Utu family of A'oloau. They alleged that they owned land in the "Lago" area; that these lands were within the survey offered by the Village of A'oloau but in fact belonged to the Utu family rather than to the entire village; and that Toluao had recently begun going on their land and destroying their crops.

8) The trial was continued several times. In pleadings having to do with these continuations and other pre-trial matters, counsel Mailo sometimes referred to himself as "counsel for. ..Tuana'itau Tuia, Ava, [and] Toluao" (the three named Pava'ia'i chiefs) and sometimes simply as "counsel for Pava'ia'i. " This apparently reflected an agreement among Toluao, his two co-intervenors, and the rest of the Pava'ia'i Village Council that they would litigate the case ''as a village." It is clear from Toluao's testimony at the recent hearing that he agreed to this arrangement, although he appears to have been the only Pava'ia'i party [17ASR2d155] who actually occupied any land in the disputed area. According to the arrangement, the party through whom "the village" communicated with its counsel was Tuana'itau Tuia.

9) In 1989 counsel Mailo moved to withdraw as counsel for the Pava'ia'i parties and for some other parties he had been representing. He appended a consent form signed by several clients, including Toluao, and certified that he had "contacted his clients about it and they will retain new counsel. " The Court granted the motion, contingent on the parties' actually retaining new counsel.

10) Later in 1989 counsel Tau'ese P. Sunia entered an appearance on behalf of "Tuia and the Village of Pava'ia'i." Toluao testified that this was also pursuant to the arrangement whereby the various Pava'ia'i parties would litigate ''as a village" and that Tuia would be the one actually handling the litigation.

11) The case was finally tried in May 1989. The Pava'ia'i parties put on two witnesses, Tuana'itau Tuia and an elderly chief of Pava'ia'i. These witnesses testified to the effect that "Lago" had long been part of Pava'ia'i and that parts of it had long been occupied by Toluao and other Pava'ia'i people. Witnesses for other parties testified that Toluao had only recently begun moving into the area.

12) At the recent hearing Toluao testified that he had been present throughout the trial of the consolidated cases. He said he had wanted to testify at the trial and had talked to Tuana'itau Tuia and counsel Tau'ese about it, but that they had insisted it would be better just to present the testimony of Tuana'itau (the "sa'o of the village" and also the Speaker of the territorial House of Representatives) and the elderly chief Pagofie. Toluao acquiesced in this decision.

13) During the trial the Pava'ia'i parties made a stipulation with the Utu family. It was signed by Toluao, by Tuana'itau, and by counsel Tau'ese as "Attorney for Tuana'itau F. Tuia, Toluao Fetalaiga and all the Pava'ia'i Village Claimants." At the hearing on the present motion Toluao stated that he had not really agreed with the stipulation and had had no idea how much land it conceded to the Utu family, but had signed at the request of Tuana'itau.

14) The Court allowed counsel three weeks for post-trial submissions and then took the case under advisement. A decision was rendered on August 6, 1990. The Court held that the area called "Lago" [17ASR2d156] had been occupied by various families of A'oloau for about forty years and that Pava'ia'i had only recently begun to assert or reassert its claim. Specifically, the Court held that Toluao had only begun to occupy this area in the mid-1980s and had thereby displaced the plantations of various A'oloau families. Toluao was enjoined from further activities in the area.

15) The Clerk of Court immediately gave copies of the decision to all counsel, including counsel Tau'ese. Counsel Tau'ese then consulted with Tuana'itau Tuia. It appears that Tuana'itau did not notify Toluao, who was then on an off-island trip. It is not clear whether Tuana'itau consulted with other members of the Village Council. In any event, after his consultation with Tuana'itau about the decision, counsel Tau'ese did not file a motion to reconsider on behalf of the Pava'ia'i parties.

16) We do not know exactly when Toluao did find out about the decision. About a month after the decision was rendered, a person who had been occupying land in the area by permission of Toluao wrote a long letter to one of the attorneys in the case complaining about the decision and asking if there was anything he could do about it. A few days later the present "Motion to Reconsider" was filed by yet another counsel, who said he had not talked to Toluao about it but had talked to members of his family.

It appears from this evidence that Toluao is asking the Court to relieve him not of the consequences of mistake, inadvertence, or excusable neglect, but of a deliberate strategic decision he made early in the course of this litigation. This was the decision to litigate "as a village" and to let Tuana'itau consult with counsel and make the decisions.

The perceived advantages of this arrangement were presumably that Toluao would not have to retain his own counsel; that since A'oloau was litigating "as a village" on behalf of Toluao's rival claimants in the area, it might be strategically wise to make it clear that the whole village council of Pava'ia'i was behind Toluao's claim; and that, under the circumstances, it might be wise to bolster Toluao's claim based on occupation (which everyone else in the neighborhood insisted had begun only recently) by subsuming it within a broader historical claim by Pava'ia'i. [17ASR2d157]

Toluao may also have believed that Tuana'itau was a man experienced in these matters who could handle the litigation more effectively than Toluao himself would be able to do. Toluao had made at least one similar decision in another recent land dispute, representing to the Court that the Toluao family and the Tuana'itau family were "part of the same family" and that Tuana'itau was the sa'o of the whole family; the purpose of this representation was to enable Tuana'itau to represent the interests of both families "pro se." The Court was told at that time that Toluao could not find an affordable lawyer (counsel Mailo having withdrawn in that case as in this one) and did not wish to represent himself. See Leomiti v. Toluao, LT No.35-82.

Nor is it at all clear that Tuana'itau committed "neglect" by not consulting with Toluao about his decision not to move for reconsideration. Although prudence would ordinarily dictate such consultation, Toluao does not allege that it was any part of the Pava'ia'i parties' prior arrangement. Indeed, it appears that Tuana'itau had consulted with Toluao during the course of the litigation only when he needed Toluao's signature on something; yet Toluao had not sought to terminate the arrangement---as he was free to do at any time during the litigation by retaining independent counselor by notifying the Court that he wished to proceed pro se---and had even gone along with Tuana'itau's decisions that he, Toluao, should not testify and that he should sign the Utu stipulation. Toluao evidently knew that counsel Tau'ese would consult only with Tuana'itau when the Court issued its decision. He does not allege in support of the present motion that he told Tuana'itau he wished to be consulted about whether to move for reconsideration, or even that he left Tuana'itau or counsel Tau'ese any information about how to get in touch with him while he was off-island.

A motion for reconsideration under Rule 60(b) cannot to be used as a substitute for appeal by one who has missed the deadline for appeal. Although courts have made exceptions to this rule when the party did not learn of the judgment prior to the appeal deadline through some fault of the clerk or another court official, it is an abuse of discretion for the court to use relief from judgment to allow an appeal where the party missed the deadline through his own fault or through the fault of his lawyer.  Spika v. Village of Lombard, 763 F.2d 282, 285 (7th Cir. 1985), and authorities cited therein.

Nor can a Rule 60(b) motion "be employed simply to rescue a litigant from strategic choices that later turn out to be improvident." [17ASR2d158] Good Luck Nursing Home, Inc., v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980).

We conclude that Toluao was represented by counsel at all times during the litigation, but voluntarily entered into an arrangement whereby a single counsel would represent all the named Pava'ia'i parties and would deal only with Tuana'itau. Having chosen thus to subsume his claim within that of the village and to leave its fate in the hands of the village's principal spokesman, Toluao now seeks relief from a decision made by this agent. Such relief cannot be granted.

Accordingly, the motion is denied. It is so Ordered.

********

Asifoa v. Lualemana ,


SOSENE ASIFOA and LEFOTU TUILESU, Appellants

v.

LUALEMANA E. FAOA, Appellee

High Court of American Samoa
Appellate Division

AP No. 20-90

November 23, 1990

__________

Execution of a final judgment of the High Court will not be stayed pending appeal unless the appellate, trial, land and titles division, or Chief Justice orders a stay for cause shown upon such terms as it or he may fix. A.S.C.A. § 43.0803.

In determining whether to stay execution of a judgment pending appeal, the court considers: (1) the likelihood of appellant prevailing in the appeal, (2) whether appellant will suffer irreparable harm if a stay is not granted, (3) whether appellee will suffer irreparable harm if a stay is granted, and (4) whether the public interest would be affected by stay.

General principle of stays of injunctive relief and granting of injunctions pending appeal is preservation of the status quo pending appeal.

Where appellants had substantial commercial and subsistence plantings on certain land, the trial court judgment evicting them from such land would be stayed pending appeal, where the issue on appeal was not frivolous, trivial, or presented merely for delay, and executing judgment before appeal would destroy the status quo and harm appellant more than staying judgment pending appeal would harm appellee. [17ASR2d101]

Before FONG*, Acting Associate Justice, KLEINFELD**, Acting Associate Justice, LOGOAI, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Appellants, Charles V. Ala'ilima

  For Appellees, Afoa L.S. Lutu

This case is before us on a motion for stay of judgment pending appeal. The merits of the appeal are not yet before us.

Judgment came down August 6, 1990, in a consolidated case, numbered below as LT No. 29-86, LT No. 41-86, and LT No. 12-87. The consolidated actions concern the ownership of over 400 acres of land on and around MountOlotele, comprising the village of A'oloau Fou and its environs. The judgment in the trial division had the effect of evicting appellants from property which they have occupied for many years. They claim, and appellees do not deny, that they have substantial commercial and subsistence plantings on the land.

The trial court on August 10 amended its judgment to allow appellants thirty days in which to harvest their crops on the Lualemana track, and subsequently granted an additional stay of execution to November 15, so that the appellate division could consider the matter, but it denied a motion for stay pending appeal.

The applicable statute reads as follows:

Pending the hearing and determination of an appeal, execution of the final judgment or order of the High Court shall not be stayed unless the appellate, trial, or land and titles division, or Chief Justice, orders a stay for cause shown and upon such terms as it or he may fix.

A.S.C.A. § 43.0803. [17ASR2d102]

The trial division did not find adequate "cause shown" for a longer stay, because the probability that the judgment would be vacated on appeal was not so high, or the hardship on the appellees so great, as to justify further delay in occupancy by the parties found to be entitled to the land.

The trial court, in accord with established authorities on stays pending appeal, drew an analogy to the four part test for preliminary injunctions: (1) likelihood that the appellant would prevail in the appeal, (2) irreparable harm to the appellant if a stay is not granted, (3) irreparable harm to appellees if a stay is granted, (4) whether the public interest would be affected by a stay. 7 J. Moore & J. Lucas, Moore's Federal Practice § 62.05 (2d ed. 1985). The trial court determined that the appeal was largely on factual rather than legal grounds, so the probability of success on the merits was not great. The trial court found that appellants would suffer greater harm than appellees if they were required to comply with the trial court judgment, and then prevailed on appeal. If no stay issued, but the appellants prevailed, they would have to move off the land which they had occupied for a long time and then would move back on, after the appellate decision. The court also found, however, that the appellants had long been on notice that they should not be occupying the land and identified a public interest concern in avoiding the encouragement of appeals for purposes of delay.

The appeal is likely to focus on the adequacy of notice. This issue is in large part factual, so the trial court reasonably estimated the probability of success in the appeal as "less than fifty-fifty."  The controlling statute provides:

The findings of the trial, probate and land and titles division of the High Court may not be set aside by the appellate division unless clearly erroneous.

A.S.C.A. §§ 43.0801(b). The "clearly erroneous" standard does indeed generally compel the conclusion that an appeal on factual grounds is an uphill battle.

The notice issue in this case, however, does not appear to be frivolous or trivial. We do not think that the issue on appeal is one of such little weight that the appeal can be characterized as being taken merely for purposes of delay. We think that the trial court's comment, that a stay would "encourage the present litigants and others to prosecute appeals to no likely effect than delay," went to the fourth branch of the [17ASR2d103] test, public interest, rather than the first branch, probability of success on the merits. We agree with the trial court's concern, but it is not a conclusive policy consideration where the issue on appeal is legitimate.

The general principal of stays of injunctive relief and granting of injunctions pending appeal is preservation of the status quo pending appeal. 7 J. Moore & J. Lucas, Moore's Federal Practice § 62.05 (2d ed. 1985). For example, the discretion of a United States District Court under Federal Rule of Civil Procedure 62(c) "is strictly limited to the preservation of the status quo pending appeal.” Id. In the context of injunctions pending appeal, another treatise notes that injunctions to continue the status quo pending appeal may be desirable. 11 Wright & Miller, Federal Practice and Procedure § 2904.

Though the question is close, we have concluded that the trial division exceeded the proper boundaries of discretion in denying the stay pending appeal, and we have determined that the trial court's judgment should be stayed pending appeal. The importance of preserving the status quo pending appeal persuades us that a stay is appropriate. Rightly or wrongly, the appellants have occupied the land and engaged in agricultural pursuits upon it for many years. Appellees' stakes in occupancy are not very much affected by whether they obtain it this year or next year, but appellants' interests will be very greatly affected. Appellants' probability of success on the merits, while affected by the "clearly erroneous" standard, nevertheless is not so low as to outweigh the interest in avoiding irreparable harm to the appellants.

At oral argument, we were concerned with the possible need for posting security pending the stay, because appellees will be wrongfully deprived of the value of one year of agriculture on the land, if the judgment is affirmed. We have determined, however, not to require the posting of security. The statute does not require security. The briefs do not focus upon this issue. Security ordinarily has not been required for stays pending appeal in land disputes such as this one in the High Court. The trial division's opinion and order of August 6 noted the absence of sufficient evidence to estimate damages on related questions, and the trial division's October 23 opinion regarding the stay noted that the court had not been presented with evidence sufficient to assess the monetary difference between the costs of moving off the land and back on again if appellants prevail, and the costs of one year's wrongful deprivation if appellees prevail. [17ASR2d104]

Accordingly, it is ordered that the stay of enforcement of the trial division's judgment is extended toNovember 30, 1991, or the rendering of a decision on the appeal, whichever comes first. The trial court has discretion to modify or supplement the terms of this stay, if in its .Judgment modification is needed to preserve the status quo and prevent waste.

********

*Honorable Harold M. Fong, SeniorJudge,United StatesDistrict Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

**Honorable Andrew J. Kleinfeld, District Judge, United States District Court for the District of Alaska, serving by designation of the Secretary of the Interior.

Asifoa v. Lualemana,


SOSENE ASIFOA and LEFOTU TUILESU, Appellants

v.

LUALEMANA E. FAOA, Appellee

High Court of American Samoa

Appellate Division

AP No. 20-90

October 23, 1990

__________

In deciding a motion for a stay of judgment pending a decision on the appeal, the Justice of the High Court who did not sit on the case at the trial court level ordinarily hears the motion.

In the absence of a Justice qualified to sit as a member of the Appellate Division, a motion for a stay of judgment was properly referred to the judge who presided at trial. A.C .R. 27(c). Rule 4. [17ASR2d11]

A court should not automatically or casually grant a stay of judgment pending appeal; the court's discretion to grant a stay should be exercised only if cause is shown. A.S.C.A. §§ 43.0803; T.C.R.C.P. 62(a), (c); A.C.R. 8.

To minimize the costs imposed on the prevailing party by a delay in executing a money judgment, a court can require a supersedeas bond and award post-judgment interest. T.C.R.C.P.62(d).

The decision to grant or deny a stay pending appeal, similar to that on a preliminary injunction, depends partly on the "balance of equities" and partly on the likelihood that the appeal will be successful. T.C.R.C.P.62(a),(c).

An injunction will be stayed in the following situations: there is a strong chance the judgment will be vacated on appeal; compliance with the judgment during the pendency of the appeal would amount to an effective denial of the right to appeal or would otherwise work extraordinary hardship on the appellant; little or no hardship would be imposed on adverse parties by appellant's non-compliance; or some combination of these conditions overcomes the presumption in favor of allowing each party the present enjoyment of his lawful rights.

In assessing the likelihood of success on appeal, a court may stay an injunction when it has enough doubt about the substantive correctness of its decision, such as when new and difficult questions of law are involved.

Before REES, Associate Justice.

Counsel: For Appellants, Charles V. Ala'ilima

  For Appellee, Afoa L.S. Lutu

On Motion for Stay of Execution:

On August 6, 1990, the trial court rendered judgment for plaintiff/appellee Lualemana, providing in pertinent part that defendant/appellants Asifoa (Atualevao) and Lefotu were permanently enjoined from further activities within a tract of land registered in 1961 as the property of Lualemana. See Lualemana v. Atualevao, 16 A.S.R.2d 34 (1990).

On August 10, 1990, upon motion by defendant/appellants, the Court amended its judgment to allow defendant/appellants thirty days in which to harvest any crops belonging to them within the Lualemana tract.

Defendant/appellants subsequently moved for reconsideration of the trial court judgment and for a further stay of execution upon the judgment. On September 4, 1990, the Court denied the motion to [17ASR2d12] reconsider, but did grant an additional thirty-day stay of execution so as to allow defendant/appellants to move in the Appellate Division for a stay of judgment pending appeal.

Defendant/appellants then filed a notice of appeal and subsequently filed the present motion for a stay pending a decision on the appeal. Chief Justice Kruse, as the Justice of the High Court who did not sit on the case at the trial court level, would ordinarily have heard the motion. The Chief Justice, however, disqualified himself from participation in the case. In the absence of a resident Justice qualified to sit as a member of the Appellate Division, the motion was therefore referred to the judge who presided at trial. See Appellate Court Rule 27(c), as amended.

This is, therefore, the third time the writer of the present opinion has had to consider whether to grant or extend a stay of execution in favor of the present appellants. At the hearing on this motion the Court suggested to counsel for appellants and appellee that the best course would be to deny the motion for a stay pending appeal, for the same reasons it was denied when presented to the trial court; to write an opinion setting forth those reasons; and to grant a brief additional stay so as to allow for review of this decision by the Appellate Division at its forthcoming regular session.

The trial court's reasons for denying a stay pending appeal are as follows:

A court should not grant a stay of judgment pending appeal automatically or casually. To do so would encourage losing litigants to file appeals in which they had no serious hope of prevailing, simply in order to postpone the effective date of judgment. The court's discretion to grant a stay should therefore be exercised only "for cause shown." A.S.C.A. § 43.0803; see also Trial Court Rule of Civil Procedure (T.C.R.C.P.) 62(a),(c), Appellate Court Rule 8. Such cause must presumably amount to more than just that the appellants, should they eventually prevail in their appeal, will have been inconvenienced by having had to comply in the meantime with the trial court's judgment.

When a judgment is for money alone, the costs imposed on the prevailing party by a delay in execution can be minimized by requiring a supersedeas bond and by awarding post-judgment interest in an amount equivalent to the value of the use of the money. See T.C.R.C.P. 62(d). Injunctive actions do not lend themselves to this sort of solution; rather, [17ASR2d13] the decision to grant or deny a stay pending appeal is similar to that on a preliminary injunction, depending partly on the "balance of equities" and partly on the likelihood that the appeal will be successful. See T.C.R.C.P. 62(a),(c); cf. Belcher v. Birmingham Trust Nat'l Bank, 395 F.2d 685 (5th Cir. 1968); 6 J. Moore, W. Taggart & J.Wicker,Moore's Federal Practice' 62.05 (2d ed. 1985).

An injunction will be stayed when it appears to the trial or appellate court that there is a strong chance the judgment will be vacated on appeal (e.g., when the correctness of the trial court decision depends on a question of law that can fairly be characterized as a close one); that compliance with the judgment during the pendency of the appeal would so change the status quo as to amount to an effective denial of the right to appeal, or would otherwise work extraordinary hardship on the appellant; that little or no hardship would be imposed on adverse parties by appellant's noncompliance; or that some combination of these conditions overcomes the presumption in favor of allowing each party the present enjoyment of what has been held to be his lawful rights. Cf. Belcher, supra; Moore's Federal Practice, supra, and authorities cited therein.

The judgment in the present case was to put a tract of agricultural land into the possession of the person held to be its owner. It is unlikely that the appeal can be heard and decided until late next year. Either appellants or appellee, whichever should ultimately prevail, will have suffered palpable damage should they be deprived of the use of the land for the next year. From a logistical standpoint it is clear that appellants, who would have to vacate the land and then move back on again in the event they should ultimately prevail, would be more substantially injured than would the appellee by having to wait one more year to be put back into possession. The Court has not, however, been presented with sufficient evidence from which to assess this difference in monetary terms; specifically, it does not appear whether the transaction costs of moving from one planting area to another would exceed the market value of a year's rental on this land. It does not appear that the injunction would require appellants to move any houses or other substantial structures, or that appellee threatens to destroy perennial crops (if any) on the land.

In assessing the "balance of equities, " moreover, it must be noted that the parties' differing logistical circumstances stem largely from differences in their own behavior. The trial record reflects that the dispute over the tract now in question has been a fairly active one for [17ASR2d14] about twenty years. During this time appellee and his two predecessors in title have tended to assert their claims in court, whereas appellants have expanded their plantations despite having long been on notice that these plantations were on land that had been registered as the property of the appellee. Appellants have acted vigorously on, and profited handsomely from, the adage that possession is nine-tenths of the law. It may be time for some other principle to come to the fore.

This leads to the question of the likelihood of success on appeal. Although a trial judge will tend to assess every appellant's chances at something less than fifty-fifty, it remains possible to make some distinctions. "In cases in which the court has moved into uncharted areas, it may be doubtful enough about the substantive correctness of its decision to stay an injunctive order.” Moore's Federal Practice' 62.05, n.16. Indeed, even a decision that presents no particularly new or mysterious questions of law may yet present difficult ones on which reasonable people can differ.

The present appeal, however, appears to rest squarely on a quarrel with the trial court's view of the facts. The memorandum accompanying the present motion makes it clear that the error of law alleged by appellants---that the Court should have found appellee's registration of the land invalid because it was posted in the wrong village---depends entirely on appellants' contention that "the trial court was clearly erroneous in finding that this land was part of Aasu." If the land was indeed part of Aasu, then the notice was properly posted and the registration is valid even if appellants' legal arguments are otherwise correct. Appellants may sincerely disagree with this finding. For the reasons set forth in the trial court opinion, however, they will be hard pressed to show on appeal that it was without substantial support in the record. Accordingly, their chances of prevailing on appeal must be assessed as slight.

The principal effects of granting a stay of the injunction pending appeal, therefore, would be (1) to allocate next year's profits from the use of the land to parties who are extremely unlikely to be held to own it; and (2) to encourage the present litigants and others to prosecute appeals to no likely effect other than delay. Accordingly, the stay pending appeal is denied.

In accordance with Appellate Court Rule 27(c), this opinion will be referred for review by the Appellate Division at its regular session to be held next week. To allow for such review, an additional stay will be [17ASR2d15] granted untilNovember 15, 1990. This brings the time during which the judgment has been stayed to over 100 days. Appellants should be prepared to vacate promptly in the event this opinion is not reversed by the Appellate Division.

Should appellants wish to present arguments to the Appellate Division beyond those already presented in their memorandum, they should do so no later than 4:00 p.m.on October 26, 1990. Should appellee wish to file a response to any such additional arguments, he should do so no later than4:00 p.m. on October 30. Should the Appellate Division wish to hear oral argument on this motion, counsel will be notified by October 30, and argument will be set for November 1.

It is so Ordered.

********

Fuata; Utu v.


A Samoan village or "nu'u" is generally comprised of a number of extended family groups or households each headed by a matai. The  8"8"  social structure of the village is conveniently found in its " _ fa'alupega _


 ," or village salutation „„„the ceremonial greeting of its principal matai in  2#2#  accordance with established social ranking and status. Thus the  _ fa 


 alupega _


  conveniently summarizes the constitution of a village's fono (council of matai). It also provides the village with its identity and signifies its autonomy. The orators take great pride in being able to commit to memory the  _ fa'alupega _


  of the different villages which is recited at all formal gatherings prior to speech making.  

Village  fa'alupega were early collected by the London Missionary Society, now the Congregational Christian Church in Samoa, in a publication called "O Le  _ Tusi _


   _ Faalupega _


 ." A recent edition is "O Le  _ Fa'avae O Samoa  _ Anamua _


 ," ( _ Malua _


  Printing and Publishing 1985).  ¸)¸)  Another early recording of  fa'alupega _


  may be found in Augustin Kramer, Die Samoa- _ Inseln _


 . 2  vols _


  (Stuttgart 1902-1903). See also "O Le  ²*²*[1]   _ Tusi _


   _ Fa'alupega _


  O Samoa  _ Atoa _


 ," (Methodist Printing Press in Samoa 1985). USUS(This aspect of the dispute social standing, rank, and inter-relationship as leading matai ---is difficult to fathom. These can hardly be issues  J.J.  of contention. The  _ tualupaga _


  must have been intoned or formally recited a countless number of times at village gatherings before; the Utu and  D/D/  Gogo on the one hand, and the  _ Fuata _


  and  _ Manaea _


  on the other, must have taken their respective appointed positions in the meeting house a countless number of times before; the parties and their respective predecessors must have experienced the appointed order for the serving  8181


  of kava at countless 'ava ceremonies previously held. Ancestral "permission" is a submission frequently heard from land claimants to explain an opposing party’s actual possession of disputed land. It is a submission which counters opposing claims to adverse possession. At the same time, case law development has generally taught that mere "permission" to use land only yields to the grantee a personal license revocable at will by the grantor. See, e.g.,  _ Mogolei v. Togo. 3 A.S.R. 185 (1955). Consequently, the Court is often confronted with the petition which prays for the application of common law licensing concepts to a land grant of yore based on ancestral "permission" that pre-dated the establishment of government and the adoption of the common law.

 

­ A few of the documentary exhibits of more recent origin looked very much like attempts at self„aggrandizement. These documents were quite obviously prepared, and even altered, in anticipation of an impending lawsuit.  

 

MALOTUESE LIVINGSTONE UTU, UTU SINAGEGE for UTU FAMILY, and SULI GOGO, Objectors

PEPA FUATA, Claimant

PEPA FUATA for himself and on behalf of the FUATA FAMILY, Plaintiffs UTU SINAGEGE, LIVINGSTONE POASA UTU and FAMILY, Defendants GOGO SULI, Plaintiff


I'UATA PEPA for FUATA FAMILY, and PASA TURITURI Defendants

 

High Court ofAmerican Samoa

Land and Titles Division

 

LT No. 04-90

LT No. 09-89

LT No. 19-89


November 26, 1990

 

[17ASR2d105]

 

In land title cases, permission given by an ancestor of one claimant to an ancestor of another to occupy the site in dispute may be relevant and material where one party has traditionally been subservient to and habitually rendered traditional service (tautua) to the other, since under the common law permission defeats a  _ permittee _


 's claim of adverse possession and grants him only a personal license which the grantor may revoke at will. Party permitting one who renders him  _ tautua _


  to occupy certain land has no   donative intent to grant title to such land to the permittee.  Matai's signature is required on separation agreements by family members to build homes on communal land. A.S.C.A. § 37.1503(a).

 

Separation agreements by family members to build homes on certain land which were signed by claimant as matai corroborated his claim that he exercised authority (pule) over such land. Claimant's assertion that lesser matai in his family habitually signed separation agreements by family members to build homes on communal land was rejected, since it did not explain why his family did not object to such recurring usurpations of his pule. Registration of disputed land was denied to both claimant and counter-claimant where neither proved his family was entitled to all the land claimed.

 

Before KRUSE, Chief Justice,  TAUANU'U, Chief Associate Judge, and  _ MATA'UTIA _


 , Associate Judge.


 ÜÜ  Counsel: For Utu  _ Sinagege  R.M., Charles v.  Ala'ilima For Pepe Fuata,  Asaua Fuimaono  and Tau'ese P.F. Sunia

For Gogo Suli, Fai'ivae A. Galea'i

 

The principal parties in these consolidated matters are the respective senior matai of the Utu family, the Gogo family, and the  _ Fuata _


  family, all of the village of  _ Amouli _


 , Eastern District. They each lay claims on behalf of their respective families to an area of land in the village of  vv   _ Amouli _


 , known as " _ Mataava _


 ." The case docketed L T No. 09-89 commenced with the application of  _ Fuata _


   _ Pepa _


  to enjoin a member of the  pp  Utu family,  _ Livingstone _


  Utu, from making repairs to his house which is located on a certain part of " _ Mataava _


 ." The matter docketed LT No.  j j   19-89 arose upon Gogo's objection to a separation agreement, relative to the same land area, between  _ Fuata _


  and  _ Pasa _


   _ Turituri _


 , which  d d    _ Fuata _


  had sought to have registered. Subsequently,  _ Fuata _


  surveyed his communal claim to " _ Mataava _


 , " which he then offered for registration  ^ ^   pursuant to  _ A.S.C.A. _


  


 


 37.0101 et seq. The registration application attracted the objections of the Utu and Gogo families resulting in the  X X   matter docketed LT No.04-90. [17ASR2d106]   


 R R    Historically, " _ Mataava _


 ," according to the " _ fa'alupega " books,


 is not only the traditional site of Utu's " _ maota _


 " (guest house), but also the  ((   site of the  _ Amouli _


  village " _ malae _


 " (the village green or open space used for assembly and various village gatherings). A good part of the  ""   testimony, therefore, centered on family and village history, albeit contradictory, conflicting, and, in certain areas, even noticeably confused.  
  (The only consensus about the land was the origin or explanation of its name, " _ Mataava _


 ," ---the opening through the reef --- because of its    location directly opposite a passage through the reef.) The testimony, however, took on the unmistakable purpose of asserting competing    claims to historical prominence as a basis for claiming original settlement and occupation of this rather central and important area of village      realty. It thus became painfully clear that there was another underlying controversy presented for resolution with these land matters, namely, 





  a quarrel about the identity of the original  _ settlor _


  or founding father of the village ---an issue which has in turn bred intense rivalry about  þþ  social importance and rank, as well as the relationship between one matai and the other.

Another common purpose associated with each party's assertion of historical prominence is that it also provided a basis for claiming that  ÎÎ   [17ASR2d107]  the other sides' rights to " _ Mataava _


 " were derived through claimant's forebears. Therefore, an adverse party's undisputed  ÈÈ  presence on the land today was readily explained away as stemming from "permission" given in bygone days by claimant's illustrious (and  ÂÂ  invariably generous) ancestor.

Ancestral permission may be a very relevant and material issue where the evidence suggests a traditional relationship of subservience  ’’  between one party and another and that " _ tautua _


 " (traditional service) has been habitually rendered by one to that other. Obviously, in a  Œ‑Œ‑  situation where there is permission coupled with  _ tautua _


 , there is an appointment to the use of land with customary strings attached; a  †­†­  scenario which is the antithesis of an absolute  _ donative _


  intent. Here, however, there was no credible evidence of such a subservient      relationship existing between any of the parties, although Utu did attempt to argue that the people of  _ Amouli _


  were all one family, namely, the  z!z!  Utu family, of which he is the senior matai. Thus, as head of this one family village, Utu maintains that he holds "pule" to all village lands. The  t"t"‑  immediate difficulty with this claim is that it is singularly held by Utu and certainly not endorsed by Chief Gogo nor Orator  _ Fuata _


 , who are  n#n#­  leading matai in their own right. (We also noted a similar rejection of Utu's claim by Faleafaga, another matai of Amouli, in the answer he filed in the pending matter, Utu v. Ben Foleofogo, LT No. 24-87.) Secondly, and at least for purposes of landholding, the Court has necessarily rejected this "one" family thesis: 1) when it upheld Chief Faleafaga's claim, on behalf of the Faleafaga family, to communal land holdings in the village of Amouli in  Foleofogo v.  Toloetou _


 , LT No.23-84 (1984),  _ aff'd Toloetou v.  Foleofogo, AP No.23-84 (1985); and 2)  V'V'#  when it rejected a petition by the Utu family to permanently enjoin the Paolo family from building on a part of "Mataava " in  Loveo'i Utu v.  Poolo, LT No. 1391-74 (1975). Similarly, the Paolo family of  _ Amouli _


  have also been recognized as landowners in Utu  and  Poolo v. Fonoti , 1  _ A.S.R. _


  208 (1910).  [17ASR2d108] The Court learned very little from the testimony on family/village history and tradition. We looked to the other evidence. Gogo, although he did not submit a survey, claimed a substantial area of land being the northern part of the tract surveyed by Fuata together with certain portions on and about the location of the road to Aoa. However, we find his claim to be the least believable. It was essentially founded either on ancestral permission or upon the alternative claim that the occupants of the land were descendants of a former Gogo. Gogo failed to, and indeed could not, provide any adequate corroborating proof of possession at any time. He appeared to be primarily concerned with what he perceived as insurgency on the part of the village orators, Fuata and Manaea, who were seen as stepping out of line and not  ü0ü0,  knowing their places. As opposed to the presentation of a defined claim for registration in metes and bounds, Gogo was content to simply seek a denial of Fuata's registration application. We conclude that Gogo's objection to the registration of that separation agreement between Fuata and Pasa Turituri, being the subject matter of Gogo v. Fuata, LT No.19-89, is without merit. Utu as the other counter-claimant did provide a survey of his claim to "Mataava." His survey varied only slightly from the Fuata's. With regard to this claim, we are satisfied on the evidence that the disputed land area contains Utu's traditional maota site, as well as the village malae. We further accept Utu's testimony that his traditional maota site was yielded for the use of the village church (Congregational Christian Church in American Samoa). In addition, the evidence was clear regarding an established presence by the Utu family on the eastern part of Mataava. This presence is significantly evident with the location of tombs of former Utu titleholders adjacent to the church building, together with the continuing occupancy of the eastern part of the land by a number of Utu family structures to the notable exclusion of the Fuata and Gogo people. This eastern part of Mataava is also the location of Livingstone Utu's home, the subject matter of Fuata v. Utu, Livingstone Poasa Utu, LT No. 9-89. We see no basis to Fuata's claim in derogation of Livingstone's right, as a member of the Utu family, to continuing possession and enjoyment of his residential situs.  However, while the evidence clearly demonstrated the Utu family's exclusive presence on the eastern part of Mataava, the evidence was equally clear that western part of Mataava has been in the occupation of the Fuata family to the exclusion of the Utu family. Fuata has a guest house located on this western side of "Mataava, " together with a number of Fuata family structures. Additionally, the signing of separation [17ASR2d109] agreements for homes to be built by family members on communal land is legally the function of the matai.  A.S.C.A. § 37.1503(a). The more reliable documentary evidence submitted by the parties corroborates Fuata's exercise of pule on the western portions of the land (just as it also corroborated Utu's exercise of pule on the eastern side) when he executed separation agreements  on behalf of the Fuata family for a number of structures found on western side of "Mataava." On the other hand, Utu's assertion that lesser matai in his family were in the habit of signing separation agreements on the family's behalf is hardly a convincing explanation for his family's recurring failure to object to what otherwise would be an unwarranted usurpation of Utu's pule by Fuata. This is yet another aspect of the "permission" theory presented to explain an adverse fact which is really beyond contention.  On the foregoing, we conclude that the evidence preponderates in favor of Utu with regard to the eastern part of "Mataava, " but in favor of Fuata with regard to "Mataava's" western area. Both of these parties have failed to prove entitlement to the full extent of their respective claims as surveyed and, therefore, registration shall not only be denied to the applicant Fuata but also to counter-claimant Utu. Judgment will enter accordingly; however, urn and Fuata are encouraged to draw that dividing line consistent with their respective interests to the land in accordance with the findings above. Such a line was roughly suggested in Urn's survey, exhibit "18."

It is so Ordered.

 

********

Fania; Sipili v.


ATOA SIPILI and SIPILIA TUALEVAO, Appellants

v.

PEFU FANIA, Appellee

High Court of American Samoa
Appellate Division

AP No. 8-90

November 19, 1990

__________

According to the Restatement of Restitution § 167, "[w]here the owner of property transfers it to another, being induced by fraud, duress or undue influence of a third person, the transferee holds the property upon a constructive trust for the transferor, unless before notice of the fraud, duress or undue influence the transferee has given or promised to give value." [17ASR2d97]

Before REES, Associate Justice, FONG**, Acting Associate Justice, KLEINFELD***, Acting Associate Justice, AFUOLA, Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Appellants, Togiola T.A. Tulafono

  For Appellee, Charles v. Ala'ilima

This appeal concerns a land dispute among an old man, his brother, and the brother's son.

A tract of land in Ili'ili called Moso'oi was offered for registration in 1983 as the individually owned property of Sipili Atualevao. His brother, Pefu Fania, objected to the registration on the ground that he and not Sipili had cleared and worked the land. Pefu later withdrew his objection to the registration; the trial court found that this was because Pefu had been assured by Atoa Sipili, the son of Sipili Atualevao, that the registration would be amended to reflect joint ownership of the land by Pefu, Sipili, and Atoa. Sipili did later direct the registrar to add Atoa's name, but not that of Pefu, as a co-owner of the land. In 1989, after Sipili had ordered Pefu to remove his house from the land and Atoa had begun selling parts of it, Pefu sued to compel execution of the agreement for joint ownership of the land. The trial court imposed a constructive trust in favor of plaintiff/appellee Pefu on the land and on the proceeds from the parts that had been sold.

Appellants Sipili and Atoa do not assign error to the trial court's holding that a constructive trust should be imposed as a matter of law on the facts as found. Rather, appellants urge that two findings of fact were clearly erroneous.

One of the two findings to which appellants take exception was that the testimony of two neighbors tended to support the testimony of Pefu that he began working the land in about 1954 and that his brother Sipili came on the land some years later with his (Pefu's) permission. Appellants argue that the testimony of one of these witnesses can be reconciled with the presence of appellants on the land at an early date, [17ASR2d98] and point to circumstances suggesting that the other witness could not have seen Pefu on the land in the 1950s.

Appellants' arguments on this point would require this appellate court to engage in various conjectures---having to do with such things as what one witness meant when she admitted to having seen appellants "on the area that's more to the back," whether certain old roads or trails were passable by automobile, and whether any crops could have been planted if there were no automobiles to haul the crops away---at least as extreme as those of which they accuse the trial court. In any event, the trial court would have been free to believe Pefu's testimony, and to disbelieve that of Atoa and Sipili, even if the former had not been corroborated. We find no clear error in the trial court's finding that Pefu first began clearing the land" at least as early as the year 1956" and that Sipili and his family came on the land with Pefu's permission "much later in time." (Opinion and Order issued March 13, 1990, at 3-4.)

The other assignment of error presents both a closer and a more important question. Appellants argue that even if Atoa did fraudulently induce Pefu to withdraw his objection to Sipili's pending registration by promising that the land would be jointly registered in all three names, this fraud was not attributable to Sipili. Accordingly, they argue that a constructive trust against Sipili was inappropriate.

There is no direct evidence that Sipili had knowledge of the 1983 conversation between Atoa and Pefu that induced the latter to withdraw his registration. Atoa denies that he ever promised Pefu anything, and Sipili denies even having known about Pefu's objection to his registration. There was, on the other hand, a wealth of circumstantial evidence from which the trial court might justifiably have inferred complicity by Sipili:

1) There was strong evidence of a "consensus or understanding of co-entitlement to the land" dating from the resolution of a previous dispute in 1979. The mediator at the Office of Samoan Affairs certified at the time that "a survey would be redrawn to reflect a division of the land between Pefu, Sipili, and Atoa." Opinion and Order at 8.

2) The facts with respect to Pefu's original occupation of the land being as the trial court found them to be, Sipili knew that any subsequent attempt to register the land as his own property would probably be unsuccessful unless Pefu could be induced to acquiesce. [17ASR2d99]

3) Although Pefu (an old man whose memory was clearly fading by the time of trial) did not testify one way or the other about whether Atoa explicitly told him that the 1983 promise that induced the withdrawal of his objection had been specifically authorized by Sipili, the court could justifiably have inferred such a representation from the documentary evidence that Pefu thereafter withdrew his objection on the ground that "[t]his matter has been settled by the two of us, Pefu Fania and Sipili Atualevao." (Exhibit 10.)

4) The court could also have inferred that Atoa was acting as Sipili's agent in making this promise from the relationship of the two men as father and son, from the fact that Sipili was the only immediate beneficiary of the result sought and achieved by the promise, and from Sipili's subsequent assignment to Atoa of a half-interest in the fruits of the enterprise in which he had thus assisted.

5) Finally, the court could and evidently did conclude (from the documentary evidence of previous machinations by Sipili and Atoa with respect to registration of this land and from their unsatisfactory attempts to explain these machinations away at trial) that the ruse upon Pefu in 1983 was a sort of signature offense, fully consistent with the character of both appellants and bearing the marks of participation by both.

Although this circumstantial evidence would not have compelled the trial court's finding that Sipili was implicated in Atoa's 1983 promise to Pefu, it provides more than adequate support for such a finding. There was no clear error.

Finally, appellants' argument appears to rest on the assumption that in the event of a finding of fraud by Atoa alone, his father and co- owner Sipili would be allowed to profit from such fraud at the expense of the innocent Pefu. This assumption is dubious. Even if Sipili had had no knowledge of Atoa's activities, his resulting enrichment and the corresponding impoverishment of the innocent Pefu would appear most unjust.(1) We need not decide, however, whether a constructive trust [17ASR2d100] would have been warranted on such facts, because the record adequately supports the even stronger facts found by the trial court.

The trial court judgment is AFFIRMED.

********

**Honorable Harold M. Fong, SeniorJudge,United StatesDistrict Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

***Honorable Andrew J. Kleinfeld, District Judge,United States Court for the District of Alaska, serving by designation of the Secretary of the Interior.

1. Cf. Restatement of Restitution § 167:

Where the owner of property transfers it to another, being induced by fraud, duress or undue influence of a third person, the transferee holds the property upon a constructive trust for the transferor, unless before notice of the fraud, duress or undue influence the transferee has given or promised to give value.

Fai'ivae; Willis v .


TONY WILLIS on behalf of himself
and the HEIRS OF AMELIA VA, Plaintiff

v.

FAI'IVAE GALEA'I and FAI'IVAE FAMILY, TO'OMATA
M.T .TUITELE, CHIEFS OF LEONE VILLAGE, SUAPA'IA
ANETERE'A, PIO LE'OSO and SE'E LE'OSO, Defendants

SA' AGA LEVI on behalf of himself and the
HEIRS OF AFELE LEVI, Plaintiff/Intervenor

WILLIAM AH KUOI, Defendant/Intervenor

PAT M. GALEA'I, Defendant/Intervenor

OLO LETULI, Defendant/Intervenor

SUAFO'A VELIO, Defendant/Intervenor

PIO SAGOTE on behalf of himself and the
SAGOTE F AMILY, Defendant/Intervenor

PULETU M. MEREDITH, Defendant/Intervenor

TAELEIFI MANE, Defendant/Intervenor

ROMAN CATHOLIC DIOCESE OF SAMOA-PAGO PAGO,
Intervenor

LE'OSO A. RIPLEY on behalf of the
LE'OSO FAMILY, Defendant/Intervenor

[17ASR2d180]
LE'OSO A. RIPLEY on behalf of the
Estate of EDWARD RIPLEY, Defendant/Intervenor

TONY WILLIS and VAETOIFAGA D. ASUEGA
on behalf of themselves and the
HEIRS OF AMELIA VA, Plaintiffs/Objectors

v.

FAI'IVAE FAMILY and MALUOLEFALE P. SALAVE'A,
Claimants/Defendants

TO'OMATA M.T. TUITELE, AVEGALIO FAMILY,
LE'ALAIALOA FAMILY, AIGAMAUA FAMILY, CHIEFS AND
TALKING CHIEFS OF LEONE, FAI'IVAE GALEA'I,
TAELElFI A. RIPLEY, and FAILAUTUSI AVEGALIO,
Plaintiffs/Objectors

v.

DOROTHY V. ASUEGA on behalf of the
HEIRS OF AMELIA VA TALAMAIVAO, Defendant/Claimant

TONY WILLIS, Plaintiff

v.

SU'A of the Village of Auma, ETUALE & SONS of the
Village of Auma, and DOES I through X, Defendants

TUITELELEAPAGA NAPOLEONE, Plaintiff

v.

TONY WILLIS, Defendant

LUCY UO AH CHING, EUGENE UO, EDWARD UO, and
EMILE UO for the UO FAMILY, Plaintiffs

v.

AMOS GALEA'I and FAI'IVAE GALEA'I, Defendants

[17ASR2d181]

High Court of American Samoa
Land & Titles Division

LT No. 45-81
LT No. 45-82
LT No. 08-84
LT No. 22-86
LT No. 06-87

December 14, 1990

__________

Although an offer of registration to which no one objects is automatically registered as the property of the claimant, when objections are made and give rise to a lawsuit, the court hears the evidence from all parties and then renders its judgment.

If no party meets the minimal burden to present some credible evidence, the action should be dismissed without prejudice to the rights of either party.

A land survey may not be registered until the owner has complied with the statutory requirements. A.S.C.A. § 37.0101 et seq.

The court's decision regarding ownership of a parcel of land is binding on all parties to that consolidated case; as such, they are estopped from objecting to an offer of registration by the party held to be its owner .

A party whose motion for a new trial has been denied, in whole or in part, has ten days from that date to file a notice of appeal. A.S.C.A. § 43.0802(b).

Before REES, Associate Justice, and MATA'UTIA, Associate Judge.

Counsel: For heirs of Amelia Va and Diocese of Samoa-Pago Pago, Charles V. Ala'ilima

  For Amos and Fai'ivae Galea'i and Fai'ivae family, Fai'ivae A. Galea'i

  For To'omata and Suapa'ia, Tau'ese P.F. Sunia

  For Pio Le'oso, Se'e Le'oso, and Le'oso A. Ripley, Arthur Ripley Jr.

  For William Ah Kuoi, Lucy Uo Ah Ching, Eugene Uo, Edward Uo, and Uo and Iuli families, Gata E. Gurr

  For Olo, Suafo'a, Avegalio family, Aigamaa family, and Le'alaialoa family, Aitofele T. Sunia

  For Puletu, Isa-Lei F. Iuli Taeleifi pro se

  For Failautusi Avegalio, Asaua Fuimaono

  For Tuiteleleapaga, Tautai A.F. Fa'alevao [17ASR2d182]

On Motions for New Trial, Reconsideration, Clarification, and/or Amendment of Judgment:

Six parties moved for new trial, reconsideration, clarification, and/or amendment of the judgment in these consolidated cases. The Tuiteleleapaga motion was heard on November 29, 1990. The Willis/Va, Diocese, Taeleifi, and Iuli motions were heard on December 5, 1990. The hearing on the Le'oso motion was postponed, by stipulation among the three parties affected by that motion, until an unspecified date in January 1991.

The assignments of error have overwhelmingly to do with our findings of fact. We reiterate these findings for the reasons stated in our original opinion and for such additional reasons as were stated from the bench in the November 29 and December 5 hearings, with the following exceptions:

1) The small section of the old registered survey of Mrs. Thomas Meredith, which is east of the present road and outside the recent Puletu survey, belongs to Tuiteleleapaga. Although we are bound by law to find that this section did belong to Mrs. Thomas Meredith at the time it was registered, it was not claimed by Puletu Meredith, and no other heir of Mrs. Thomas Meredith appeared to present evidence of occupation by Meredith heirs. There was, however, credible evidence of continuous occupation under a claim of right by Tuiteleleapaga family members since before 1962, the applicable date for adverse possession. (This section has been marked in red as "P-5" on the copy of Exhibit 21 on display in the Clerk's office.)

2) Edward Ripley was not "a foreigner married to a member of the Leoso family," as we stated on page 10 of our original opinion. He was part Samoan, the son of a papalagi man and a Samoan woman, and according to counsel for the Ripley and Le'oso families, Edward himself was a blood member of the Le'oso family through his mother. (This correction tends to strengthen the inference we drew from the relationship of Ripley to the Le'oso family, which is that the designation "Le'oso" as the northern neighbor on the 1915 Uo survey can be read to apply to the tract later registered as individual property of Edward Ripley as well as to the adjoining tract claimed by the Le'oso family.)

We also offer the following "clarifications" or additional observations: [17ASR2d183]

1) Counsel for the Willis/Va plaintiffs suggests that all the land within the massive survey offered for registration by Tony Willis in LT No.45-82, and not proved to be the property of any other party, must be registered as the land of the heirs of Va. Contrary to plaintiffs' argument, this has never been held to be required by the registration statute. Although it is true that an offer of registration to which no one objects is automatically registered as the property of the claimant, the situation changes dramatically when there are objections and these objections give rise to a court case. The court listens to the evidence from all parties and gives judgment in accordance with the evidence. In general, each party presents at least some credible evidence to support its claim and the Court decides in favor of the party whose evidence is most convincing. If, however, no party meets even this minimal burden, "the action should be dismissed without prejudice to the rights of either party." Tuia v. Salave'a, 3 A.S.R.2d 13 (1986).

Because plaintiffs press this point, we find it necessary to state explicitly what we said between the lines in our original opinion: the testimony that the Va heirs, after being awarded only a one-third interest in the back half of "the flat land" within this valley in 1906 and 1918, nevertheless proceeded to occupy and cultivate the extensive slopes surrounding the valley on the east, west, and north, was not credible. There was, on the other hand, credible evidence of historic occupation of areas within these slopes by Taeleifi, Tuiteleleapaga, Avegalio, and other families, including most of the families whose names are inscribed in these areas on the original 1906 Talamaivao survey. For the most part, however, these families did not survey their claims on the slopes, except those immediately adjoining the flat land. We therefore find the evidence insufficient to support a judgment that particular areas on the surrounding slopes belong to particular parties, except as detailed in our original opinion. The evidence offered by the various objectors and intervenors was, however, more than sufficient to defeat any claim by the Willis/Va plaintiffs with respect to the surrounding slopes.

2) As the Willis/Va plaintiffs point out, there is only one western tributary stream within this valley. The testimony of the witness Fai'ivae in the 1906 case, whom we found to have been apparently disinterested with respect to this area, was that this western stream formed the western boundary of the "flat land" comprising Legaoa. For most of its course the stream is in fact within a few feet one way or the other of the western edge of the flat land. It has long been recognized as the western boundary by all parties other than the Va heirs, including the Va heirs' cotenant, To'omata, who seems to have been the principal [17ASR2d184] occupant of the area just to the east of the stream. In any event, the best evidence is that the area west of the stream has been occupied by its present occupants since well before 1962, the applicable date for adverse possession.

Oddly, plaintiffs do seem to recognize the western stream as their western boundary in the mountainous area to the north---the area still claimed by plaintiffs despite the contrary findings and conclusions in Leuma v. Willis, 1 A.S.R.2d 48 (1980), which they are collaterally estopped to deny---but cease to recognize the stream as a boundary once it descends into the flat land. This is exactly the opposite of what the quoted 1906 testimony said and of what the evidence of occupation tends to show.

3) Both Su'a and the Diocese recognize that the boundary between them is the center line of a stream. The court reaffirms this understanding. Each party should check its survey to make sure that it conforms exactly to this boundary.

4) As has been frequently observed by Taeleifi Mane, who is representing the Taeleifi family pro se in this proceeding, the land "Tiafau" held to be the property of the Tuiteleleapaga family is not all the land called "Tiafau" in this area. Taeleifi also owns land called Tiafau. (It appears that in 1906 Avegalio may also have claimed some land called Tiafau; this land mayor may not be the same as the land the Avegalio family now calls "Laloafu" ("below the waterfall").

5) The parties who were held to own land within the survey offered for registration in LT No. 45-82 and who were either claimants or objectors in that case will be entitled to have these lands registered when this judgment becomes final. The LT No. 45-82 survey includes all the land adjudicated to be the property of the various parties in these cases, with the following exceptions: (1) the Tuiteleleapaga land called "Punaloa"; (2) the small strips of land adjacent to the Meredith survey held to be the land of Puletu; (3) all but the northernmost tip of the land held to belong to Suafo'a; and (4) some areas along the southern and eastern boundaries of the southern Su'a survey ("Solo").  See "Court's Illustration of Decision," the composite map we composed from a copy of Plaintiffs' Exhibit 1.

Although the four areas outside the survey that was offered for registration in LT No. 45-82 may not be registered until their owners have complied with the statutory requirements set forth in A.S.C.A. § [17ASR2d185] 37.0101 et seq., our decision with respect to ownership of these four parcels is binding on all parties to these consolidated cases. All parties to these cases are therefore estopped from objecting to an offer of registration of any of these four tracts by the party held to be its ower . Because everyone in the neighborhood seems to be a party to these cases, registration should be a relatively simple matter .

The Meredith, Uo, Ripley, and Diocese tracts are also wholly or partly outside the original survey that was offered for registration in LT No.45-82. Because these tracts have already been legally registered, however, there is no need for their owners to re-register them. Resurveys consistent with this opinion may, of course, be added to the appropriate files in the Territorial Registrar's Office consistent with the rules governing that office. The Court is willing to certify such resurveys as complying with the Court's decision, upon proper showing made pursuant to a post-trial motion.

6) Finally, the Court reiterates its warning to Iuli, Tuiteleleapaga, Avegalio, Su'a, and Olo that their surveys are apparently in need of minor correction to eliminate unintended overlaps with neighboring landowners. The northern Iuli survey map seems to place the tract about 200 feet south of its actual location on the ground. The Avegalio, Tuiteleleapaga, Su'a, and Olo surveys, all in the northern part of the land involved in this case, show far smaller overlaps with neighboring surveys. These problems apparently have nothing to do with the pins, etc., actually placed in the ground by the surveyors, which appear to be where the neighboring landowners have agreed that they should be. Rather, slight errors appear to have been made in the calculation of the point of beginning (P.O.B.) co-ordinates or in one or more of the bounds or angles copied onto the survey maps. These surveys should not be registered until the problems have been corrected. Again, the Court will certify compliance with its decision upon a proper showing.

Conclusion

The motions for reconsideration, new trial, clarification, and/or amendment of judgment (except the motion by Le'oso) are in all other respects denied. The parties whose motions have been denied, in whole or in part, have ten days from today to file any notice of appeal. See A.S.C.A. § 43.0802(b). [17ASR2d186]

The judgment originally entered in these consolidated cases will be modified by the addition of parcel "P-5", as described above, to the land awarded to Tuiteleleapaga.

The judgment may be further amended at a later date insofar as is consistent with our decision on the pending motion for new trial by Le'oso.

It is so Ordered.

********

Fai'ivae; Willis v.


TONY WILLIS, on behalf of himself 
and the Heirs of AMELIA VA, Plaintiff

v.

FAI'IVAE GALEA'I and FAI'IVAE FAMILY, TO'OMATA 
M.T. TUITELE, CHIEFS OF 
LEONE VILLAGE, SUAPA'IA 
ANETERE'A, PIO LE'OSO and SE'E LE'OSO, Defendants

SA'AGA LEVI, on behalf of himself and the 
Heirs of AFELE LEVI, Plaintiff/Intervenor

WILLIAM AH KUOI, Defendant/Intervenor

PAT M. GALEA'I, Defendant/Intervenor

OLO LETULI, Defendant/Intervenor

SUAFO' A VELIO, Defendant/Intervenor

PIO SAGOTE, on behalf of himself and the 
SAGOTE FAMILY, Defendant/Intervenor

PULETU M. MEREDITH, Defendant/Intervenor

TAELEIFI MANE, Defendant/Intervenor

ROMAN CATHOLIC DIOCESE OF SAMOA-PAGO PAGO, 
Intervenor

LE'OSO A. RIPLEY on behalf of the 
LE'OSO FAMILY, Defendant/Intervenor

LE'OSO A. RIPLEY on behalf of the 
Estate of EDWARD RIPLEY, Defendant/Intervenor

TONY WILLIS and VAETOIFAGA D. ASUEGA,
on behalf of themselves and the 
Heirs of AMELIA VA, Plaintiffs/Objectors

v.

[17ASR2d39]

FAI'IVAE FAMILY and MALUOLEFALE P. SALAVE'A, 
Claimants/Defendants

TO'OMATA M.T. TUITELE, AVEGALIO FAMILY, 
LE'ALAIALOA FAMILY, AIGAMAUA FAMILY, CHIEFS AND
TALKING CHIEFS OF LEONE, FAI'IVAE GALEA'I, 
TAELElFIA.
 RIPLEY, and FAILAUTUSI AVEGALIO, 
Plaintiffs/Objectors

v.

DOROTHY V. ASUEGA, on behalf of the 
Heirs of AMELIA V A T ALAMAIV AO, Defendant/Claimant

TONY WILLIS, Plaintiff

v.

SU' A of the Village of Auma, ETUALE & SONS of the 
Village of Auma, and DOES I through X, Defendants

TUITELELEAPAGA NAPOLEONE, Plaintiff

v.

TONY WILLIS, Defendant

LUCY UO AH CHING, EUGENE UO, EDWARD UO, and 
EMILE UO for the UO FAMILY, Plaintiffs

v.

AMOS GALEA'I and FAI'IVAE GALEA'I, Defendants

High Court of American Samoa 
Land & Titles Division

[17ASR2d40]

LT No. 45-81 
L T No. 45-82 
L T No. 08-84 
LT No. 22-86 
LT No. 06-87

November 6, 1990

__________

The court is bound by statute and treaty to recognize freehold grants made by the Land Commission of Samoa, which operated in Apia under the supervision of the then-Supreme Court of Samoa, prior to the United States-established government.

Acquiring land through adverse possession requires actual, open, notorious, hostile, exclusive, and continuous occupancy for the statutory period.

Because the adverse possession statute was amended in 1962 to change the prescriptive period from twenty years to thirty years, occupancy beginning later than the effective date of the 1962 amendment, which has been interrupted, or which has not been exclusive at any time since 1962 must meet the thirty-year requirement in order to acquire title by adverse possession. A.S.C.A. § 37.0120.

As a matter of law, an earlier survey registered in accordance with law prevails over a later one.

The court is bound to recognize a land survey which has been registered according to law. A.S.C.A. §§ 37.0101 et seq.

Before REES, Associate Justice, AFUOLA, Associate Judge, and TAIMANU, Associate Judge.

Counsel: For heirs of Amelia Va and Diocese of Samoa-Pago Pago, Charles V. Ala'ilima

  For Amos and Fai'ivae Galea'i and Fai'ivae family, Fai'ivae A. Galea'i

  For To'omata and Suapa'iaTau'ese P.F. Sunia

  For Pio Le'osoSe'e Le'oso, and Le'oso A. Ripley, Arthur Ripley Jr.

  For William Ah Kuoi, Lucy Uo Ah Ching, Eugene Uo, Edward Uo, and Uo and Iuli families, Gata E. Gurr

  For OloSuafo'aAvegalio family, Aigamaua family, and Le'alaialoa family, Aitofele T. Sunia

  For PuletuIsa-Lei F. Iuli Taeleifi pro se

  For Failautusi AvegalioAsaua Fuimaono

  For TuiteleleapagaTautai A.F. Fa'alevao [17ASR2d41]

This opinion concerns the second part of a bifurcated trial regarding land called "Lega'oa" in the Village of Leone. The facts and procedural history of the case are stated in the opinion rendered by the Court after the first part of the bifurcated trial, Willis v. Fai'ivae, 10 A.S.R.2d 121 (1989) [hereinafter Willis 1], aff'd, 12 A.S.R.2d 37 (1989).

The second hearing was held July 23-27, 1990. At this hearing the parties presented evidence with respect to the following issues:

1) The precise boundaries of "the flat land" in Lega'oa, within the meaning of To'omata v. People of Leone, 1 A.S.R. 142 (1906), and as further defined in our opinion in Willis I.

2) The dividing line between the inward half of the flat land (awarded in the 1906 decision to To'omataTali, and Va) and the seaward half (awarded to the chiefs of Leone).

3) The boundaries of land belonging to each of the various Leone families within the seaward half of the flat land.

4) The boundaries of such other tracts claimed by any party which, although not within the flat land of Lega'oa, are within the much larger survey offered for registration in 1982 by Tony Willis and Dora Asuega on behalf of the heirs of Va. (A number of the present parties objected to this offer of registration, and the dispute gave rise to LT No. 45-82, one of the consolidated cases now before us.)

5) Claims by any party to have acquired, by adverse possession or otherwise, an interest in land awarded to another party in the 1906 case.

I. Boundaries of "the Flat Land"

The Willis/Va plaintiffs submitted a 1990 survey of what they believe to be the flat land within Lega'oa. This survey is Drawing No. P-36-90, and is depicted by a solid black line in Plaintiffs' Exhibit No. 1, a large composite map. To'omata, a cotenant of the plaintiffs under the 1906 decision, also submitted a map depicting the extent of his claim.

We find that the Willis survey more accurately depicts the boundaries of the flat land than does the To'omata survey. In most places in this valley the land slopes almost imperceptibly up to the foot [17ASR2d42] of a fairly steep slope. Along the east and west sides of the valley, this steep slope generally begins at about the 25-foot contour line. Toward the narrow northern tip of the valley, the abrupt rise does not begin until a point near the 75-foot contour line. The plaintiffs' survey foilows closely, although perhaps not perfectly, the bottom edge of this abrupt rise. The To'omata survey, on the other hand, appears to reflect the present To'omata'sunderstanding of the boundaries he has worked out with his neighbors rather than an attempt to track the boundary of the flat land. Although evidence of such negotiated boundaries may be most helpful in determining claims based on adverse possession and related contentions, it is of little use in determining the starting point of our analysis: what is to be considered "flat."

Accordingly, we find the 1990 Wil1is survey to be the best evidence of the boundaries of the flat land. (Two slight exceptions are noted in Part IV of this opinion.)

II. The Boundary Between the Inland and Seaward Portions

Plaintiffs' 1990 resurvey also draws a line attempting to demarcate the boundary between the inward half of the flat land, held to belong to Va and her cotenants, and the seaward half, held to belong to the various families of Leone who had been occupying Lega'oa before 1906. This line is drawn so as to create two precisely equal parcels of 27.875 acres each. The line runs about fifty feet to the south of a common boundary recognized by plaintiffs' cotenant To'omata and his southern neighbors, the Fai'ivae and Le'alaialoa/Avegalio/Aigamaua families. This relatively close correspondence, together with the recognition of even a slight margin of error in calculating the land designated "flat," suggests that the traditional boundary is the best evidence of the dividing line. (The Fai'ivae survey, one of the three that recognizes this boundary, appears to be an accurate retracing of a survey prepared in 1915, a few years after the 1906 decision whose mandate we are interpreting.) Accordingly, we accept the To'omata/Fai'ivae/Le'alaialoa/Avegalio/Aigamaua boundary as the dividing line between the two halves of Lega'oa. (A slight discrepancy between the boundary defined by To'omata and that defined by Fai'ivae is discussed in connection with the Taeleifi/To'omata/Willis conflict, Part IV(A) infra.) [17ASR2d43]

III. Boundaries Within the Seaward Portion of Lega'oa

The 1906 High Court decision ordered the families of Leone who were held to be the owners of the seaward or southern portion of Leone to divide it among themselves. It appears that this was done; a number of interlocking survey maps made in 1915 present a reasonably coherent picture of how the land seems to have been divided at that time. As is perhaps inevitable with the passage of eighty years or so, however, several minor and one or two major boundary disputes exist. We discuss first the pattern of land occupation that appears to have existed in 1915. We then discuss conflicts in the present surveys, arising in most cases from subsequent changes in that pattern.

A. The Pattern of Settlement in 1915

A number of parties presented claims within the seaward half of the flat land comprising Lega'oa. We list them in order, more or less, from south to north: Puletu, on behalf of the Puletu family and also on behalf of the heirs of Mrs. Thomas Meredith; Suafo'aTuiteleleapagaUo; the (Roman Catholic) Diocese of Samoa-Pago PagoSu'a; the Heirs of Sekio AvegalioLe'alaialoa/Avegalio/AigamauaFai'ivae; the Estate of Edward Ripley;Le'osoIuliTaeleifi.

The Diocese and the Heirs of Sekio rely on freehold land grants approved by the Land Commission of Samoa, which operated in Apia under the supervision of the then-Supreme Court of Samoa prior to the coming of the present government. (The Diocese relies on a grant to the "French Roman Catholic Mission"; the land in question was generally known as the "Sisters' Land.") This court is bound by statute and treaty to recognize Land Commission freehold grants, and lands subject to such grants were specifically excluded from the 1906 decree dividing Lega'oa. The Ripley estate, the Meredith heirs, and the Uo family rely on surveys made in August 1915 and registered shortly thereafter in the Register of Native Land Titles. All of the remaining parties are chiefs of families of the Village of Leone, as are Uo and the current successors of Meredith and Ripley.

The five parties who are relying on long-registered land titles have submitted old survey maps depicting the extent of their holdings. Of these, all but the Heirs of Sekio have submitted recent retraces of the old surveys.Fai'ivae has also submitted an August 1915 map, made by the same surveyor who prepared the other maps but apparently never registered. The remaining parties have not submitted old maps, but all [17ASR2d44] of these parties without exception are listed on at least one of the other parties' old maps as having then occupied the same general area they now occupy. All things considered, the six old surveys fit together quite well, the parties have generally been able to trace them with what appears to be reasonable accuracy, and there are remarkably few conflicts.

Three composite maps submitted to the Court depict reasonably well the relationship among these ancient surveys. Plaintiffs' Exhibit 1 unfortunately omits the Fai'ivae resurvey. It also places the Uo survey as depicted in the Uo family's recent resurvey (i.e., where the Uo family has decided it belongs) rather than in the apparent relation of the 1915 Uo survey to the other old surveys. Two other composite maps, Fai'ivae Exhibits 21 and 23, include the Fai'ivae survey but omit the Uo survey. None of the three composite maps depicts the Sekio survey (based on a grant to a person named Krause, later purchased by "Captain Allen" and then by SekioAvegalio), because the heirs of Sekio unfortunately did not resurvey it as part of their preparation for this case.

We have found it convenient to use Exhibit 21 as a basis for our analysis of this area. It appears to be in agreement with Exhibits 1 and 23 in all important particulars. The Court has made notations on Exhibit 21 to indicate where we think the Uo and Krause/Allen/Sekio tracts were located in relation to the others already depicted in the exhibit.

We find that the Meredith, Ripley, Fai'ivae, and Diocese resurveys retrace as nearly as possible the original boundaries of the surveys on which they were based.

In particular, we note (1) that the northwestern corner of the Diocese survey was a sharp corner at the intersection of two streams, and that this feature is still present; (2) that the western boundary of the Diocese survey was the meandering course of a stream, and that the courses in that survey substantially follow the course of the present stream at the location of the western boundary of the resurvey; (3) that the northern boundary of the Ripley survey is marked by a large hole in the ground ("to") which is still present; (4) that the lower 442 feet of the eastern Fai'ivae boundary is identical to the western Ripley boundary; and (5) that the southernmost boundary of the Meredith survey appears to coincide closely with the traditional southern boundary of Lega'oa. The Diocese, Fai'ivae, and Ripley surveys each take note of common boundaries with the others, and the recent retraces of these surveys fit together (with a space in the middle for the Heirs of Sekio tract) almost [17ASR2d45] as well as the parcels themselves evidently did in 1915. The Meredith survey begins about fifty feet to the north of the spring or pool called "Punaloa,” which has long been a prominent landmark in this area. Punaloa appears to have been part of a tract of land of the same name, registered by the Land Commission of Samoa as the land of Matthew Hunkin and defined by Talamaivao in 1906 as the southern boundary of Lega'oa.

We further find that each of these ancient surveys depicted a tract of which the present claimant was then (ca. 1906-1918) generally reputed to be the owner; and that each of the claimants has occupied its tract, albeit in some cases intermittently, down to the present day. With such minor exceptions as are noted below, we hold these parties to be the owners of their resurveyed tracts.

We find, however, that the Uo resurvey does not accurately reflect the location of the Uo tract ("Leifi") originally surveyed in 1915. The original survey denotes "Fai'ivae" and "Leoso" as the neighbors to the north, and the northern boundary of the 1915 Uo tract appears to have corresponded, with some variations, to the southern boundary of the Fai'ivae and Ripley surveys. (Edward Ripley was a foreigner married to a member of theLe'oso family.) The Uo retrace, instead of following the southern boundary of these tracts, instead overlaps substantially with them, taking up roughly the southern half of the Ripley tract and the southern third of the Fai'ivaetract. As we have noted, the location of the to at the north of the Ripley tract and of the streams bounding the Diocese tract strongly suggest that the Ripley, Diocese, and Fai'ivae retraces are where they ought to be. If this is correct, then the Uo tract should be about 200 feet further to the south.

Moreover, the western boundary of the 1915 Uo survey almost entirely bordered land occupied by Suafo'a. At the extreme northwest of the survey, about twenty feet south of the northwest corner, the map depicts what appears to be a fence jutting off to the west. To the north of this fence, and to the northwest of the Uo survey, were the "Marist Sisters." The recent Uo resurvey, however, would so situate the tract that its whole western boundary would be parallel to the Sisters' land, and there would be no boundary at all with Su'afoa. This is shown on Plaintiffs' Exhibit 1, and can also be seen from examining the locations of Suafo'a, the Sisters' land,Fai'ivae, and Ripley on Exhibits 21 and 23.

An exhibit prepared by surveyor S. T. Taua'i and submitted by Uo, purporting to show relative locations of the UoSuafo'a, and Sisters' [17ASR2d46] tracts and certain present-day monuments, is flatly wrong. This map (Uo Exhibit 37) would have the present paved road going across a corner of the Suafo'a survey and through the middle of the Sisters' land, whereas in fact the road does not touch either of these tracts and runs parallel to, not across, their eastern boundaries. Nor does either the Sisters' land or the Suafo'a survey come anywhere near the Fai'ivae houses depicted on this map. A larger composite map also submitted by Uo, Exhibit 35, while inconsistent in certain minor respects with the other composite maps submitted to the Court, would also be inconsistent with Uo Exhibit 37 if the Sisters' land and the Suafo'a surveys had been placed upon it in anything like their actual locations. Indeed, it appears that the Uo surveyor did trace the outline of the Suafo'a survey on Exhibit 35, just west of the Puletu survey where it belongs, but then thought better of it; possibly this was because the tracing on Uo Exhibit 35 depicts the Suafo'a land in a dramatically different place (relative to the Uo survey) than it appears on Uo Exhibit 37. Either Uo is wrong, or Fai 'ivae, Ripley, Suafo'a, and the Diocese are all wrong.

Nor is the location of the Uo retrace itself based on any enduring monuments; as we shall discuss, it appears to have been chosen because the Uo family member who ordered the retrace preferred to contend with Fai'ivaeand Ripley than with her neighbors to the south.

The dotted and solid red lines inserted by the Court on Exhibit 21 depict what we believe to have been the most probable location of the original Uo survey of "Leifi." Its boundaries with Suafo'a, the Sisters, Fai 'ivae,Le'oso (including the Ripley tract), the "steep hillside," Tuiteleleapaga, and "Pule" (Puletu/Meredith) are all approximately the same distances, and in most cases approximately the same angles, as those depicted in the original. This is also quite close to the location estimated by plaintiffs' surveyor at the 1988 hearing. (See Plaintiffs' Exhibit 29, 1988 Hearing.)

We have also inserted on Exhibit 21 what appears to have been the most probable location of the Krause/Allen/Sekio tract. A 1901 conveyance of this property (F. Avegalio Exhibit 60) denotes a common boundary withFai'ivae on the east and with the Sisters' land on the west. Save for a slight variation on the western boundary, the tract is exactly the same size and shape as that depicted in the original registration and in subsequent conveyances.

The other parties claiming land in this area---Suafo'aTuiteleleapagaLe'alaialoa/Avegalio/AigamauaSu'aIuliLe'oso, and [17ASR2d47] Taeleifi---did not submit old surveys. Each of these families, however , was denoted on the maps of other parties as occupying land circa 1906- 1918 in approximately the same location it now claims, and each appears over the years to have occupied at least some of the land it now claims.

B. Suafo'a/Diocese Conflict

Suafo'a, now as in 1915, occupies a tract to the west of the Puletu/Meredith and Uo tracts and to the south of the Sisters' land. The survey submitted by Suafo'a contains a small overlap with the Diocese survey. Because the Diocese tract is already legally registered as freehold land, the only way Suafo'a could prevail with respect to this overlapping section would be by adverse possession. Suafo'a testified that he has long occupied the whole area within his survey, but counsel for the Diocese introduced photographs of the overlap area which show no signs of recent occupation in the northwest corner of the Suafo'a survey. This area is on the far (northwest) side of a stream that roughly divides the survey of Suafo'a from that of the Diocese. Accordingly, we hold that the Diocese prevails on the portion of the disputed area on the northwest side of the stream.

With respect to a corner of the Diocese survey that crosses over onto the southeast bank of the stream, there is no direct evidence of whether this area was ever occupied by the Sisters. In general, the evidence is to the effect that the Sisters' land was used for plantations until the mid-1960s by students at the Sisters' school in the village proper. We find it unlikely that the Sisters or their students would have taken the trouble to cross the stream in order to cultivate this small strip of land. Accordingly, Suafo'a prevails with respect to this portion.

The far western portion of the Suafo'a survey appears to be outside the traditional boundaries of Lega'oa, and within the aforementioned Hunkin survey of land called Punaloa. This can be seen on Exhibits 1 and 23. We express no opinion on this conflict.

With the aforementioned exceptions, we find that Suafo'a owns the land within the Suafo'a survey.

C. Su 'a/Diocese and Su'a/Willis Conflicts

Su'a has no conflicts with anyone except a small conflict along the stream that forms his eastern boundary with the Diocese. At trial it appeared that Su'a and the Diocese agreed that the center line of the [17ASR2d48]stream should be the boundary. This is consistent with the best documentary evidence, the Land Commission grant to the Roman Catholic Mission.

Part of the Su'a survey is outside the flat land of Lega'oa, on the western slopes of the valley. At the recent hearing plaintiff Tony Willis testified that his relatives (heirs of Amelia Va) had planted and cultivated these slopes even after the 1906 decision had excluded them from the land awarded to Va and her cotenants as part of Lega'oa. We find the testimony of Su'a, to the effect that members of his family have long cultivated this area, to be credible. We note that Su'a is listed as an occupant of this area in the original 1906 To'omata survey. Any cultivation by the heirs of Va was therefore neither "exclusive" nor "continuous" and did not give rise to acquisition of title by adverse possession. (For the reasons stated here and in footnote 1 infra, we also reject the Willis/Va claim to acquisition of the mountain slopes by adverse possession against other families in the eastern and western slopes of the valley. A dispute concerning the mountainous area near the northern tip of the valley is discussed in Part IV(D) infra.)

Accordingly, we hold that Su'a is the owner of the land within Su'a survey map No. 582-8-90, except insofar as it may cross the eastern stream into land belonging to the Diocese. (It appears from the two maps that theSu'a survey does follow the stream and that only the Diocese survey will need to be adjusted.)

D. Le'alaialoa/Diocese/Fai'vae/Galea'i/Sekio Conflicts

The Le'alaialoa/Avegalio/Aigamaua survey (the three families are closely related and have joined as one party in the present litigation) also has a small overlap with the registered freehold survey of the Diocese. The only direct testimony with respect to occupation of this area (other than acknowledgment by various parties that it has long been occupied by "Lealailoa Felise") was the testimony of Avegalio. He said he and his family and the girls from the Sisters' school cultivated this area side by side during the 1950s. Relations were friendly, and the boundary reflected in the Avegalio survey was the one observed by both sides. (The boundary drawn in theAvegalio survey was a straight line. The boundary reflected by the Diocese survey is a meandering one.) Avegalio went off island in 1957 and returned in 1968; by then the Sisters' school had closed down and there were no more girls working the adjacent tract; and the Avegalio/Aigamaua/Le'alaialoa family had [17ASR2d49] built houses on their tract, although not in the small area that overlaps the Diocese survey. The 1971 aerial photograph and the Court's viewing of the land confirm that the line drawn by Avegalio reflects the actual boundary of Le'alaialoa/Avegalio/Aigamaua occupation, at least during the last twenty years. (A 1963 aerial photograph cited by the Diocese as evidence of a different boundary is very difficult to read and provides no support for either side.) Although it is possible that the Le'alaialoa/Avegalio/Aigamaua people did not occupy the area now in dispute until after the Sisters left during the 1960s---and that their occupation would be just short of that necessary to have acquired title by adverse possession(1)---the contrary testimony of Avegalio is credible, as well as uncontradicted. We therefore find that the Le'alaialoa/Avegalio/Aigamaua families own the land within their survey, with the exception of a small area to the north discussed in connection with theTo'omata and Willis/Va surveys, Part IV(E) infra.

There is also a small overlap between the Fai'ivae survey and the Diocese survey within the southeast panhandle of the latter. This small overlap (a strip about ten feet wide and fifty feet long) is also [17ASR2d50] within a survey registered in 1979 as the individual land of Pat Galea'i, a member of the Fai'ivae family who was represented by Fai'ivae during the trial of these cases. As a matter of law, an earlier survey registered in accordance with law prevails over a later one. As there is no evidence of twenty or thirty years' adverse possession of this area by Fai'ivae or Pat Galea'i, the Diocese prevails with respect to this strip of land.

For the same reasons, the Diocese prevails with respect to the larger portion of the Pat Galea'i survey which overlaps the Sisters' land. A house constructed by Pat Galea'i during the 1980s is only partly within the PatGalea'i survey, entirely outside the Fai'ivae survey, and entirely within the registered Diocese survey. The land on which this house was built belongs to the Diocese. Another portion of the Pat Galea'i survey, to the north of the house and mostly outside the rock wall that surrounds it, overlaps the previously registered Krause/Allen/Sekio survey. This land belongs to the heirs of Sekio.

Just to the north of the narrow strip that overlaps the Diocese, there is a long triangular piece of land included within both the Fai'ivae and the Pat Galea'i surveys. Because the Pat Galea'i survey has been registered according to law and the Fai'ivae survey has not, we are bound by the land registration statute, A.S.C.A. §§ 37.0101 et seq., to recognize this land as the individual property of Pat Galea'i. (The law is in this respect unaccommodating to Fai'ivae's position that the individual registration by Pat was just a convenience and the land was supposed to remain family land. If Pat wishes to deed the land back to the family, he is, of course, free to do so.)

In the area of the Diocese, Fai'ivaeLe'alaialoa, Pat Galea'i, and Sekio surveys there are also three small areas claimed by no one. These areas, marked by the Court on Exhibit 21 as Parcels 1 through 3, were included within another Fai'ivae survey which Fai'ivae withdrew during the trial. That survey also included substantial portions of the Diocese, SekioLe'alaialoaTo'omata, and Willis/Va surveys; its withdrawal was an act not only of admirable statesmanship but also of plain good sense. However, Parcels 1 and 2 within this area are closely appurtenant to lands occupied by Fai'ivae, and are held to be property of the Fai 'ivae family in the absence of better evidence of title by any other party. Parcel 3 is more nearly appurtenant to the Le'alaialoa/Avegalio/Aigamaua tract, and is held to belong to those families. [17ASR2d51]

E. Puletu/Uo/Tuiteleleapaga Conflicts

Perhaps the greatest disparity between the pattern of occupation documented in the 1915 maps and the pattern of claims among the present parties is in the southernmost portion of Lega'oa. The parties with claims in this area are Puletu/Meredith, Uo, and Tuiteleleapaga. The dispute in question also spills over into the southern portions of the Fai'ivae, Ripley, and Le'oso surveys.

We have already discussed the 1915 Uo and Meredith surveys. As noted, a recent retrace of the Meredith survey places this tract where it appears to belong: at the southernmost extreme of the central portion of Lega'oa, just above Punaloa to the south, along an agreed boundary with Suafo'a to the west, and identical in metes and bounds to the 1915 map. This resurvey (Ripley Exhibit 24) was prepared in 1987 at the request of LafineMeredith and with the apparent co-operation of Puletu Meredith, son of the late Mrs. Thomas Meredith and also the matai of the Puletu family of Leone. (Mrs. Meredith was herself the daughter of a Puletu title holder and appears to have acquired her land from Puletu.) In the present litigation, however, Puletu Meredith has not limited his claim to the 1987 retrace of the 1915 Meredith map; rather, he claims a larger tract described by a 1990 survey, Uo Exhibit 36. This survey includes almost the entire Meredith retrace, as well as additional areas to the south, to the southeast and, most importantly, to the north.

The 1990 Puletu!Meredith survey extends about 200 feet north of the 1915 Meredith survey. This is almost exactly the north-south dimension of the 1915 Uo survey. Indeed, the northern portion of the 1990Puletu/Meredith survey appears to occupy roughly the western third of the area which we have determined to have been the most probable location of the 1915 Uo survey. (This can be seen on Exhibit 21.)

The recent history of the Uo tract made it a likely prospect for anyone in the neighborhood who felt he needed more land. In 1928 it was leased by Uo to the Diocese for a term of forty years, to be used by the girls at the Sisters' school for the purpose of "gardening." (The lease, registered and approved by the Governor, is Diocese Exhibit 48.) Several witnesses did remember seeing the Sisters' students on this land during the 1940s and 1950s. After the school closed down in the early 1960s, the land appears to have been ignored by the Uo family---with the crucial exceptions of some planting by one elderly member of the Uo family during the mid-1960s (according to the testimony of Fai'ivae) and perhaps some clearing by another such person on the other side of the [17ASR2d52] road at about the same time (according to witness Pio Sagote). With these exceptions, theUo tract appears to have been vacant between the early 1960s (when the Sisters' school closed) and the late 1970s (when Tuiteleleapaga people began moving into it from the south).

Puletu himself did not present any evidence that Puletu or Meredith people ever occupied the area north of the original Meredith survey; the present house in this area, built in the late 1970s or 1980s, belongs to a member of the Tuiteleleapaga family. The situation was similar on the other side of the road: witness Tuise'e for the Tuiteleleapaga family remembered that in the early days, "we all worked together on the seaward portion of the land" now claimed by Tuiteleleapaga (emphasis added). Tuise'e said that Tuiteleleapaga people did not begin occupying the inland portion of their current claim (i.e., the area corresponding to the eastern part of the old Uotract as depicted by the Court on Exhibit 21) until the mid-1970s when Faletoi and Uila began working there. The Tuiteleleapaga people did not move to the west side of the road until even later, when the land was "given to us," apparently by Puletu.

The situation was complicated in 1982 by the return to the Territory of Lucy Uo Ah Ching. A granddaughter of the Uo who had registered this land in 1915 and leased it to the Diocese in 1928, Mrs. Ah Ching returned after an absence of about thirty years and determined to relocate and repossess her family land. She and other members of her family had some difficulty in deciding upon the exact location of the land, but finally settled upon a spot agreed upon by their neighbors to the South. Their neighbor to the North, Fai'ivae, was a strong dissenter from this consensus. Their other northern neighbors, Ripley and Leoso, were not consulted, although a former Leoso titleholder was apparently present at the Uo survey in his capacity as paramount chief of the County. The presence of several southern neighbors and only one northern one may account for the decision to locate this survey about 200 feet to the north of the apparent location of the 1915 which it purported to retrace.

For the reasons we have discussed, we believe the Fai'ivae and Ripley surveys accurately portray the locations of these families' land and that the correct location of the Uo property registered in 1915 is to the south of these surveys and just to the north of the original Meredith plot, as depicted in Exhibit 21. Although the Uo family has ignored this land for so long that they have forgotten exactly where it is, they have not quite lost it to adverse possession. This is because the Sisters' students [17ASR2d53] used the land at least until the late 1950s, and there was some Uo use of it in the mid-1960s. Moreover, there is no persuasive evidence that anyone else occupied the land until the 1970s. (The red dotted line on Exhibit 21 designates the Court's judgment with respect to the original northern and western boundaries of the Uo tract. In order to rationalize the neighboring boundaries, however, and in the absence of persuasive claims by other parties, the small strips of land between the dotted line and the recent Suafo'a and Fai'ivae survey boundaries are also awarded to Uo. A minor adjustment in the Uo/Ripley boundary is also necessary to compensate for a slight discrepancy between the two 1915 registered surveys.)

We find that the 1987 retrace of the Meredith survey accurately retraces the 1915 registered survey of Mrs. Thomas Meredith and is the property of her heirs. We further find that a strip of land about 111 feet long and 20 feet wide, north of the original Meredith survey and south of the Uo tract, designated P-2 on Exhibit 21, is the property of PuletuPuletu Meredith has at least recently begun authorizing people to occupy this area (as he has within the larger area to the north designated P-1 and held to be the property of Uo); it is within the 1990 Puletu survey, and it is claimed by no other party. Another area within the Puletu survey, immediately to the east of the southern part of the original Meredith survey and designated P-3 on Exhibit 21, is also Puletu property. Puletu presented persuasive evidence that this area has in fact been traditionally occupied by Puletu family members. A further portion of the Puletu survey, to the south of the original Meredith tract, appears to be mostly or entirely outside the traditional boundaries of Lega'oa and therefore outside the scope of this litigation.

The area to the east of the Puletu and Meredith surveys and to the south of the area marked "To Uo" on Exhibit 21, and contained within the plaintiffs' resurvey of the flat land of Lega'oa (the solid line on Exhibit 1, approximately retraced by the Court in blue on Exhibit 21) is entirely within the Tuiteleleapaga survey of land designated "Punaloa " and is held to be the property of Tuiteleleapaga. The Tuiteleleapaga survey also encompasses a large area on the steep slopes to the east. Although these slopes may well be the property of the Tuiteleleapaga family, they are neither within the flat land of Lega'oa nor within the survey offered for registration in LT No.45-82 and are therefore outside the scope of this litigation. [17ASR2d54]

F. Ripley/Le'oso/Iuli/Taeleifi

The Ripley resurvey, as we have stated, is an accurate retrace of the 1915 registered Edward Ripley survey. The only disputes ir, the present litigation are the dispute with Uo already discussed, and a claim byTuiteleleapaga to a small section of the Ripley survey in the south. Because there was no persuasive evidence of Tuiteleleapaga occupation of the northern portion of the present Tuiteleleapaga claim prior to the 1970s, we hold that this area has not been acquired by adverse possession from Ripley. The Estate of Edward Ripley is the owner of the tract described by the Ripley resurvey. (Similarly, there is no evidence of historic, or even recent, Tuiteleleapaga occupation of a small area in the southwest corner of the Fai'ivae survey also claimed by TuiteleleapagaFai'ivae is the owner of this area.)

The Le'oso family finds itself in an awkward posture with respect to any litigation concerning Lega'oa. On the one hand, the 1906 decision specifically excluded Le'oso from the list of Leone chiefs entitled to have a share in the seaward half of Lega'oa. (In Le'oso v. Ripley, LT No.18-1920, the Court rebuffed an attempt by Le'oso to relitigate this issue with the observation, "Case thrown out of court." The opposing litigant was Edward Ripley, a Le'oso in-law who, it would appear from the old maps, almost certainly had acquired his property from Le'oso in the first place.) On the other hand, Le'oso was clearly present in this area in 1906 and appears still to have been present in 1915. He seems to have lost the 1906 case because he withdrew his objection to the massive To'omata survey in a misconceived effort to make a separate peace with To'omata. Counsel in the present case, moreover, has presented persuasive evidence that the area immediately to the east of the Ripley tract (designated as belonging to "Le'oso" in two of the 1915 maps) has been occupied by Le'oso people (principally Sagote and his immediate family) at least since the early 1950s. As this land is outside the "flat land" and therefore outside the 1906 court's definition of Lega'oa (see Exhibit 1), a holding that this area belongs toLe'oso is not inconsistent with the 1906 or 1918 decisions. In any event, the Le'oso occupation of this area appears to have been open, notorious, exclusive, continuous since the 1950s, and hostile to any other claim on the land. We therefore find that Le'oso is the owner of the land due east of the Ripley tract and within the Willis survey offered in LT No. 45-82 that defines the scope of this litigation. (We express no opinion on the more steeply mountainous area further to the east, which, although within the recent Le'oso survey, is outside the scope of these consolidated cases.) [17ASR2d55]

The Le'oso claim also extends to the north of the Ripley survey and to the east of the Fai'ivae survey. On the 1915 Fai'ivae map the land in this area is designated as belonging to Iuli and Taeleifi. The 1915 Ripley map also identifies Iuli as the neighbor to the north.

We are convinced that the Sagote family, acting as members of the Le'oso extended family, has long had plantations in the area designated on the old maps as belonging to Iuli and Taeleifi. Indeed, the Sagote people have even built a house on the hillside in an area that may once have belonged to Iuli and may formerly have had a small Samoan working house squarely within the 1915 Iuli tract. We have also been presented, however, with persuasive testimony that the two areas identified in the 1915 maps as belonging to Iuli and Taeleifi were in fact traditionally regarded as lands of those families and that both families have made at least such use of these lands as would have prevented Sagote or anyone else from having "exclusive" or "continuous" possession for twenty years. Specifically, Leota Toloa testified credibly that he and other members of the Iuli family, including amatai named Atina, worked this area for many years and that he himself only stopped going there in 1979. This testimony was confirmed by other witnesses and was partly confirmed even by Pio Sagote, who explainedAtina's presence on the land by reference to a connection with the Le'oso family.

There was abundant testimony as to the presence of Taeleifi people in the overlap between Taeleifi and Le'oso. Indeed, at the present time Taeleifi people and Le'oso people seem to be more or less working around each other in the overlap between the two surveys. This tends to confirm what would in any case have been an obvious hypothesis: that the Le'oso/Sagote plantations began within the area belonging to Le'oso, gradually extended northward into the Iuli area, and began more recently to encroach on the Taeleifi tract.

The one thing that is impossible to tell with precision from the 1915 maps is the depth of the Iuli and Taeleifi tracts: how far they extended toward the mountain. From the maps we can tell only that these tracts were reputed to extend at least 200 feet or so east of the Fai'ivae boundary. The Taeleifi survey. however, extends 369 feet east from this boundary (up to about the 100-foot contour) and the Iuli survey extends 500 feet east (to the 200-foot contour).

We find that the Iuli family has presented persuasive evidence of traditional ownership of the area immediately adjacent to the Fai'ivae and Ripley surveys, and of at least such occupation of this area as would[17ASR2d56] prevent its acquisition by adverse possession, but has presented no evidence of such ownership or occupation further east than 200 feet from the Fai'ivae boundary. (We further find that the northern boundary of the Iuli tract should be modified very slightly to correspond with the southern boundary of the Taeleifi survey of "Lalolelata," which more accurately reflects the 1915 Fai'ivae map. The eastern boundary should be calculated by reference to a line perpendicular to the southern boundary of the Taeleifi survey, extending to the southern boundary of the Iuli survey.)

The best evidence of ownership of the area within the Iuli survey which is more than 200 feet east of the boundary is the occupation of this area by Pio Sagote and his family. Although we have no direct evidence of when this occupation began, in the absence of direct evidence of any prior occupation, this fact works for rather than against the Le'oso claim. Accordingly, we find this area (insofar as it is also within the survey offered in LT No. 45-82 and therefore within the scope of this litigation) to be the property of Le'oso.

In the case of the Taeleifi survey there is convincing evidence not only of historic ownership but also of more recent and more intensive occupation than in the case of the Iuli tract. We also have direct evidence of the eastern extent of the Taeleifi land: Taeleifi testified that until the recent hurricane there was a Taeleifi house on the slope near the southeastern most boundary of the II Lalolelata " survey. Although Pio Sagote also has plantings within this survey, they are insufficient to acquire ownership by adverse possession. Accordingly, we find that Taeleifi is the owner of the land within the Taeleifi survey of "Lalolelata," insofar as it is also no further north than the northern boundary of the Fai'ivae survey. (Parts of the Taeleifi claim that are north of this line are disputed with the Willis/Va plaintiffs and with To'omata. We discuss these disputes in Part IV, infra.)

IV. Boundaries Within the Inland Half of Lega 'oa and the Surrounding Slopes

Property rights within the inland portion of Lega'oa are somewhat less difficult to analyze than those in the seaward portion. The starting point is the holding of the 1906 and 1918 decisions: that the inland half of the flat land belonged to Tuitele To'omataTali, and Amelia Va as tenants in common. Other parties claiming land in this area would have to prove either that their lands were subject to freehold grants from the former Land Commission or that they had acquired title [17ASR2d57] by adverse possession since 1906. The slopes surrounding the flat land belong to whoever owned them before 1906 or to whoever has acquired them since by original occupation or adverse possession.

A. Willis/To'omata/Taeleifi Col!flict

The major conflict with respect to the inland portion of the flat land has to do with the boundaries in the southern and eastern section. The contestants in this area are the Willis/Va plaintiffs, To'omata, and Taeleifi. (As previously noted, Le'oso also claims some of the land within the Taeleifi survey of "Lalolelata. " For the reasons already stated, we reject this claim.) The dispute among these parties partakes partly of a boundary dispute---with Taeleifi placing the boundary of the seaward portion of Lega'oa somewhat further to the North than other parties have placed it---and partly of a dispute over original occupancy or adverse possession. Willis claims his relatives have long occupied not only the flat land awarded to them in 1906 but also the surrounding slopes that were excluded from the decision. Taeleifi claims his people have long occupied the section of the flat land that is within the Taeleifi survey of "Lalolelata," even if it is above the inland/seaward boundary mandated by the 1906 decision.

The situation is complicated by the fact that the To'omata, Willis/Va, and Taeleifi families are all related to each other. Each party can therefore plausibly explain the presence of the others on "his" land by reference to family relationship. For instance, during the 1970s there seems to have been an agreement among the Fai'ivaeTaeleifiTo'omata, and Willis/Va families that a certain hibiscus hedge would be the northern boundary of land occupied by Pepa TaeleifiTaeleifi seems to regard this either as a recognition that this was always the boundary or a gift of title to the land. To'omata and Willis, however, regard the agreement as a license for Pepa to live on To'ornata/Va land; they point to the fact that Pepa was a first cousin of So'oto, the Va heir who agreed that Pepa should be allowed to live in the area south of the hibiscus hedge.

Similarly, So'oto appeared in this litigation as a Va heir, and appears to have been the principal Va representative in this area before Tony Willis returned to the Territory in the late 1970s. So'oto lives in a house on the slopes overlooking the inland portion of the flat land, and the Willis/Va plaintiffs rely on this as important evidence of occupation of these slopes by Va people. Taeleifi, however, points out that So'oto is a member of theTaeleifi family and that "So'oto" is a matai title [17ASR2d58] closely connected to that family. Taeleifi contends that the father and mother of the present So'oto began living in this area, long reputed to be a part of Taeleifiland called "Tiafau," because of the connection of his father So'oto Saka to the Taeleifi family. But So'oto says the important connection was through his mother, a Va heir.

We find as follows: first, the boundary between the seaward and inland portions of this land is an eastward extension of the line that marks the northern border of the Fai'ivae tract. The boundary between Taeleifi and "Tuitele" (i.e., To'omata) is so marked on the 1915 Fai'ivae map; this boundary is still recognized by To'omata and Fai'ivae as their boundary and by To'omata and the Le'alaialoa\Avegalio\Aigamaua family further to the west; and it comes quite close to achieving a mathematically precise division of Lega'oa into two equal portions, as ordered by the 1906 court. Taeleifi's argument that the boundary is further north, and To'omata'scontention that it jogs to the south in this area, seem principally designed to bolster their arguments about who gave permission to whom.

We further find that no party has acquired land by adverse possession in this area. Even if So'oto was acting at all times as a Va heir and not as a member of the Taeleifi family, he could not have possessed land adversely to a family of which he was a member. Similarly, the parties to the hibiscus-hedge incident mayor may not have reflected on whether they were giving a license, giving away land, or recognizing a pre-existing property right; had they so reflected, the various parties might well have had different understandings about what was going on. If, however, the land was To'omata/Va land to begin with, then the Taeleifi family cannot hold theTo'omata/Va heirs to any agreement by which a Taeleifi family member gave away To'omata/Va property to his own first cousin. (The cousin might well prove, however, that in building his house in this area he reasonably relied on a license given by the Va heir who seemed to be in charge at the time.)

Applying these findings to the claims of the parties, we find that Taeleifi is the owner of the land on the slopes within his survey of "Lalolelata" (i.e., east of the Willis/Va retrace of the "flat land ") and to the north of the inland/seaward boundary (as defined by an eastward extension of the Fa'ivae/To'omata/Le'alaialoa boundary to the west). Taeleifi is also the owner of his survey of "Tiafau," which is on the northeastern slopes and which is regarded by all non-Va neighbors as Taeleifi property. The flat land within the Taeleifi survey of "Lalolelata[17ASR2d59] (i.e., inside plaintiffs' retrace), and north of the inland/seaward boundary as defined above, belongs to the heirs of To'omataTali, and Va.

B. Willis/To'omata/Iuli Conflict

Iuli has submitted a survey of land in the northeastern portion of the inland area, just south of the Taeleifi land called Tiafau. This Iuli survey is partly on the slopes and partly on the flat land. Iuli witnesses testified that they have long occupied the whole tract. There is strong evidence to the effect that a Iuli family member, Willie Ah Kuoi (Kuoy), had one of the first houses in this area, on the sloping portion of the present Iuli survey; that members of his immediate family have lived in the area for thirty years or so; and that other Iuli people may have occupied at least some of this land even earlier.

The Iuli people believe that they were "given" their land by Tuitele long ago. It appears that Iuli may have been one of the persons to whom Tuitele To'omata sold land prior to 1918, giving rise to the Court's holding inFalesau v. Tuitele, 1 A.S.R. 298 (1918), that he was only a co-tenant and was not entitled to sell land within Lega'oa. This holding would not, however, have applied to land outside the "flat land" which was the Court's definition of Lega'oa. As it happens, the evidence of historic Iuli occupation is far stronger on the slopes than within the flat land. The only Iuli houses built before 1980 were on the slopes; the two small houses on the flat land appear to have been built during the pendency of the present litigation. A member of the Ah Kuoi family testified that his family has had crops in the flat land, but there is also strong evidence that So'oto and perhaps other Va people have had crops in this area. The burden would be on Iuli to prove at least twenty years (beginning in or before 1962) of uninterrupted and exclusive possession of the flat land in order to acquire any of it. This he has not done. Accordingly, we conclude that Iuli owns the portion of his survey that is on the slopes but that the portion within the flat land (again, defined by plaintiffs' retrace) belongs to the heirs of To'omataTali, and Va.

C. Willis/To'omata/Sekio Conflict

The Heirs of Sekio Avegalio also claim land within the eastern portion of this area. They rely on a freehold grant from the Land Commission for lands called "Lefuafua and Legoa." The Willis/Va plaintiffs acknowledge the validity of this grant but contend that the land is not within Lega'oa and must be somewhere else. We conclude, [17ASR2d60] however, that the grant is within Lega'oa and that the resurvey submitted by the Heirs of Sekiois the best evidence of its exact location.

The physical description of the land in the freehold grant, although varying in some respects from the current appearance of this land, is strikingly similar in other respects. There is a steep hill just where the survey says "hill." A small stream crosses the road exactly where it ought to. Disinterested witnesses testified that there used to be a swamp about where the survey indicates a swamp should be. The absence of another stream listed on the survey may be explicable by reference to some bulldozing done by So'oto during the mid-1970s, which is said to have changed the course of the main stream in this area. (This bulldozing, which appears to have involved a major portion of Lega'oa, figured heavily in several parties' evidence. To So'oto it was evidence of his suzerainty over the area. A Iuli witness was angry because he said he had paid for the bulldozer to level some land for his house and that So'oto---who, it develops, is or was employed as a bulldozer operator for the Government---was doing his own bulldozing on Iuli time. A witness for the Taeleifi family, however, testified that she was the one who paid for the bulldozer. The bulldozing led to a lawsuit with the Heirs of Sekio and perhaps to another with To'omata.)

Failautusi Avegalio, the principal witness for the Heirs of Sekio, appeared to be somewhat confused about this land. He insisted, for instance, that the Marine rifle range had passed directly over the land, whereas the great weight of the evidence shows that it did not. Despite the doubts raised by this testimony, however, we find that the Sekio people have made at least such use of their land over the years as would prevent its acquisition by adverse possession. Almost all the neighboring land occupants testified that they had seen Sekio Avegalio people on the land at various times. Most recently, the 1975 lawsuit (Avegalio v. So'oto, LT No.1526-75) in which a permanent injunction was issued against further encroachment on this land by So'oto, tends to locate the land as part of that bulldozed by So'oto and also to indicate that the heirs of Sekio were still taking an active interest in the land. The result in the bulldozing injunction case may not preclude relitigation of title in the present case; it was a judgment by default after So'oto failed to appear, and in any case might not bind So'oto'scotenants. At the very least, however, the injunction is sufficient to interrupt any acquisitive prescription by So'oto on behalf of himself and his cotenants. That the suit was brought at all, moreover, bolsters the other evidence that this is the location of the Sekio grant and that the Heirs of Sekio were making [17ASR2d61] some use of it. We also note that Lefuafua was identified several times in the pleadings and testimony of the 1906 case as land within Lega'oa.

We conclude that the location of the freehold grant to "Lefuafua and Legoa" belonging to the Heirs of Sekio Avegalio is where it appears on Exhibit 1 (marked "Se") and Exhibit 23 (marked "Failautusi.")

D. Willis/Tuiteleleapaga/Avegalio Conflict

The remaining substantial conflict in this area has to do with the northern slopes. Tuiteleleapaga has submitted a survey of land the family calls "Tiafau.” It is entirely within the mountainous area and just to the north of theTaeleifi survey of the same name. Avegalio has submitted a survey of land just to the west of the Tuiteleleapaga survey. This land is also primarily in the mountainous area, although the southern portion of it is within plaintiffs' retrace of the "flat land" and appears to the Court to be reasonably flat. The Willis/Va plaintiffs claim this entire area (as, indeed, they also claim the eastern and western slopes) by reason of original occupation and/or adverse possession. Tony Willis testified that his relatives have long occupied this area.

We believe this land to be the traditional communal land of the Tuiteleleapaga and Avegalio families. We note the 1906 testimony of Fai'ivae Alfred Hunkin, apparently a disinterested witness with respect to this section of the land, that the northern border of Lega'oa is "with land named Tiafau over which Taeleifi Avegalio and Tuiteleleapaga had the pule." (1906 transcript, as translated by the Court interpreter for the 1988 trial, at p. 9.) These are the same three families who claim the land today. Moreover, we heard extensive testimony at the recent hearing with respect to Tuiteleleapaga and Avegalio activities on their respective claims in this area during the middle part of this century. (Such activities, which consisted mainly or exclusively of plantings, appear to have diminished after the 1966 hurricane.)

In the mid-1970s Tony Willis returned after many years in the United States and began to assert his authority in this area. This quickly led to two lawsuits; one against the Tuiteleleapaga people, in about 1976, of which we have no specific details and which Mr. Willis says "just vanished" during the 1970s, and another against the individual heirs of Ese'ese Avegalio, one of the Avegalio people who had been working in this area.[17ASR2d62]

The latter case went to trial. It concerned the land in the immediate vicinity of the area where Tony Willis was then building his house. Willis contended that this land was part of Lega'oa and as such had been deeded to his grandmother, Amelia Va, and held to be her property in the 1906 case. The Court rejected this contention, finding that: (1) the land was not "flat" and therefore was not part of Lega'oa within the meaning of the 1906 case; (2) at least some parts of the land had been cleared and cultivated by Ese'ese Avegalio during the 1940s, 1950s, and 1960s; (3) after the 1966 hurricane destroyed his crops, Ese'ese had abandoned the land, although some other people continued to plant a few crops there with his permission; (4) some of the crops that had been planted with the permission of Ese'ese were destroyed by Willis when he began building his house in the late 1970s. The Court concluded that the land was not part of the Va land called Lega'oa, but was not the property of the heirs of Ese'ese because he had "abandoned" it and therefore could not lay claim to individual ownership. The latter holding had to do with certain distinctions made by the Court between the nature of individual and communal ownership of land in Samoa. Leuma v. Willis, 1 A.S.R.2d 48 (1980).

We conclude that the land within the Tuiteleleapaga survey of Tiafau is communal land of the Tuiteleleapaga family. We also conclude that the land within the Avegalio survey, with the exception of that below the 75-foot contour line, is the communal property of the Avegalio family. Mr. Willis is estopped to deny that the land is not flat, that it is not part of Lega'oa, that it was cultivated by Ese'ese Avegalio, and that he destroyed crops planted with the permission of Ese'ese when he laid the foundation for his present house. The testimony at the recent hearing convinces us that the activities by Ese'ese and other members of the Avegalio family on this land were pursuant to the traditional status of this land as Avegalio communal land.

We conclude that the portion of the Avegalio survey below the 75-foot contour land, which includes another Willis house, is "flat land" belonging to the heirs of To'omataTali, and Va. (The 75-foot contour line is slightly below plaintiffs' retrace of the fiat land. This adjustment is necessary to conform to the Court's holding in Leuma---which appeared to involve the area around the inland Willis house, but to make no finding with respect to the land around the seaward house---and to our observation of the land in this area.) [17ASR2d63]

E. Willis/Lealaialoa/Olo/Avegalio/Su'a Conflicts

There is also a slight conflict between the Willis/Va plaintiffs and several other parties with respect to the western boundary of Lega'oa. The Willis retrace draws the line at approximately the fifty-foot contour line; the other parties draw a slightly different line at a stream that meanders along the lower part of the western slope, between the 25- foot and 75-foot contour lines.

This is one of those instances in which mathematical boundaries appear to have given way to natural ones. The difference between the boundary depicted in plaintiffs' retrace and that afforded by the stream is a narrow strip which in most places is no more than 20 to 30 feet wide. Despite some contrary testimony by Va witnesses Willis and So'oto, we are convinced that the Va/To'omata neighbors to the west have long occupied the land up to the stream. To'omata, the co-tenant of the Willis/Va plaintiffs, recognizes the stream as his western boundary. Moreover, the boundary appears to have been a traditional one: Fai'ivae testified in 1906 that the western boundary of Lega'oa is "the contributory of the large stream." (1906 transcript at p. 9.) This appears to be the same stream recognized today by all parties but the Willis/Va plaintiffs. Moreover, the only convincing evidence of any occupation of this strip by Va people concerns a brief incursion by So'oto during the rogue-bulldozer episode in 1975. Olo testified that he confronted So'oto, who then asked his permission to plant crops on the land. Olo said So'oto could plant taros (an annual crop) but not bananas or coconuts (which might be later construed as evidence of ownership). The crops and structures presently on this land all belong to the western landowners. We conclude that the western boundary of the land belonging to the heirs of To'omataTali, and Va is the stream near the bottom of the western slopes.

It appears from the To'omata survey (Drawing No. 54-15-90, not marked as an exhibit but admitted without objection and incorporated into Exhibits 1 and 23) that the Le'alaialoa/Avegalio/Aigamaua survey of "Leui" to the south may include a small area on the east side of the stream. Because this land is part of the inland half of Lega'oa, and because little or no evidence was presented to support a finding of adverse possession byLe'alaialoa et al., we find that this land is the property of the heirs of To'omataTali, and Va. We hold that the remaining land within the northwestern surveys of Le'alaialoa et al., OloAvegalio, and Su'a, insofar as they are also within the survey offered for [17ASR2d64] registration in LT No.45-82, to be the property of the respective claimants.

F. Willis/Va Claims on Northeast Slope

We find that two areas outside plaintiffs' retrace of the flat land do belong to plaintiffs and their cotenants. The northernmost of these areas is just to the east of the northernmost area of the flat land. It is bounded by theAvegalio survey on the north, the Tuiteleleapaga survey of "Tiafau" on the east, and the plaintiffs' retrace of the flat land on the west. This area is in the vicinity of the southernmost Willis house. In the absence of strong evidence of prior occupation by any party, this proximity and Willis's general testimony of his family's occupation of all the slopes is the best evidence of ownership.

The second area is just to the south of the first. It is a gently sloping area bounded on the east by the Taeleifi survey of "Tiafau, " on the south by the Iuli survey, and on the west by plaintiffs' retrace of the flat land. So'ototestified that he and his family have long had crops in this area, and that the crops were under the authority of his mother, a Va heir. In the absence of a strong claim by any other party---in particular, we note that the area is outside the Taeleifi survey that includes the present house of So'oto---we accept this testimony as the best evidence of ownership.

These two areas are held to be the property of the heirs of To'omataTali, and Va.

V. Conclusion

The inward half of the "flat land" of Lega'oa is the property of the heirs of To'omataTali, and Va as tenants in common. This land is defined as that land which is within the following boundaries: (1) on the south, a line defined by the northern boundary of the Le'alaialoa and Fai'ivae surveys and by an eastward extension of this boundary through the Taeleifi survey of "Lalolelata"; (2) on the east, the easternmost boundary of the Willis/Vaplaintiffs' 1990 retrace of the flat land within Lega'oa; (3) on the north, the 75-foot contour line from its eastern intersection with plaintiffs' retrace of the flat land to its western intersection with a stream near the western boundary of the Avegalio survey; (4) on the west, the stream that forms the eastern boundary of the Su'aAvegalio, and Olo surveys. [17ASR2d65]

The heirs of To'omataTali, and Va are also the owners of two parcels just to the east of the above-described flat lands, on the northeastern slopes above Lega'oa, as more fully described in Part IV(F) of this opinion.

The families of Leone who have made claims within the seaward portion of Lega'oa are the respective owners of the parcels described in Part III of this opinion.

Certain families of Leone are also the owners of land along the slopes surrounding the inland portion of Lega'oa, as further described in Part IV of this opinion.

The Diocese of Samoa-Pago Pago is the owner of the tract described in Part III of this opinion and illustrated by the Court on Exhibit 21.

The Estate of Edward Ripley and the heirs of Mrs. Thomas Meredith are the owners of the land within their respective surveys, as further described in Parts III(E) and III(F), respectively.

The heirs of Sekio Avegalio are the owners of a freehold parcel within the seaward part of Lega'oa, as further described in Parts III(A) and III(D) of this opinion, and of another freehold tract within the inland part ofLega'oa, as further described in Part IV(C) of this opinion.

We express no opinion on the ownership of any land other than that described above. We also express no opinion on the ownership of any land which is both outside the survey that was offered for registration in LT 45-82 (one of the cases consolidated herein) and outside the plaintiffs' 1990 retrace of the flat land of Lega'oa.

We express no opinion on the validity of a mortgage alleged by plaintiff Levi, who seems to have dropped out of the case after the first hearing.

Finally, we note that none of the lawsuits giving rise to these consolidated cases was an action for eviction. Several people have houses on land which has been held to belong to other people. Some of these people appear to be licensees of the true owners; others may be entitled, if eviction is sought, to compensation for improvements made in good faith. We have every expectation that such issues can be resolved by negotiation rather than by further litigation. [17ASR2d66]

Judgment will issue in accordance with these findings and conclusions. It is so Ordered.

********

1. A.S.C.A. § 37.0120, the adverse possession statute, was amended in 1962 to change the prescriptive period from twenty years to thirty years. Land could be acquired by twenty years of actual, open, notorious, hostile, exclusive, and continuous occupancy provided that such occupancy began in 1962 or earlier. Occupancy beginning later than the effective date of the 1962 amendment---or which, at any time since 1962, has been interrupted or has not been exclusive---cannot yet have resulted in acquisition of title by adverse possession, because thirty years have not yet passed since 1962. Thus the only parties to the present litigation who have acquired land by adverse possession are those whose possession began in 1962 or earlier and has been exclusive, hostile, etc., since that time.

Prior to the 1966 hurricane, Lega'oa was used almost exclusively for plantations and contained few residential houses. Nor do the plantations appear to have been the sort that would have necessitated clear-cutting of forest trees; although a number of old coconut trees are still in existence, most of the plantations seem to have been bananas and taros interspersed among the pre-existing features of the landscape, as is still fairly common. It should also be noted that for several years during World War II the Marines maintained a rifle range in Lega'oa and the whole area seems to have been vacated. Subject to these constraints on the type of "occupancy" that prevailed until recently in Lega'oa, all parties to the present litigation were shown to have made some use of their own land in the years between 1906 and 1962. Although such use was in some cases intermittent, no party abandoned its land for the applicable prescriptive period (twenty years beginning in or before 1962, or thirty years thereafter). Any occupation by other parties was therefore not "exclusive." The only exceptions, in which adverse possession claims have been proved, have to do with minor boundary disputes in which one party presented the best evidence of what the boundary was circa 1906, but another party persuaded the Court that a slightly different and more "natural" or "obvious" boundary---e.g., a straight line or a stream---had been recognized by all parties over the years.

Fagasoaia v. Fanene,


VALU FAGASOAIA and MAINA ATAFUA for themselves and
on behalf of the FAGASOIA FAMILY of Nu'uli, Plaintiffs

v.

TUITOGAMAATOE FANENE, SIUFAGA FANENE,
TUMEMA KIM, DONG IK KIM, PUAO SIONE,
TEVESI SIONE, and PUAILOA TAVETE, Defendants

High Court of American Samoa

Land and Titles Division

LT No. 34-90

November 15, 1990

__________

No lease existed when the people who signed documents purporting to create various contract and/or property rights in some buildings had no authority to do so.

During the vacancy of the family's matai title, no one family member or faction has the power to effect a radical transformation of the family's property without a clear consensus of the entire family. [17ASR2d92]

Before REES, Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Plaintiffs, Asaua Fuimaono

  For Defendants, Charles V. Ala'ilima

This case arose from a dispute among members of a family (and an unrelated storekeeper allied with one of the two factions within the family) over use of family land.

The land in question is a fairly small tract on both sides of the main road in Nu'uli, in an area that has seen intense commercial development within the last ten years. It is undisputed that the land, called "Papa," belongs to the Fagasoaia family. All parties are related to the family by blood or marriage except Tumema Kim and Dong Ik Kim.

The primary occupant of the land on one side of the road, until the events giving rise to this action, was plaintiff Valu Fagasoaia. At a much earlier time the land was occupied by Valu's parents and siblings, including defendant Puailoa, but Valu was for many years the only occupant. In 1978 defendant Tuitogamaatoe Fanene (hereinafter "Tu'i") came to Valu, her uncle, to ask permission to build a residential house on part of the land in the area he had been occupying. He gave his permission. Tu'i then secured a Separation Agreement allowing the construction of this dwelling and providing that the dwelling itself would be her personal property although the land would continue to belong to the Fagasoaia family.(1)

Although Tu'i testified that she had originally intended the house she built pursuant to the 1978 separation agreement to be a dwelling and that she and her husband occasionally slept there at first, although they had another house nearby, it is clear that almost from the beginning this house was used for business purposes. The first tenants, during the early 1980s, were some air conditioning repairmen. In 1985 the house was [17ASR2d93] leased to defendant Dong Ik Kim for $250 per month. Although the lease did not specify for what purposes the house was to be used, provisions allowing the lessee to build an "extension" clearly contemplated the present commercial use. In 1986 a new agreement was signed between Tu'i and the Kims; the gist of this document was that in respect of some $27,727 spent by the Kirns for building an extension, they would pay no rent at all until July 1990 and would thereafter pay $550 per month through 1996.

Neither of these leases---nor the transformation of the dwelling house into a much larger store building with a parking lot, all on Fagasoaia land---was made with permission of Fagasoaia. Nor was Valu, who still lived on the land and still regarded himself as being somehow "in charge," especially happy about the changes. When he saw some old coconut trees being cut down for the parking lot, he confronted the workmen and told them to stop. They did so, but returned to complete the task on the instructions of Siufaga Fanene, husband of Tu'i. At one point Valu seems to have taken the law into his own hands by throwing rocks at the store windows. Tu'i then arranged for her tenant Kim to pay Valu a small periodic stipend; she testified that this was an act of pure love on her part, but pragmatic considerations may also have figured in the decision. In 1989 Tu'i ordered the stipend stopped. Tu'i says love was again her only motive, as she did not wish to fuel her uncle's drinking problem. It also appears, however, that at about this time Uncle Valu had been consorting with plaintiff Maina, a person from another branch of the Fagasoaia family who had recently returned from off-island and had been expressing curiosity about the commercial complex that had gone up on family land.

Meanwhile, the principal occupants on the other side of the road had been the immediate family of defendant Puao Sione. It is undisputed that these people built dwelling houses on this part of the land at various times during the 1960s and 1970s, always with the permission of the senior matai Fagasoaia. In 1989, apparently through the good offices of Tu'i, Puao and her husband leased an existing dwelling house on their side of the road to Mr. Kim for ten years. The rent was to be $700 per month for the first five years and $900 per month thereafter. At about this time Mr. Kim also began building an "extension" to this dwelling house, in the form of a warehouse about three times as large as the dwelling itself. According to the testimony of defendants Kim and Puao, the arrangement is that Mr. Kim will be able to deduct the entire cost of building the warehouse from his $700 monthly rent until such time as he has been compensated for all his expenses. This will take about ten [17ASR2d94] years, the entire term of the lease. Mr. Kim will then have the option to renew the lease---of the warehouse as well as the dwelling---for an additional ten years, apparently at the rate of $900 per month.

In 1989 and 1990 at least three other buildings have been built or started on this land. These include a generator building behind the store on the Tu'i/Valu side of the road, a new dwelling house on the Puao side of the road under the auspices of Puao's husband, and a dwelling on the Valu side of the road under the auspices of Valu. On documents appertaining to some of the more recent construction, defendant T .M. Puailoa, the brother of Valu and father of Tu'i, has begun signing his name as "landowner."

Fagasoaia Leasialagi (Lio), the sa'o of the family, died in or around 1987. He was still alive at the time Mr. Kim added the extension to the Tu'i house and began operating his store there, but had died by the time arrangements were made for the warehouse on the Puao side of the road. The family has recently selected a new sa'o, who will be installed in a few months after the prerequisite formalities have been completed.

We conclude that the only thing defendant Dong Ik Kim has leased from Tu'i for $550 per month is the right to use her original dwelling house. Similarly, the $700 lease covers the dwelling house of Puao. (These rental prices do not differ markedly from prices for similar structures in this area.)

The parking lot, the generator building, and the two "extensions" (the storefront area and the warehouse), as well as the property on which they were built, are the property of the Fagasoaia family. No lease exists with respect to any of these properties. The people who signed documents purporting to create various contract and/or property rights in these buildings had no authority to do so. This was especially true prior to the death of Fagasoaia, who had sole authority to authorize such construction and whose permission was not asked. Thereafter, during the vacancy of the family's matai title, no one family member or faction had the power to effect a radical transformation of family property without a clear consensus of the entire family.

The new Fagasoaia will be the person with whom Kim should negotiate should he wish to continue as lessee of the family properties. Pending any agreement between Fagasoaia and Kim, we take judicial notice of such negotiated commercial rents as have come to the Court's attention in other recent cases in order to fashion the relief to which the [17ASR2d95] family appears entitled in exchange for defendant Kim's continued use and occupation of its property. We estimate the rental value of the store, generator building, and parking lot to be $1000 per month, over and above the $550 per month payable to Tu'i for her original dwelling house. We estimate the rental value of the warehouse space to be $1500 per month, apart from rental on the attached dwelling house of Puao.

Because Kim has already been fully compensated for the cost of building the store by his retention of the rent over several years, he should pay the family $1000 per month (in addition to the $550 he pays Tu'i) should he wish to retain possession of the store pending the installation of the new Fagasoaia. Because he has not yet been fully compensated for his expenses in building the warehouse---and because it would be unfair to Puao to withhold such expenses from future rentals of her dwelling house insofar as she is not the owner of the warehouse and will not receive rentals from it after Mr. Kim has deducted his expenses---he may deduct $500 per month from the $1500 monthly warehouse rental until such time as his expenses have been fully compensated. This credit for expenses is in lieu of the present deduction of $700 per month against rentals due on the dwelling house of Puao, and will be allowed on the condition that defendant Kim submit within ten days a full accounting of such expenses. The family will be allowed an $18,000 offset against the total amount of such credits to compensate it for the rental value of the warehouse during the year it has already been in use.

The $2000 monthly rent for the family properties for the current month is due immediately, and for succeeding months will be due on the first day of each month.

$200 of this monthly amount is payable directly to plaintiff Valu as compensation for the use of land formerly occupied by him. Although any right Valu had to make decisions about this land is and always has been subject to the ultimate authority of the sa'o, of all the family members in this case he appears to have been the most inconvenienced and the least compensated. Pending a comprehensive decision about the long-term use of this land by the new sa'o, which would presumably include some compensation to displaced family members, Valu has the same right as Puao (and a better right than Tu'i) to a share in the income from this land.

The remaining $1800 per month should be placed in a trust account in the name of the family, from which no withdrawals should be [17ASR2d96] made without Court approval, pending the installation of the new Fagasoaia. Pending the submission by counsel and approval by the Court of documents establishing such a trust, the funds may be deposited in the registry of the Court.

All parties will be permanently enjoined from authorizing further construction on this land, except that Valu may complete the single small residential dwelling which he had already begun to construct at the time of trial.

It is so Ordered.

********

1. The signature on this Separation Agreement is "Fagasoaia Lio"; plaintiffs have introduced signatures of the then senior matai of the Fagasoaia family to show that he usually signed his name "Fagasoaia I. Leasialagi" and in a somewhat different hand from the one on this document. We need not decide whether the signature on the 1978 separation agreement was or was not that of the then Fagasoaia, because no issue presently before us depends on such a determination.

Beaver Family Trust; In re


In re BEAVER FAMILY TRUST

by

W. SCOTT BARRETT and WILLIAM H. CRAVENS,
Trustees

High Court of American Samoa
Trial Division

PR No. 19-90

October 19, 1990

__________

Where trustees filed a pleading styled as a petition to a nonexistent "probate division" of the High Court for advice and instructions, the Court denied a motion to dismiss for failure to state a claim by the surviving settlor of the trust, since the trustees did not merely seek an advisory opinion but stated a claim for declaratory relief. A.S.C.A. §§ 43.1101 et seq.

Before KRUSE, Chief Justice, AFUOLA, Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Trustees, John L. Ward II

  For Lefaga Beaver, Charles v. Ala'ilima

On Motion to Dismiss:

The above-named trustees have filed a pleading styled "Petition for Advice and Instructions," and they have addressed their petition to the "Probate Division"(1) of the High Court of American Samoa. The surviving settlor of the referenced family trust, Mrs. Lefaga Beaver, has entered an appearance(2) by filing a Trial Court Rules of Civil Procedure, [17ASR2d10] Rule 12(b)(6) motion to dismiss the trustees' petition for failure to state a claim for which relief may be granted. Mrs. Beaver contends that the trustees are seeking an advisory opinion from the Court as to their duties and that there is no case or controversy presented.

We disagree. In the light of the requirements of Trial Court Rules of Civil Procedure, Rule 8 (a)(I), we conclude that the complaint sufficiently states a claim for declaratory relief pursuant to A.S.C.A. §§ 43.1101 et seq., notwithstanding the odd characterization of the Complaint as a petition to the probate division for instructions. The motion to dismiss is denied.

It is so Ordered.

********

1. The High Court of American Samoa consists of an appellate division, a trial division, and a land and titles division. A.S.C.A. § 3.0207(a). Once upon a time, the High Court did have a separate "probate" division. See 5 A.S.C. §§ 408. This enactment, however, was amended in 1979 by Public Law 16-28, §13, which deleted reference to "probate division." The petitioners' insistence, nonetheless, in addressing their petition to a non-existent probate division of the High Court, is puzzling.

2. The file does not reveal whether any summonses have been issued and served upon all parties interested in the trust, as required by Trial Court Rule of Civil Procedure.

Beaver v. Cravens,


LEFAGA BEAVER, Plaintiff

v.

WILLIAM CRAVENS, SCOTT BARRETT,
SOUTH PACIFIC TRADERS, INC., DOES I-XX, Defendants

High Court of American Samoa
Trial Division

CA No.72-90

October 19, 1990

__________

In ruling upon a motion to dismiss for failure to state a claim, the complaint must be liberally construed and viewed in the light most favorable to the plaintiff.

Court denied a motion to dismiss for failure to state a claim which relied on plaintiffs failure to specially plead the elements needed for a shareholder's derivative action, since the pleaded causes of action were personal, not derivative, and plaintiff was seeking redress for herself from the corporation rather than suing on its behalf. T.C.R.C.P. §§ 12(b)(6), 23.1.

Court denied a motion to dismiss by defendants/trustees which argued that plaintiff was estopped from alleging breach of such trust by a trust provision requiring that disputes [17ASR2d7] regarding interpretation be referred to the probate court for instructions, since such a piecemeal and novel approach to defining and sorting out the issues between litigants was meritless and unfounded.

Before KRUSE, Chief Justice, AFUOLA, Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, Charles v. Ala'ilima

  For Defendants, John L. Ward II

On Motion to Dismiss:

Plaintiff has filed suit alleging a breach of a family trust by the defendant trustees. The trust was settled by plaintiff and her late husband. The defendants move to dismiss plaintiffs complaint, without prejudice, for failure to state a claim for which relief may be granted, and/or alternatively direct the parties to proceed with defendants' petition filed in "Probate Court" which has been docketed as In Re Beaver Family Trust, PR NO.19-90.

That aspect of the motion based on Trial Court Rules of Civil Procedure, Rule 12(b)(6), rests on the argument that plaintiff is essentially bringing a shareholder's derivative action and that her complaint has failed to comply with the special pleading requirements of Trial Court Rules of Civil Procedure, Rule 23.1.

Alternatively, dismissal is sought on the contention that plaintiff is estopped from filing an action, as she has done so here, because of a provision in the trust instrument which provides for the referral of any dispute regarding interpretation of the trust to the "Probate Court for instructions." Further, the defendants urge that it would be more economical and expedient to submit the singular issue ---whether plaintiff has anything more in the trust than a beneficial interest--- to the Probate Court for determination rather than exposing the trust to a far- ranging trial necessarily proposed by plaintiffs lawsuit. In other words, the defendants suggests that plaintiffs lawsuit should be suspended on a wait-and-see basis pending the Court's prior determination of defendants' "Petition [to the Probate Court] for Advice and Instructions." The thinking appears to be that the Probate Court's determination of the above-stated issue would also be dispositive of any and all remaining disputes between the parties. [17ASR2d8]

Discussion

In determining a motion to dismiss for failure to state a claim, the complaint is to be liberally construed and viewed in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232 (1974). At this stage with the pleadings, we cannot agree with the defendants' characterization of plaintiffs suit as being a shareholder's derivative action. The causes alleged in the complaint are hardly derivative but personal, and Trial Court Rules of Civil Procedure Rule 23.1 applies only where the action is a derivative action by a shareholder suing on behalf of the legal entity which is a corporation. 3B J. Moore & J . Kennedy, Moore's Federal Practice' 23.1.16 (2nd Ed. 1985). The rule is not applicable to the situation where plaintiff is asserting a private injury for which personal redress is being sought. See Simcox v. San Juan Shipyard, Inc., 754 F.2d 430 (lst Cir. 1985). Plaintiff is here suing for herself. She is not seeking redress on behalf of the corporation; indeed, she is attempting to seek redress from the corporation by way of a claim for shares and insurance proceeds.

As to the alternative grounds for the motion to dismiss, we are not persuaded by the estoppel argument advanced by defendants as somehow establishing a contingent bar to, or an immunity from, suit. As noted above, the bottom line of the motion looks very much like a request to postpone plaintiffs lawsuit until the Court first rules on the defendants' legal theories concerning the parties' differences. This novel and piecemeal approach to sorting out and defining the issues between litigants is without merit or foundation.

For reasons given, the motion is denied. It is so Ordered.

********

Barber; Puailoa v.


TEPATASI PUAILOA, Plaintiff

v.

KENNISON BARBER, Defendant

High Court of American Samoa
Trial Division

CA No.11-89

October 26, 1990

__________

Defendant acted negligently where he failed to reasonably anticipate oncoming traffic approaching a blind curve and slow his speed accordingly, but instead drove so fast around the curve that he drifted into the oncoming lane and hit a vehicle there. [17ASR2d22]

Testimony of a third-party that plaintiff was in the wrong lane was suspect where both the driver of the struck vehicle and plaintiff testified that defendant was in the wrong lane, the third-party would have had to tailgate defendant to clearly see the accident (yet he avoided the collision), bystanders testified that the third-party arrived after the accident, and defendant knew the third-party and yet did not have him testify in earlier traffic court and civil actions concerning the same incident.

Before KRUSE, Chief Justice, VAIVAO, Associate Judge, and MATA'UTIA, Associate Judge,

Counsel: For Plaintiff, Charles V. Ala'ilima

  For Defendant, Togiola T.A. Tulafono

Findings of Fact and Conclusions of Law:

Plaintiff, Tepatasi Puailoa, was involved in a front-end automobile collision when a vehicle in which he was a riding collided with a vehicle which was driven by the defendant, Kennison Barber. Plaintiff sues in damages for personal injuries alleging negligence on the part of the defendant.

Owing to some difficulties with conflicting schedules and the availability of medical witnesses, the parties jointly moved at the outset for trial of the liability issue separate from and prior to trial of the damages question. We allowed the request and bifurcated trial.

Findings

On the testimony and the evidence presented, the Court makes the following findings of fact on the issue of liability.

1) On or about October 8, 1988, plaintiff was riding in a Suzuki jeep which collided with a Toyotapickup truck that was being driven by the defendant. The collision occurred on the main east-west highway, in the vicinity of Mapusagafou.

2) Prior to the collision, the defendant was heading east; as he passed the Mormon stake center in Mapusagafou, he encountered a curve in the road without adjusting his speed accordingly. As he rounded the curve, which drops suddenly to a downgrade, the defendant drove his vehicle past the center-line and onto the lane for oncoming traffic, whereupon he suddenly found himself encountering a vehicle approaching [17ASR2d23] the curve from the opposite direction. This approaching vehicle was carrying plaintiff, who was riding at the time in the front passenger seat to the right of the driver.

3) Notwithstanding desperate attempts by both drivers to avoid one another, the vehicles collided, coming together forcefully. The vehicle in which plaintiff was riding was flipped onto its side, while the pickup truck which defendant had driven was apparently written off subsequently by an insurance adjuster. See Atualevao v. Barber, CA No. 7-89 (1990).

[17ASR2d24] 4) Plaintiff suffered personal injuries in the collision and was subsequently transported to the hospital at Faga'alu by a third-party(1) who had come upon the scene shortly thereafter .

Conclusions

On the evidence, we conclude that the defendant, Kennison Barber, had operated his vehicle in violation of A.S.C.A. § 22.0701; that is, he drove his vehicle in a careless and imprudent manner without due regard to the attending circumstances at the time, including the width of [17ASR2d25] the highway, the sharp curve and sudden downgrade in the road, and the possibility of oncoming traffic also approaching the curve. Specifically, the defendant drove too fast around the curve and did not keep his vehicle sufficiently under control. As he negotiated the curve, he not only failed to keep entirely within his own lane, but also failed to anticipate the reasonably foreseeable possibility that unseen and oncoming traffic might also be approaching the curve from the opposite direction. As a result, the collision occurred and plaintiff sustained injuries.

We are satisfied that the defendant drove his vehicle in a negligent manner and that his negligence was the proximate cause of plaintiff's injuries. Accordingly, the defendant is liable to the plaintiff for damages.

********

1. This third-party offered testimony on behalf of the defense. He testified that he had been following the defendant's vehicle and he noticed that plaintiffs vehicle (the Suzuki) was approaching on the wrong side of the road. This testimony was in direct conflict not only with the testimony of the plaintiff and the driver of the Suzuki ---which had defendant driving on the wrong lane---but also with that of certain bystanders who testified that this third-party witness did not arrive at the scene until sometime after the accident.

We concluded that this third-party witness's testimony was, on balance, suspect. From the evidence, it appears that the collision occurred immediately after defendant had rounded the curve in the road since there was no time for either driver to take evasive action. Given the curve's blind areas, the third-party witness would also have had to have gone around the curve in order to get an unfettered view of the Suzuki coming from the opposite direction. This in turn tends to suggest that the third-party witness would also have had to tailgate the defendant in order to be in a position to observe the approaching vehicle prior to, or at the time of, the collision. Yet, despite the startling happenings that immediately arose after the defendant had rounded the curve, the third-party witness is in effect telling us that he somehow managed, not only to avoid being tangled up in the collision, but that he also managed to elude the notice of bystanders as well. The weight of the evidence tends to suggest that the third-party witness was not even at the scene at the crucial time as testified to by certain onlookers. Another factor which has prompted reservations with this witness is that he has only now come forward with testimony to exonerate the defendant of responsibility. As an eyewitness who could clear the defendant of fault, the question which naturally arises is why this witness was not sooner brought forward when the defendant had to answer a charge before the District Court of careless driving causing bodily injury in violation of A.S.C.A. § 22.0701. See TR No.36559. That court's record, however, reflects a voluntary plea of guilt tendered to the charge by the defendant, who was then convicted accordingly. Additionally, and as consequence of the collision, the defendant also had to defend a prior civil suit for the total loss of the pickup truck (which in actuality was being borrowed by the defendant on the day in question). See Atualevao v. Barber, supra. Yet the third-party witness's exculpatory testimony was similarly not utilized to defend this suit. It is not that the third-party was unknown to the parties; indeed, he was the one who had transported both plaintiff and defendant to the hospital after the collision. If, indeed this person had a critical eyewitness account of the collision, that account of the collision should have (especially with police involvement) surely surfaced earlier.  Finally, the claim of blamelessness which the defendant now asserts before this Court, inconsistent with his prior admission of guilt before the District Court, is, in our view, thoroughly unconvincing.

Bank of Hawaii; Pene v.


SEIGAFOLAVA R. PENE (H/C) and CARMENCITA PENE, Appellant

v.

BANK OF HAWAII, Appellee

High Court of American Samoa
Appellate Division

AP No. 11-89

December 11, 1990

__________

Instrument containing all the terms of a completed contract between two parties which is executed by one party and accepted or adopted by the other constitutes a contract in writing within the meaning of the applicable statute of limitations, regardless of the fact that the latter party did not sign the instrument.

Where the parties could be ascertained from the face of a note and security agreement executed by appellants in which terms, provisions, and conditions were fully set forth in writing, and the lender did not sign the agreement, but accepted or adopted it and relied on its validity as a promissory note, such note and security agreement was a written contract subject to a ten-year statute of limitations. A.S.C.A. § 43.0120.

Statute which sets different limitation periods for actions based on written and unwritten contracts, but does not define either term, is not unconstitutionally vague and does not violate due process, since parties can rely on case law and other legal authority to determine the meaning of these terms. [17ASR2d169]

Before FONG*, Acting Associate Justice, KLEINFELD**, Acting Associate Justice, MALEATASI***, Acting Associate Justice, TAUANU'U, Chief Associate Judge, and LOGOAI, Associate Judge.

Counsel: Appellant Pene pro se

  For Appellee, John L. Ward II

Appellants Seigafolava R. Pene (H/C) and Carmencita Pene (hereinafter the Penes) appeal the trial court's order granting summary judgment in favor of appellee-plaintiff Bank of Hawaii.

On December 22, 1982, plaintiff-appellee Bank of Hawaii loaned appellants, the Penes, $5,000.00 to finance a "promotional trip." See Appellants' Exhibit A (copy of Note and Security Agreement executed onDecember 22, 1982); see also Trial Court's Opinion and Order tiledJuly 18, 1988, at 1. The entire principal amount, plus a finance charge of $270.41, was to have been paid byMarch 26, 1983, approximately ninety days after the date of the loan.Id.

It is undisputed that appellants did not repay the loan when it came due on March 26, 1983. On February 25, 1985, Mrs. Pene responded to a bank collection letter with a handwritten note acknowledging the debt and asking that the bank allow the Penes to make $100 monthly payments until she and her husband could find employment. See Trial Court's Order at 3-4. Four payments totaling $250.00 were made to the Bank of Hawaii between March and August of 1985. Id. at 4.

On March 28, 1988, plaintiff Bank of Hawaii filed a complaint against the Penes, alleging that the Penes had defaulted on the loan. The Penes filed an answer on May 23, 1988. Thereafter, plaintiff Bank of Hawaii filed a motion for summary judgment, for which a hearing was held on June 27, 1988. On July 18, 1988, the trial court issued an [17ASR2d170] opinion and order granting plaintiff Bank of Hawaii's motion for summary judgment.

The Penes filed the instant appeal on July 31, 1989, arguing that the trial court erred in failing to dismiss plaintiff-appellee Bank of Hawaii's complaint for failure to state a claim upon which relief could be granted.

This court must decide whether the Note and Security Agreement executed by the Penes onDecember 22, 1982 is a "written" or an "unwritten" contract.

Appellants-defendants, the Penes, have argued that the Note and Security Agreement is an "unwritten" contract, and consequently the 3- year statute of limitations found in A.S.C.A. § 43.0120(3) precludes the instant lawsuit. Appellants have argued that since the Bank of Hawaii never executed the agreement by written acceptance, the Note and Security Agreement is null and void. In the alternative, appellants have argued that A.S.C.A. § 43.0120 is unconstitutionally vague and therefore violates appellant's right to due process.

Appellants have cited no case authority supporting their argument that the written Note and Security Agreement is, in reality, an unwritten contract. Appellants have argued that the intent of the Fono in drafting A.S.C.A. § 43.0120(5), which provides for a 10-year statute of limitation for written contracts, was to require a writing with the full terms, provisions and conditions of the contract fully set forth, the parties to the agreement ascertainable on the face of the instrument, and execution of the instrument by both parties. See Appellants' Reply Brief at 2. Appellants, however, have cited no authority supporting their argument that both parties must execute the instrument.(1)

Appellee-plaintiff Bank of Hawaii has argued that the Note and Security Agreement is a "written" contract and, therefore, the 10-year statute of limitations found in A.S.C.A. § 43,0120(5) applies. Appellee contended that since the cause of action arose when the Penes defaulted on the loan on March 26, 1983, and the instant lawsuit was filed on [17ASR2d171]March 28, 1988, the complaint was timely filed within the ten-year statute of limitations period.

As a general rule, where an instrument containing all the terms of a completed contract between the two parties is executed by one of the parties and accepted or adopted by the other, the instrument constitutes a contract in writing within the meaning of the applicable statute of limitation, notwithstanding the fact that the instrument may not have been signed by the latter party. 3 A.L.R.2d 809, 819 (1949).

This general rule was restated in Mills v. McGaffee, 254 S. W.2d 716 (Ky. 1953):

A written contract is one which is all in writing, so that all its terms and provisions can be ascertained from the instrument itself.

Id. at 717.

Appellants have argued that Bank of Hawaii's reliance on the above authority is misplaced because "[f]ederal statues and related components do not apply to proceedings in the High Court of American Samoa." See Appellants' Reply Brief at 1 (citing Security Pacific National Bank v. the M/V Conquest, 4 A.S.R.2d 59 (1987)).

Appellants' argument itself is misplaced. First, Bank of Hawaii has not cited any federal authority to support its position. A.L.R. (American Law Reports) is a treatise, and the Mills case is a state appellate decision. Second, although the High Court of American Samoa Trial Division did hold in Security Pacific National Bank v. the M/V Conquest, 4 A.S.R.2d 59 (1987), that a federal statute does not apply to proceedings in the High Court of American Samoa, the court also held that the passage of a federal statute by Congress should be considered in determining whether changed circumstances warrant the application of rules announced in nineteenth-century precedents.

In the present case, it is beyond dispute that the Note and Security Agreement is an instrument in writing, that all of its terms, provisions and conditions are fully set forth in writing, and the parties to the agreement are ascertainable on the face of the agreement. Although Bank of Hawaii did not sign the agreement, it is clear that bank of Hawaii accepted or adopted the agreement and relied on its validity as a promissory note to repay the $5,000.00 loan. These facts support a [17ASR2d172] finding that the Note and Security Agreement is a written contract and that the 10-year statute of limitations applies.

Appellants have cited no case authority in support of their position that the Note and Security Agreement constitutes an unwritten contract. Appellee Bank ofHawaii, on the other hand, has cited case authority, albeit old and not Samoan, that supports its position that the Note and Security Agreement constitutes a written contract. Accordingly, the court finds that the Note and Security Agreement is a written contract, and therefore, Bank of Hawaii's action was filed within the requisite 10-year statute of limitations period.

Appellants' alternative argument, that A.S.C.A. § 43.0120 is unconstitutionally vague and violates appellants' right to due process, is also unmeritorious. Section 43.0120 reads:

43.0120 Limitations periods. Actions may be brought within the following times after their causes accrue, and not afterward, except where otherwise especially declared:

*****

(3) actions founded on unwritten contracts, or brought for injuries to property, within 3 years;

*****

(5) actions founded on written contracts, or a .judgment of a court of record, within 10 years.

The statute clearly expresses that a 3-year statute of limitations period applies to actions founded on unwritten contracts, and a 10-year statute of limitations period applies to actions founded on written contracts. The fact that the statute does not define what constitutes an unwritten as opposed to a written contract does not make the statute unconstitutionally vague. Parties can rely on case law and other legal authority to determine what is meant by an unwritten as opposed to a written contract. Any argument that the statute's failure to define these terms violated due process is totally frivolous. The court finds that the statute in question is not unconstitutionally vague and that due process has not been violated.

Accordingly, having reviewed appellants' arguments in support of their appeal and finding none compelling, the decision of the trial [17ASR2d173] court in granting plaintiff's motion for summary judgment is hereby AFFIRMED.

********

*Honorable Harold M. Fong, SeniorJudge,United StatesDistrict Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

**Honorable Andrew J. Kleinfeld, District Judge, United States District Court for the District of Alaska, serving by designation of the Secretary of the Interior.

***Honorable Maleatasi M. Togafau, District Judge, High Court of American Samoa, sitting by designation of the Secretary of the Interior.

1. Appellants cite cases which explain and define implied contracts, but these cases do not involve the question of how to determine whether a writing constitutes a written contract or an unwritten contract for purposes of determining which statute of limitations applies. See London v. Kansas City Gas Co., 10 F.2d 263 (8th Cir. 1926); Caldwell v. Missouri State Life Ins. Co., 230 S.W. 566 (Ark. 1921).

American Samoa Gov’ t; Kim v.


OK NAM KIM, Appellant

v.

AMERICAN SAMOA GOVERNMENT, Appellee

AP No. 5-90

High Court of American Samoa
Appellate Division

October 4, 1990

__________

It would be inappropriate to grant interim relief on an appealed motion when the court believes it is without jurisdiction of the appeal.

Where defendant's trial in District Court was continued so that he could appeal the District Court's denial of his motion to appoint an interpreter, his motion to strike additional facts included by the District Court in the record on appeal was consolidated for argument with the merits of the appeal.

Before KRUSE, Chief Justice, and REES, Associate Justice.

Counsel: For Appellant, Togiola T.A. Tulafono

  For Appellee, Jeffrey Buckner, Assistant Attorney General

This appeal concerns whether appellant, who has been charged with Driving Under the Influence, is entitled to a Korean-English interpreter at government expense.

Appellant now moves to strike a set of "Additional Facts" included by the District Court as part of the record on appeal. Appellant primarily urges that appellee did not object to the statement of facts originally submitted by appellant and subsequently adopted by the District Court, and that the District Court had no jurisdiction to add to its statement of facts after the appeal had been docketed.

The judges hearing the present motion are of the opinion that the Appellate Division is without jurisdiction to entertain this appeal, because [17ASR2d2] the court below has rendered no final judgment. Rather, the trial was continued so that appellant could bring an appeal from the District Court's denial of his motion for appointment of an interpreter.

As counsel for appellee pointed out at the argument of this motion, no motion to dismiss the appeal is presently before the Court. The appeal itself is set for oral argument at the regular session of the Appellate Division tentatively scheduled for the week ofOctober 29, 1990. The government's brief on the merits does include an argument that the Court has no jurisdiction to hear the appeal. We believe the decision on whether to dismiss the appeal for want of jurisdiction should be made after oral argument before a regularly constituted panel of the Appellate Division. It would be inappropriate, however, for the judges hearing the present motion to grant interim relief with respect to a matter in which we believe ourselves to be without jurisdiction. Accordingly, we will defer any judgment on the motion to strike until the regular session of the Appellate Division.

We recognize that this may create difficulties for counsel, who must be prepared to argue the merits of the appeal both on the original statement of facts and on the statement of facts as amended. We note, however, that the arguments on the legal issues before the Court should not be greatly affected by any decision on whether to include the additional facts. Neither of the questions before the Appellate Division---whether the Appellate Division has jurisdiction over the appeal and, if so, whether a non-indigent criminal defendant has the right to a Korean-English interpreter at government expense---would appear to turn on any of the facts included in the Statement of Additional Facts. Appellant concedes that he is not indigent, and neither the original statement of facts nor the additional one tells us whether or to what extent appellant speaks and understands English or Samoan.

The motion to strike is consolidated for argument with the merits of the appeal.

It is so Ordered.

********

Kim v. Am. Samoa Gov’t


Generally, an interlocutory order during the course of a judicial proceeding is not a final decision that can be immediately appealed to the High Court, but is reviewable only by means of appeal from an adverse judgment in the main proceeding.

An interlocutory order is final and thus appealable if it finally determines claims of right separable from and collateral to rights asserted in the main action, too important to be denied review, and too independent of the cause itself to require that appellate review be deferred until the whole case is adjudicated.

To fall within collateral order exception, an order must: (1) conclusively resolve the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from the final judgment in the main case.

A collateral order is generally regarded as effectively unreviewable and therefore final---even if a later appeal from an adverse judgment in the principal action is possible---when substantial rights would be lost if appeal were delayed until the main stream of the litigation is terminated.

Where defendant asserts a right which is or includes a right not to bear the burden of the suit itself, regardless of the outcome, he may immediately appeal a denial of that right under the collateral order exception.

Order on appeal is effectively unreviewable when a showing of prejudice to the defense is required to obtain a reversal.

Denial of an interpreter generally requires a showing of actual prejudice to the defense to justify reversal on appeal.

Defendant's appeal of an interlocutory order denying his asserted absolute right to appointment of an interpreter on request falls within the collateral order exception since he is asserting a right not to be tried under such circumstances, and such right is effectively unreviewable, since denial of an interpreter generally requires a showing of prejudice to obtain a reversal. [17ASR2d194]

Neither the Due Process Clause of the Fifth Amendment nor the right to a fair trial guaranteed by the Sixth Amendment gives a non-indigent defendant the right to a court- appointed and government-paid interpreter .

Trial judge has wide discretion in deciding whether to appoint an interpreter and need not accept defendant's assertion that he needs one as dispositive, but must balance defendant's right to confrontation and effective assistance against the public's interest in the economical administration of criminal law.

American Samoa Constitution guarantees a court-appointed interpreter only to an indigent defendant who will otherwise be unable to understand the proceedings against him or to communicate with his counsel.

Court employment of Samoan-English interpreters, but not interpreters of other languages, is simply a practice which reflects the cultural and juridical history of American Samoa rather than a racially based classification.

Statute providing that the High Court shall have interpreters deals with the method of appointing permanent court employees and does not require Court to find, employ, and compensate special ad hoc officers whenever a litigant demands an interpreter.

Before KRUSE, Chief Justice, REES, Associate Justice, FONG*, Associate Justice, VAIVAO, Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Appellant. Togiola T.A. Tulafono

  For Appellee, Jeffrey Buckner, Assistant Attorney General

This is an interlocutory appeal from the denial by the District Court of a court-appointed Korean interpreter for appellant's trial on the charge of driving under the influence of alcohol. The appellant concedes that he is not indigent. There is no evidence in the record before us, with the possible exception of the fact that appellant's counsel requested the appointment of an interpreter, of the extent of appellant's ability or inability to speak or understand English or Samoan.

I. Jurisdiction

The appellee argues that we are without jurisdiction over this appeal because there has been no "final decision" of the District Court. See A.S.C.A. § 3.0309.

Honorable Harold M. Fong, Senior Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior. [17ASR2d195]

In general, an interlocutory order during the course of a trial or other judicial proceeding is not a "final decision" within the meaning of A.S.C.A. § 3.0309 and similar statutes. Such orders, even though they may be "fully consummated decisions" with respect to the issue they address, "are but steps towards final judgment in which they will merge," and are therefore reviewable only by means of appeal from an adverse judgment in the main proceeding. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949); see Deaver v. United States, 483U.S. 1301 (1987).

An interlocutory order is, however, final and therefore appealable if it falls within the "collateral order exception." This exception describes "that small class [of interlocutory orders] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate considerations be deferred until the whole case is adjudicated." Cohen, supra, 337 U.S. at 546. To fall within the collateral order exception, an order must (1) conclusively resolve the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from the final judgment in the main case. Van Cauwenberghe v. Biard, 486 U.S. 517 (1988); Coopers & Lybrand v. Livesay, 458 U.S. 263 (1978).

There is no question that the instant order is "collateral" in the sense that it resolves a question that is separate and distinct from the merits of the action. No question raised by this appeal or by the decision below has any bearing on the merits of the criminal action itself, which have to do with whether appellant is guilty of driving under the influence of alcohol. The District Court's ruling on the question of an interpreter was also conclusive: the trial was about to go forward without an interpreter when appellant moved for a stay to accommodate the present appeal.

There is a serious question about whether this order would be effectively unreviewable upon final judgment in the criminal case. If the trial had taken place without an interpreter and had resulted in a conviction, an appeal from the conviction might have been taken on the same grounds asserted in the present appeal. An acquittal would have rendered appeal unnecessary , at least insofar as the harm appellant sought to avoid was limited to the possibility of conviction and punishment. [17ASR2d196]

Collateral orders are, however, generally regarded as "effectively unreviewable" and therefore final ---notwithstanding the possible availability of a later appeal from an adverse judgment in the principal action---when "substantial rights would be lost, if appeal were delayed until the main stream of the litigation is terminated." Kowalski v. Holden, 276 F.2d 359 (6th Cir. 1960). This principle has been applied, at least until recently, to the denial of court-appointed counsel in criminal cases. See United States v. Harris, 707 F.2d 653 (2d Cir.), cert. denied, 464 U.S. 997 (1983); United States v. Deutsch, 599 F.2d 46 (5th Cir.), cert. denied, 444 U.S. 935 (1979). Such treatment has been based partly on the risk that uncounseled defendants would unwittingly surrender substantive and procedural rights in ways that would tend to evade later appellate review, and partly on the idea that "the unedifying spectacle of a trial of a lawyerless defendant" is a harm separate from that represented by any conviction and sentence that might result. Harris, supra, 707 F.2d at 657; see Deutsch, supra, 599 U.S. at 47-48. In this respect, the right to counsel may resemble the right not to be "placed in jeopardy" twice for the same offense or the right of a legislator not to "be questioned" with respect to an official speech or debate. See Abney v. United States, 431 U.S. 651 (1977) (denial of pre-trial motion to dismiss on double jeopardy grounds is an immediately appealable collateral order); Helstoski v. Meanor, 442 U.S. 500 (1979) (denial of motion to dismiss grounded in the Speech or Debate Clause is immediately appealable). See also Segni v. Commercial Office of Spain, 816 F.2d 344, 345 (7th Cir. 1987):

Where the right asserted by way of defense to a lawsuit is (or includes) a right not to bear the burden of the suit itself, regardless of outcome, the denial of that right, as by denying a motion to dismiss the suit, is appealable immediately by virtue of the collateral order doctrine. An appeal after judgment would come too late to protect the right.

A fairly recent United States Supreme Court case on a related question raises serious doubts about whether the federal courts will continue to regard denials of appointed counsel as immediately appealable. In Flanagan v. United States, 465 U.S. 259 (1984), the Court ordered the dismissal for lack of jurisdiction of an interlocutory appeal from a pre-trial order disqualifying defendants' counsel for conflict of interest. The Court observed that defendants were not asserting "a right not to be tried," but merely "a right not to be convicted in certain circumstances." Id. at 267. A successful appeal from an order [17ASR2d197] disqualifying a particular counsel would not result in dismissal of the prosecution, but only in a delayed trial; allowing immediate appeal from such an order "thus would severely undermine the policies behind the final judgment rule." Id. at 270. Moreover, "postconviction review is concededly effective" to the extent that the asserted right to represention by a particular lawyer "is like the Sixth Amendment rights violated when a trial court denies appointment of counsel altogether...." Id. at 268. "No showing of prejudice need be made to obtain reversal" when a court has improperly refused to appoint counsel, "because prejudice to the defense is presumed."Id.

The only federal court of appeals to consider the question since Flanagan has held that denials of appointed counsel are no longer immediately appealable, because the earlier contrary cases "do not survive the rationale" of Flanagan. United States v. Celani, 748 F.2d 363, 365 (7th Cir. 1984). The Celani court placed special emphasis on the point that an improper denial of counsel would entitle defendant to a reversal on appeal even if he could not show that it caused any actual prejudice to his defense. "The 'effective reviewability of an order on appeal depends on whether a showing of prejudice to the defense is required to obtain a reversal." Id. (citing Flanagan). Since no such showing is required, "immediate appealability is not necessary to protect the defendant's rights regarding appointment of counsel prior to trial." 748 F.2d at 365.

The constitutional and statutory right to an interpreter asserted in the present appeal is closely related to the right of an indigent person to appointed counsel. To require someone to undergo a criminal trial without a court-appointed interpreter in circumstances where such appointment was required by law---if, for instance, the defendant were penniless and understood not a word of the proceedings against him---might well occasion palpable injury beyond the possibility of conviction and sentence. "Trying a defendant in a language he does not understand has a Kafka-like quality," and it is at least in part to avoid forcing people to undergo such an ordeal that courts have sometimes recognized a constitutional right to a court-appointed interpreter. United States v. Desist, 384 F.2d 889, 902 (2d Cir. 1967); see United States ex rel. Negron v. New York, 434 F.2d 386 (2d Cir. 1970).

In this respect the denial of an interpreter is unlike the denial of the "right" to a particular lawyer with which the Court was confronted in Flanagan. A person required to undergo a trial with the assistance of competent counsel other than the one he most prefers may not enjoy the [17ASR2d198] proceeding, but an acquittal or a reversal on appeal will do much to help him get over his disappointment. The same cannot be said for someone who has been forced, in violation of his constitutional or legal rights, to endure a "Kafka-like" experience such as that described in Desist. Moreover, there is a significant chance that a defendant unable to understand anything the judge, the witnesses, or his own counsel was saying would enter a guilty plea that would be uninformed, effectively uncounseled, and yet most unlikely ever to be reviewed on appeal. Cf. Deutsch, supra, 599 F.2d at 48.

We note further that the denial of an interpreter, unlike the denial of appointed counsel, has not generally been held to justify reversal on appeal in the absence of a showing of actual prejudice to the defense. See, e.g., Cervantes v. Cox, 350 F.2d 855 (10th Cir. 1965). Appellant in the present case asserts a broad constitutional and statutory right to appointment of an interpreter upon request. This right, as asserted by appellant, is absolute; it does not depend on a finding that an interpreter is necessary to guarantee a fair trial, and it is available even to a defendant who speaks some English or Samoan and who therefore might manage to survive a trial without demonstrable prejudice. In such a case the denial of an interpreter (assuming that there really was an absolute right to one) would constitute a violation of an independent substantive right, and yet reversal on appeal would not be an appropriate remedy. In this respect the right being asserted in the present case differs importantly from the right to appointed counsel. See Celani, supra, at 365-66; cf. Flanagan, supra, 465U.S. at 268.

Despite doubts occasioned by the Court's opinion in Flanagan---and despite our strong agreement with the sentiments expressed in that opinion to the effect that criminal litigation should be expeditious and not piecemeal---we conclude that the right being asserted in the present appeal is not merely a right not to be convicted under certain circumstances, but a right not to be tried under such circumstances. We further conclude that at least some violations of the asserted right would not be remediable by reversal on appeal, or even by acquittal. We therefore hold that the District Court's order denying the appointment of an interpreter is within the small class of pre-judgment orders that are "final decisions" immediately appealable under A.S.C.A. § 3.0309.

II. The Right to An Interpreter

Neither the due process clause of the Fifth Amendment to the United States Constitution nor the right to a fair trial guaranteed by the [17ASR2d199] Sixth Amendment confers upon a non-indigent defendant the right to a court-appointed and government-financed interpreter. United States v. Martinez, 616 F.2d 185 (5th Cir. 1980); Desist, supra. Even an indigent defendant is entitled to a court-appointed interpreter only insofar a such appointment is necessary to enable him to understand the proceedings and to communicate with his counsel; the trial judge has wide discretion in deciding whether to appoint an interpreter and need not accept as dispositive the defendant's assertion that he needs one. Cervantes v. Cox, supra; see Valladares v. United States, 871 F.2d 1564 (11th Cir. 1989). "The trial court must balance the defendant's rights to confrontation and effective assistance against the public's interest in the economical administration of criminal law, and the court's balancing is reversible only on a showing of abuse."  Valladares, 871 F.2d at 1566.

The American Samoa Constitution contains a due process clause identical to its federal counterpart, as well as a fair trial guarantee substantially similar to that provided by the Sixth Amendment. See Rev. Const. Am. Samoa art. I §§ 2, 6 ("In all criminal prosecutions, the accused shall have the right. ..to be confronted with the witnesses against him. ..and to have the assistance of counsel for his defense."). We know of no evidence that those who ratified and promulgated the territorial constitution in 1967 meant these provisions to derogate from the settled interpretations of the sources upon which they drew. Moreover, we find the federal jurisprudence most persuasive. Notwithstanding the strong policy against trying any defendant in a language he does not understand, a defendant's ability to remedy the situation by providing his own interpreter "dissipates substantially---perhaps completely---any feeling of unease."  Desist, supra, 384 F.2d at 902.

[I]f the real point is guarantee of a fair trial, ...[and if the defendant] denied himself the interpreter and stands on his own right to do so, does not the issue become solely who should have paid for one? ... [W]e doubt that [the] claimed absolute constitutional right to an interpreter is stronger than the absolute right to a court-appointed counsel; the latter is held only by the indigent. ...

Id. We hold that the American Samoa Constitution guarantees a court-appointed interpreter only to an indigent defendant who will otherwise be unable to understand the proceedings against him or to communicate with his counsel. [17ASR2d200]

Appellant also suggests that the employment by the Court of Samoan-English interpreters but not of Korean-English ones is a "racially based classification" which deprives appellant of equal protection of the laws. On the contrary, the practice simply reflects the cultural and juridical history of American Samoa. Court proceedings are conducted primarily in English for a number of practical reasons having to do with the Territory's relationship to the United States, but Samoan is the principal language of over ninety percent of the population. For the same reasons that a court or other official institution in the United States does not deprive anyone of equal protection by doing business in only one language, such an institution in Samoa does not deprive anyone of his constitutional rights by providing its basic services in two languages (with supplemental interpretation for those who genuinely need and cannot afford it) rather than in seven or seventeen.(1)

Finally, appellant contends that his right to a court-appointed interpreter is guaranteed by A.S.C.A. § 3.0205, a territorial statute entitled "Appointment of clerk and other officers." This section provides that the High Court" shall have a clerk, interpreters, who may also be deputy clerks," and various other employees who shall be appointed by the Chief Justice and shall have salaries fixed by him. Assuming for the sake of argument that this statute requires the Chief Justice to appoint interpreters not only for the High Court but also for the District Court,(2) it must be read in its context.

A.S.C.A. § 3.0205 deals with the method of appointment of permanent court employees; those with "fixed" salaries, who are [17ASR2d201] appointed by the Chief Justice and are "subject to removal" by him. The reference to "interpreters, who may also be deputy clerks" is obviously also a reference to regular Court employees. Moreover, at the time of the enactment of this law in 1962, the Court had been in existence for over sixty years; it had always employed Samoan-English interpreters and had never employed any other kind. The language of section 3.0205 is hardly the sort of language a legislature would use to impose on the Court a new and important obligation to find, employ, and compensate special ad hoc officers whenever a litigant should demand them. Nor has this been the practical construction of the law during the thirty years since its enactment; neither the Fono nor the United States Department of the Interior has ever appropriated money to pay such ad hoc officials, and the Court has never appointed them except in cases involving indigents, where such appointment was compelled by the constitutional guarantees of due process and a fair trial.

Accordingly, the order of the District Court is AFFIRMED.

********

1. The above analysis assumes that the federal equal protection clause has some application to the question at hand. It should be noted that "the extent to which the equal protection clause of the Fourteenth Amendment applies in the territory is unclear." Macomber v. American Samoa Government, 12 A.S.R.2d 29, 30 (1989). See generally Banks v. American Samoa Government, 4 A.S.R.2d 113, 123-28 (1987) (discussing the extent to which federal equal protection doctrine applies inAmerican Samoa under the doctrine of The Insular Cases).

The Revised Constitution of American Samoa, promulgated in 1967 under the authority of the Secretary of the Interior, contains no equal protection clause.

2. A.S.C.A. § 3.0205 applies on its face only to the High Court. A.S.C.A. § 3.0307, the section regulating the appointment of officers of the district court, provides that the Chief Justice "may" assign High Court employees to work part-time or full-time for the district court, and that he may also appoint such other district court officers as he "may consider necessary."

American Samoa Gov’t v. Falefatu,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

FALEFATU aka FATU FA'AMAONI, Defendant

High Court of American Samoa 
Trial Division

CR No. 63-89

December 5, 1990

__________

The Court may correct an illegal sentence at any time. T.C.R.Cr.P. 35.

A motion for a new trial in a criminal case "shall be filed within 10 days after the announcement of judgment or sentence." A.S.C.A. § 46.2402(a).

The ten-day time limit to file a motion for a new trial is mandatory and jurisdictional; errors of law not raised within ten days of judgment or sentence are waived, at least insofar as they concern the right to appeal. A.S.C.A. §§ 43.0802(a), 46.2402(8).

The formal style or caption of a motion for a new trial is not essential to fulfill the statutory requirement; nor must the motion specifically request a new trial rather than some lesser or different form of relief, as long as the asserted errors are susceptible of such relief. A.S.C.A. § 43.0802(a), 46.2402(a).

What is essential to a motion for a new trial is that it be filed within the statutory period and that it fully apprises the court of the asserted errors in the judgment or sentence, so that the trial court may consider for itself whether any such errors occurred and make appropriate corrections.

Insofar as T.C.R.Cr.P. 35 purports to extend or abolish the mandatory deadline for alleging errors of law in a criminal sentence, it is in direct conflict with the statute; as such, the statute must prevail over the judge-made rule. A.S.C.A. § 43.2402(a). T.C.R.Cr.P.35.

Although T.C.R.Cr.P. 35 is derived, almost verbatim, from the Federal Rules of Criminal Procedure, the federal courts are not subject to a statutory , jurisdictional limitation such as applies to the High Court of American Samoa. A.S.C.A. § 43.2402(a); T.C.R.Cr.P. 35; Fed. R. Crim. P. 35.

Because the High Court's rules were promulgated solely on its own authority, they must give way to territorial statutes defining the court's jurisdiction, unless the statutes themselves are unconstitutional.

In some cases, such as when an illegal sentence was pronounced on a defendant unrepresented by counselor when the circumstances surrounding an error of law made it impossible for counsel to call it to the Court's attention within ten days, a statutory ten-day [17ASR2d115] limit might amount to an unconstitutional denial of liberty without due process of law. U.S. Const. Amends. V, XIV; Revised Const. of American Samoa art. I, § 2; A.S.C.A. § 46.2402(a).

The High Court has continuing jurisdiction to terminate or modify the conditions of probation throughout the entire term of probation. A.S.C.A. § 46.2205.

An untimely motion for a new trial was construed to be one to terminate conditions of probation. A.S.C.A. §§ 46.2205.

The High Court has the power to impose detention as a condition of probation for a period equivalent to one-third of the maximum sentence of imprisonment authorized by law. A.S.C.A. § 46.2206.

Probation's public protection purpose includes the protection of particular people from the probationer, as well as deterring the probationer from future misconduct.

Conditions of probation are valid if they are reasonably related either to rehabilitation or to public protection, at least if the entire sentence considered as a whole was reasonably calculated to achieve both of these purposes. A.S.C.A. §§ 46.2205

Under the 1987 amendment to the probation statute, sentencing judges are free to impose probation for reasons other than the rehabilitation-related provisions of the statute. A.S.C.A. §§ 46.2203, 46.2206.

That a criminal may be unable to determine the exact punishment and exceptions to punishment does not render criminal statutes unconstitutional; a person is only entitled to know the maximum punishment available.

No constitutional right to rehabilitation at public expense exists, nor do statutes authorizing rehabilitation programs or early release give any particular criminal a constitutionally protected "liberty interest" in participating in them.

Although federal courts have generally held that it is beyond the power of a sentencing court to order that the defendant leave the jurisdiction, such orders have been a regular feature of criminal sentences in American Samoa for many years.

Criminal convictions are proper grounds for deportation. A.S.C.A. §§ 41.0616(4), (6), (9), (10), (11), (16); 8 U.S.C. § 1251(a)(5), (11), (14), (15), (16).

The mere fact that a person who has committed a serious crime is required for that reason to return to his own country is not, absent extraordinary circumstances, either cruel or unusual. U.S. Const., Amend. VIII.

American Samoa, unlike the fifty states and the other territories of the United States, is specifically excluded from the scope of federal immigration laws and has, pursuant to congressionally-delegated authority, enacted its own immigration laws. 8 U.S.C. § 1101(13), (29), (36), (38); A.S.C.A., Title 41.

American Samoa is an unorganized, unincorporated territory; accordingly, the federal Constitution applies here only insofar as its tenets restate "those fundamental limitations in [17ASR2d116] favor of personal rights" that are "the basis of all free government," or which have been specifically made applicable by Act of Congress.

The Revised Constitution of American Samoa, promulgated in 1967 under the authority of the Secretary of the Interior, contains no equal protection clause.

Requiring a probationer to reside in a certain place may be imposed for the protection of the public, particularly the victim and others who may have assisted in the prosecution, and to remove the defendant from an environment found to have contributed to his criminal behavior.

No substantive due process right exists for not being deported.

Under its "unorganized and unincorporated" status, American Samoa is not part of the federal system and is not intended for incorporation.

The right to interstate travel is a substantive, virtually unqualified constitutional right, but international travel can be regulated within the limits of due process. U .S. Const. Amend. V.

The freedom to travel is one of the freedoms a convicted criminal may lose; therefore, a requirement that a convict spend part or all of his probation outside the Territory does not unconstitutionally abridge any such right.

The basis of the United States' immigration laws is the right of independent nation-states to protect their political institutions, their people, and their independent existence by legally and forcibly excluding undesirable foreigners.

Although not supreme, independent, or sovereign, American Samoa has a different relationship with the Union than the states, with a number of attendant advantages and disadvantages.

The power to expel aliens is a fundamental, sovereign power exercised by the political branches of government.

American Samoa's Attorney General has the power to "enforce and administer" the laws pertaining to immigration and the status of aliens, and the statutory procedures are the exclusive method for "determining the deportability of any person." A.S.C.A. §§ 41.0103(a), 41.0614.

The sole, stated purpose of the territorial immigration statute is to preserve the "limited land resources, water, sewage facilities, and educational and economic opportunities" of American Samoa.A.S.C.A. § 41.0201.

In imposing conditions of probation, the sentencing judge is well-situated to know whether a particular offender needs to be insulated from his past environment, his associates, his victim, or those who assisted in his prosecution, as well as the best methods to assure such insulation.

Persons deemed deportablc under the immigration statute are almost invariably deemed excludable from readmission; but in many circumstances, they be readmitted at the [17ASR2d117] discretion ofAmerican Samoa's Immigration Board and Attorney General. A.S.C.A. §§ 41.0613, 41.0615-16, 41.0617.

The Court's power over probationers is strictly limited to the term of the probation. which may not exceed five years. A.S.C.A. § 46.2204.

Legislative inaction in the face of judicial statutory construction strongly suggests agreement with, or at least acquiescence in, the judicial interpretation of those laws.

When the legislature re-enacts a statute or adopts amendments to it "without a suggestion of disagreement" with a prior judicial construction, a very strong presumption exists that the legislature has adopted the prior construction.

A person who has been "convicted of a crime involving moral turpitude committed within 5 years after any entry" is deportable; if he were outside the territory, he would be excludable as a convicted felon. A.S.C.A. §§ 41.0615(8), 41.0617(4).

American Samoa's Attorney General may have the discretion to allow a deportable or excludable alien to return and/or remain in the territory. A.S.C.A. § 41.0617.

Before REES, Associate Justice, and VAIVAO, Associate Judge.

Counsel: For Plaintiff, John WilksAssistant Attorney General

  For Defendant, Charles V. Ala'ilima

On Motion for Reconsideration of Sentence:

I. Facts and Procedural History

On August 9, 1989, Falefatu Fa'amaoni pled guilty to a single count of Sexual Abuse in the First Degree, a felony punishable by imprisonment of up to five years. The guilty plea was pursuant to an agreement whereby the Government reduced the charge from Rape, a felony punishable by imprisonment of up to fifteen years.

The Court accepted defendant's guilty plea to the lesser charge and ordered a pre-sentence investigation. The facts contained in the pre- sentence report, which defendant did not contest either prior to sentencing or in connection with the present motion, reveal a sexual assault on a thirteen-year-old girl by Mr. Fa'amaoni (hereinafter "defendant") and two other adult males. Defendant, who was then twenty years old, appears to have been the ringleader. The probation officer who conducted the pre-sentence investigation noted that the victim [17ASR2d118]

suffered both physically and mentally. ...She sustained bruises and scratches on her body. She reported having nightmares and is seeing a psychiatrist for therapy. She expressed fear for herself and wants the court to keep Defendants as far away from her as possible.

The pre-sentence investigator added that "[t]here is also concern for Defendant[']s welfare because of victim's father and family who have vowed revenge." He noted that defendant Fa'amaoni has been in trouble before, has a serious alcohol problem, and currently lives with his alcoholic father and generally absent mother in a situation that seems calculated to exacerbate these problems. The probation officer concluded that defendant "definitely needs help" and that "[t]he problem is again his home and the lack of authority it exerts." He also recommended that sentence be calculated to give the victim and her family a "lengthy separation" from defendant.

The sentence recommended by the probation officer was substantially identical to that subsequently pronounced by the Court.  Defendant was sentenced to serve five years in the Correctional Facility, with execution of sentence suspended and the defendant placed on probation for five years on condition that the defendant:

(1) actually serve a twenty-month period of detention in the correctional facility, not to be released during this time for any reason other than medical emergencies;

(2) upon the conclusion of the detention period, depart American Samoa for the remainder of the five-year probationary period;

(3) participate in alcohol counseling programs;

(4) consume no alcoholic beverages;

(5) have no contact with the victim or her family; and

(6) be a law abiding citizen.

Defendant now moves for reconsideration of his sentence. The motion for reconsideration was made some 99 days after the announcement of sentence. Although A.S.C.A. § 46.2402(a) provides that "a motion for new trial shall be filed within 10 days after the announcement of judgment or sentence," defendant relies on the provision of Rule 35 of the Trial Court Rules of Criminal Procedure to the effect that "[t]he Court may correct an illegal sentence at any time." [17ASR2d119]

Defendant argues that the first two conditions of his probation are illegal. These are the conditions that he serve twenty months of probationary detention with no release except for medical emergencies and that he then depart the Territory for the remainder of the probationary period.

With respect to the condition that defendant depart the Territory for the latter part of his probationary period, the following facts are relevant: Defendant is a citizen of Western Samoa. He was born in the village of Lepa on the island of Upolu, Western Samoa, and both of his parents are Western Samoans. Defendant came to the Territory in 1974 or 1975 when his parents moved here, apparently for the purpose of employment. In 1988 defendant was detained by the police in connection with an alleged disturbance of the peace and an ensuing fight. No charges were filed, however, because defendant instead returned to Western Samoa at the request of the sa'o of the extended family with whom defendant and his family had been living in American Samoa. A few months later, however, he returned to American Samoa. Shortly thereafter he committed the crime that gave rise to the present case.

II. Jurisdiction

At the outset, we note an apparent conflict between A.S.C.A. § 46.2402 and T.C.R.Cr.P. Rule 35.

The former provision, governing prerequisites to appeal in criminal cases, requires in pertinent part that "a motion for a new trial shall be filed within 10 days after the announcement of judgment or sentence." A.S.C.A. § 46.2402(a) (emphasis added). The ten-day time limit set forth in this section and in its civil counterpart, A.S.C.A. § 43.0802, is mandatory and jurisdictional; errors of law not raised within ten days of judgment or sentence are waived, at least insofar as concerns the right to appeal. Seee.g.Taulaga v. Patea, AP No.19-89 (Opinion and Order issued November 2, 1990); Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146 (1988);Government of American Samoa v. King, AP No. 19-1970; Judicial Memorandum No. 2-87, 4 A.S.R.2d 172 (1987). The formal style of the motion ---for new trial, reconsideration, amendment of judgment, arrest of judgment, vacation of sentence, etc.---has never been held essential to fulfillment of the statutory requirement. Nor is it essential that the motion specifically request a new trial rather than some lesser or different form of relief from the judgment or sentence, provided that the errors asserted by the motion are susceptible of such relief. What is essential is that some motion be filed within the statutory period [17ASR2d120] which fully apprises the Court of the asserted errors in the judgment or sentence, so that the trial court may consider for itself whether any such errors occurred and make appropriate corrections, thereby obviating unnecessary appeals. See, e.g.Taulaga v. PateasupraKim v. Star-Kist Samoa, Inc.supra, 8 A.S.R.2d at 146-47; Government of American Samoa v. KingsupraJudicial Memorandum No. 2-87supra.

Insofar as the cited provision of Rule 35 purports to extend or abolish the mandatory deadline for alleging errors of law in a criminal sentence, it is in direct conflict with the statute. In cases of such conflict the statute, enacted pursuant to the power of the Fono to define and reasonably restrict the jurisdiction of the High Court, must prevail over the judge-made rule. Cf. Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983 (1975);Fanene v. Govermnent of American Samoa, 4 A.S.R. 957 (1968).(1)

Rule 35 was imported almost verbatim from the Federal Rules of Criminal Procedure. This is one of a number of instances in which it appears that the committee that compiled the American Samoa rules did not notice a difference between the federal and territorial statutory schemes which may render such verbatim importation inappropriate or impossible. The federal equivalent of Rule 35 is appropriate in the federal system because the federal courts are not subject to the .jurisdictional limitation imposed on the High Court of American Samoa by A.S.C.A. § 46.2402(a). There is no federal statutory requirement that a motion to reconsider a sentence be made within a certain number of days; rather, the federal rule itself, having been approved by Congress, defines the jurisdiction of the federal district courts with respect to reconsideration of sentences. In contrast, theAmerican Samoa rules were promulgated on the sole authority of the Court and must therefore give way to territorial statutes defining the Court's jurisdiction unless the statutes themselves can be shown to be unconstitutional. See [17ASR2d121] generally American Samoa Government v. Tile, 8 A.S.R.2d 120 (1988).

In some cases ---as when an illegal sentence was pronounced on a defendant unrepresented by counsel, or when the circumst3nces surrounding an error of law were such as to have made it impossible for counsel to call it to the Court's attention within ten days ---a requirement such as that imposed by A.S.C.A. § 46.2402(a) might amount to an unconstitutional denial of liberty without due process of law. No such special circumstances have been shown or alleged in the present case.

This Court does, however, have continuing jurisdiction to terminate or modify the conditions of probation throughout the entire term of the probation. A.S.C.A. § 46.2205. The matters raised by the present motion, although no longer ripe for reconsideration under A.S.C.A. § 46.2402 insofar as they allege defects in the original sentence, might well inform the Court's discretion with respect to whether conditions of probation should be terminated or modified. We therefore construe the present motion as one addressed to our discretion under A.S.C.A. § 46.2205 to terminate the two conditions of probation to which the defendant objects.

III. Detention as a Condition of Probation

Defendant's objection to the condition that he actually serve twenty months in the Correctional Facility, with no release except for medical emergencies, raises exactly the same arguments that were fully considered and rejected by the Appellate Division in the recent case of Atuatasi v. American Samoa Government, 9 A.S.R.2d 67 (1988).

In Atuatasi the Court held that the 1987 amendment to A.S.C.A. § 46.2206, permitting the Court to impose detention as a condition of probation for a period equivalent to one-third of the maximum sentence of imprisonment authorized by law for the crime in question, "has given the probation statute an entirely different purpose" than that reflected in the older and more general statements of statutory purpose on which defendant now relies. 9 A.S.R.2d at 78. Defendant argues, as did the unsuccessful appellant in Atuatasi: (1) that probation can only be imposed where institutional confinement is not necessary for the protection of the public, and (2) that each condition of probation must be "rehabilitative" rather than "retributive." However, Atuatasi upheld a sentence of detention as a condition of probation which had been imposed "precisely because the trial court determined that [the defendant] posed too great a [17ASR2d122] danger to the community if he were eligible for work release or similar early release programs."  Id. at 77.

The whole purpose of the 1987 amendment, as recounted at some length by the trial court in Atuatasi, was to ratify and extend judicial power to use probationary detention in order to prevent prisoners deemed especially dangerous by the sentencing judge from being released almost immediately on furloughs, work releases, unsupervised and open-ended work details, and other euphemistic devices by which convictions and sentences could be effectively cancelled.

Atuatasi v. Moaali'itele, 8 A.S.R. 53, 57, aff'd sub. nom. Atuatasi v. American Samoa Govenment, 9 A.S.R.2d 67 (1988). Yet this is the very complaint the present defendant makes about his sentence: that it denies him access to "rehabilitative programs" by which he would be allowed "unsupervised release from the correctional facility." (Memorandum in Support of Motion for Reconsideration, p. 4.) It was precisely such forms of "rehabilitation" that the legislature gave the Court the power to control in 1987. To argue otherwise "entirely ignores the history of this enactment." Atuatasi v. American Samoa Government9 A.S.R.2d at 78.(2)

Defendant's argument also appears to rest on the erroneous assumption that no punishment which is "retributive" can also be "rehabilitative." On the contrary, we believe that allowing this defendant to come and go freely from the correctional facility---as still appears to happen even with the most violent criminals when the conditions of their [17ASR2d123] confinement are left in the sole discretion of prison officials(3)---would neither punish nor rehabilitate. While this defendant clearly needs help, much of the help he needs is to be taught that human actions have consequences. In our judgment, imposing a moderately serious punishment (one year and eight months of actual detention) for a most serious crime is more likely to bring about a genuine change of heart in this defendant than allowing him a chance to secure early release by "playing the system." Moreover, it is especially important in our judgment that defendant have no contact during the next few years with his victim or with her family. All these goals will be better served, in our judgment, by the sentence we imposed than by a "straight" sentence of five years with no conditions.(4)

[17ASR2d124] Finally, defendant notes that Atuatasi "did not address the constitutional issues raised by the [probationary detention] statute." He does not, however, go on to tell us what these issues might be.

The only trace of a constitutional attack on A.S.C.A. § 46.2206 in defendant's motion or supporting memorandum is a closing observation to the effect that "[i]n the end it is impossible for an individual defendant to determine from the written law what the punishment for crime will be and what rehabilitative help he will be able to receive." This observation has very little to do with the particular statutory provision to which defendant takes exception; rather, it applies as well or nearly as well to almost any modern statutory scheme providing for the punishment of crimes. The laws of American Samoa, without A.S.C.A. § 46.2206, provide not only for imprisonment and fines but also for parole and probation, which may be subject to a variety of conditions, some specified in the statute, some not. The law also provides for pardons at the entire discretion of the Governor. There is no way that a person who is thinking about committing a crime can know in advance exactly which combination of these punishments and exceptions to punishments he may receive.

What everyone can know, and is entitled to know, is that if he is convicted of a class D felony he can be sentenced to serve no more than five years in jail and to pay no more than a $5000 fine. Whether a particular person will actually serve or pay less than these maximum amounts is subject in varying degrees to the discretion of the Court, of the Governor, of the parole board, and of the people who happen to be running the prison at the time the person is sent there. The "unpredictability factor" posed by the additional discretion given the Court by A.S.C.A. § 46.2206 is certainly no greater than that inherent [17ASR2d125] in the pardon power, in the institution of parole, or in probation itself. Defendant had exactly the same notice at the time he committed his crime that he might receive probationary detention as that he might be sentenced to pay a fine or that he might become eligible for parole and yet not be paroled. That he could not know for sure about any of these things does not render the statutes governing them unconstitutional.(5)

IV. Departure from the Territory as a Condition of Probation

At the conclusion of his twenty months of detention in the correctional facility, defendant is to serve the remainder of his probationary period (about three years and six months) outside the Territory. Defendant now raises a host of objections to this condition.

Many of these objections find some support in cases decided by United States courts, which have generally held that it is beyond the power of a sentencing court to order that the defendant leave the jurisdiction.(6) Such orders, however, have been a regular feature of [17ASR2d126] criminal sentences in American Samoa for many years.(7) There are no reported judicial opinions explaining why American Samoa does not follow the majority rule in the United States; this is because the local practice does not appear to have been challenged until quite recently.(8) We must therefore canvass the reasons adduced for the majority rule in order to decide whether these reasons are persuasive in light of the laws and social conditions in force in American Samoa. [17ASR2d127]

A. Cruel and Unusual Punishment

One case, and only one, has held that a condition requiring a defendant to leave the United States is unconstitutional as "either a 'cruel and unusual' punishment or a denial of due process of law."  Dear Wing Jung v. U.S., 312 F.2d 73, 76 (9th Cir. 1962). The court stated that the condition was "equivalent to a 'banishment' from this country and from [appellant's] wife and children, who will presumably remain here." Id. The holding was announced without further analysis and without citation of precedent or of any other source tending to shed light on whether such "banishment" was forbidden by the Eighth Amendment to the United States Constitution. The Court appears to have regarded it as self-evident that the treatment afforded the appellant, apparently an alien of Chinese extraction who had been convicted of making a false statement in an immigration hearing, was outrageous and therefore unconstitutional.

As has been noted by later courts and commentators, the "cruel and unusual" part of the Dear Wing Jung holding is without precedent and is difficult to reconcile with the historical bases of the Eighth Amendment. See, e.g.U.S. v. Martin, 467 F.2d 1366, 1368 (7th Cir. 1972) (citing Gordon & Rosenfeld, Immigration Law and Procedure, at § 9.22); 21 Am.Jur.2d, Criminal Law §§ 624, 627. Indeed, far from being considered cruel and unusual at common law, "banishment and deportation to criminal colonies was a common method of punishment in England." People v. Baum, 231 N.W. 95, 96 (Mich. 1930); see Annot., 70 A.L.R. 100. Moreover, "[d]eportation of the nationals of foreign countries is a popular method of punishing undesirable aliens who commit crimes against the United States." Baumsupra, 231 N.W. at 96.

This last observation by the Baum court is important. If it were truly "cruel and unusual" to send someone back to his home country because he had committed a crime, then such a requirement should be no less unconstitutional if imposed by an executive or administrative agency than if by a court. Yet the United States Immigration and Naturalization Service regularly deports people because they have been convicted of crimes.See 8 U.S.C. §§ 1251(a)(5), (11), (14), (15), (16). So does the Attorney General of American Samoa upon the recommendation of the territorial Immigration Board. See A.S.C.A. §§ 41.0616(4), (6), (9), (10), (11), (16). Although there are, as we shall discuss, persuasive arguments that judicial "banishment" of a criminal may be importantly different than "deportation" of the same criminal by an immigration board, these arguments have more to do with the sources and limitations [17ASR2d128] of institutional authority than with the nature of the punishment itself. The mere fact that a person who has committed a serious crime should be required on that account to return to his own country is not, absent extraordinary circumstances, either cruel or unusual.

B. Other Constitutional Arguments

Much the same can be said for defendant's contention that requiring him to spend part of his probationary period outside the Territory violates his "due process rights, travel rights, and. ...equal protection rights." Defendant provides neither analysis nor authority for these assertions; deportation of convicted criminals under the immigration laws has consistently withstood challenges on all of the grounds now raised.

Equal Protection

Under the law of the United States, "the alien in several respects stands on an equal footing with citizens, but in others has never been conceded legal parity with the citizen." Harisiades v. Shaughnessy, 342 U.S. 580, 586 (1952) (footnotes omitted). Matters having to do with entering. remaining in, and leaving the country are perhaps the most important area of inequality; unlike the citizen, the alien finds himself in an "ambiguous status within the country," the continuation of which "is not his right hut is a matter of permission and tolerance." Id. at 586-87. Thus, it is well settled that the federal government can deport an alien for committing a crime or engaging in other undesirable conduct, although a citizen who did exactly the same thing would be allowed to remain in the country. Seee.g.HarisiadessupraLeTourneur v. Immigration and Naturalization Service, 538 F.2d 1368 (9th Cir. 1976); Van Dijk v. Immigration and Naturalization Service, 440 F.2d 798 (9th Cir. 1971). Indeed, it is now generally recognized that judicial invalidation of certain state laws discriminating against aliens has more to do with "the paramount federal power over immigration and naturalization" than with equal protection proper. Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976); see Toll v. Moreno, 458 U.S.1 (1982);Foley v. Connelie, 435 U.S. 291 (1978).

American Samoa, unlike the fifty states and the other territories of the United States, is specifically excluded from the scope of the federal immigration laws and has, pursuant to authority delegated by Congress, enacted its own such laws. See 8 U.S.C. § 1101(13), (29), (36), (38); A.S.C.A., Title 41. Unlike a state government, which is [17ASR2d129] precluded by "the paramount power over immigration and naturalization " from having its own immigration laws, the government of American Samoa has the same authority ---leaving aside for the moment the question of which branch or branches of government may exercise such authority ---to discriminate between citizens and aliens as is possessed by the government of the United States. With respect to deportation for crime, the territorial government has long exercised such authority; the present deportation statute and its predecessors are similar in form and substance to the federal statute. See A.S.C.A. §§ 41.0616-17; 9 A.S.C. § 377 (1973 ed.); XXIV Code Amer. Samoa, 1961 ed., § 24.0247, enacted by P.L. No. 12-50 (1972); XXIV Code Amer. Samoa, 1961 ed., § 24.0117 (repealed 1972).

Assuming but not deciding that the federal equal protection clause is susceptible of any application at all to the immigration laws of American Samoa,(9) neither that provision nor any paramount interest of the federal government is offended by treating aliens differently from citizens with respect to the right to remain in the Territory after committing a crime.(10) [17ASR2d130]

Due Process

For the same reasons that requiring an alien to leave the country does not deny him the equal protection of the laws, "there is no substantive due process right not to be deported." Linnas v. Immigration and Naturalization Service, 790 F.2d 1024, 1031 (2d Cir. 1986); see Harisiadessupra, 342 U.S. at 590-91. Defendant does, of course, have the right not to have his liberty denied or abridged without procedural due process, but he has not suggested any defects in the procedure by which he was sentenced. Nor can we think of any. Defendant was represented at all stages of this criminal proceeding by competent counsel. He was provided with notice and an opportunity to be heard: the pre-sentence report recommended that defendant be required to serve part of his probation outside the Territory and gave specific reasons for this recommendation. Counsel had access to the pre-sentence report before the hearing and did in fact address some aspects of the report. By means of the present motion, moreover, defendant has been afforded a second opportunity to have the Court consider de novo all his objections to the sentence. Due process has been satisfied. [17ASR2d131]

Right to Travel

It is undeniable that the defendant's sentence restricts his freedom to travel, as criminal sentences tend to do. What has been called the "right to travel," however, has generally been grounded in the Privileges and Immunity Clause of the United States Constitution (art. IV, § 2) or in other provisions having to do with the peculiar inappropriateness of barriers to free passage of goods and people within a federal union. See generally Zobel v. Williams, 457 U.S. 55, 71-81 (1982) (O'Connor, J., concurring); Lutz v. City of York, 899 F.2d 255, 258-66 (3d Cir. 1990), and authorities cited therein. Perhaps the central feature of the "unorganized andunincorporated " status of American Samoa, however, is that the Territory is not part of the federal system and is not intended for incorporation therein.(11) This Territory has its own immigration laws, its own customs authorities, even its own tariffs on products imported from the United States. If the constitutional provisions giving rise to the" right to travel" applied in American Samoa and meant the same things here that they do in New York or Minnesota, all these laws would be unconstitutional.

Moreover, the United States Supreme Court "has often pointed out the crucial difference between the freedom to travel internationally and the right of interstate travel." Califano v. Aznavorian, 439 U.S. 170, 176 (1978) (emphasis added). The right to travel among the several states is a substantive constitutional right and is "virtually unqualified," but "[b]y contrast, the 'right' of international travel has been considered to be no more than an aspect of the 'liberty' protected by the Due Process Clause." International travel can therefore "be regulated within the bounds of due process." Id. (quoting Califano v. Tones, 435 U.S. 1, 4 n.6 (1978)). Insofar as we can determine, the only cases in which restrictions on international travel have been found to deny due process have involved restrictions apparently designed to restrict disfavored speech or political association. SeeAptheker v. Secretary of State, 378 U.S. 500 (1964); Kent v. Dulles, 357 U.S. 116 (1958). No such values are implicated here. [17ASR2d132]

Finally and most importantly, the freedom to travel is perhaps the most obvious of the freedoms a person is liable to lose when he is convicted of committing a crime. It would not be an unconstitutional abridgement of a convict's right to travel if he should be sentence to serve five years in a penitentiary that happened to be outside the Territory. Olim v. Wakinekona, 461 U.S. 238 (1983). Nor, as we have observed, would it violate such a right if the immigration authorities were to deport him immediately upon his release from prison and forbid him ever to return. Harisiadessupra. A fortiori, a requirement that a convict spend part or all of his probation outside the Territory does not unconstitutionally abridge any such right. CfBagley v. Harvey718 F.2d 921, 924-25 (9th Cir. 1983):

There can be no doubt that [defendant's] right to interstate travel was extinguished upon his valid convictions and imprisonment. ...Since parole in a foreign state is clearly less punitive than imprisonment in a foreign state, it cannot be deemed unconstitutional.

See also People v. Ison, 346 N. W.2d 894, 896 (Mich. App. 1984) (citations omitted):

A criminal conviction constitutionally deprives the defendant of much of his liberty; convicts retain some constitutional rights, but those rights are subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. ...A probationer retains only those rights which are consistent with his probationary status. ...A condition of probation restricting the probationer's right to travel may therefore be imposed without violation of the constitution.

In sum, the problem with "judicial banishment" is clearly not that it violates an individual right of the convict to remain in the jurisdiction where he committed his crime. Rather, the problems found by United States courts have had to do with federalism and with the allocation of powers among the co-ordinate branches of government. [17ASR2d133]

C. Federalism, Separation of Powers, and Statutory Interpretation

State courts are agencies of state governments, which have no power to regulate interstate or international immigration. Neither a state court nor any other state agency can require people to leave the country, because the Constitution commits exclusive power over international relations to the federal government. Nor can such an agency require people to leave the state, because open interstate borders are deemed an essential element of the federal union ordained by the Constitution:

The American states are not supreme, independent, sovereign states in relation to those things delegated by the people to the federal government, though the states are all in the Union on the basis of equality of political rights. Independent national states have a right to protect their political institutions, their people, and their independent existence by excluding legally and forcibly undesirable foreigners. This is the basis of the laws of the United States restricting immigration. To permit one state to dump its convict criminals into another would entitle the state believing itself injured thereby to exercise its police and military power, in the interest of its own peace, safety, and welfare, to repel such an invasion. It would tend to incite dissention, provoke retaliation, and disturb that fundamental equality of political rights among the several States which is the basis of the Union itself.

Baumsupra, 231 N.W. at 96.

Although American Samoa is not supreme, independent, or sovereign, it does bear a different relation to the federal union than do the several states of that union. Some aspects of this relationship would appear disadvantageous: for instance, American Samoans have no voice in the election of the President or of voting members of Congress, cannot generally travel to the United States without passports, and may be required to pay United States customs duties on goods they bring into the United States. In other respects this unique relationship permits governmental institutions in American Samoa to do things that cannot be done by equivalent institutions of state government. Thus, for example, the High Court of American Samoa, like the federal courts of the United States but unlike any state court, has admiralty jurisdiction; the territorial [17ASR2d134] Senate is a council of chiefs selected by traditional processes rather than by direct popular election; and. as we have already observed. the territorial government can and does regulate immigration and travel, not only betweenAmerican Samoa and the United States but also between American Samoa and foreign nations.

With respect to questions having to do with travel in and out of the jurisdiction. thereforethe High Court of American Samoa is not in the position of a state court. This Court is an agency of a government which does have the power to "exclud[e] legally and forcibly undesirable foreigners."  Baum, supra, 231 N.W. at 96. In this respect the High Court is analogous to a federal court.

There appears to be no constitutional obstacle to an order by a federal court that probation be served outside the jurisdiction in which the crime was committed, and federal statutes clearly contemplate such orders.(12) InBagleysupra, a federal parolee was required to move from Washington to Iowa, apparently because he had threatened his former wife and the witnesses at his trial. In United States v. Cothran, 855 F.2d 749 (11th Cir. 1988), the court of appeals held that a federal district court had not abused its discretion by requiring a probationer who had "frequent[ed] many high crime areas" in his home county to remain outside the county for two years unless permitted by his probation officer to return.(13)

Federal court orders that a probationer remain outside the United States during the term of probation. however, have been held to be outside the scope of judicial authority. United States v. Jalilian, 896 [17ASR2d135]F.2d 447 (10th Cir. 1990); United States v. Abushoor, 761 F.2d 954 (3d Cir. 1985); United States v. Hernandez, 588 F.2d 346 (2d Cir. 1978); United States v. Castillo-Burgos, 501 F.2d 217 (9th Cir. 1974).This is because "Congress has enacted a detailed scheme for the admission and deportation of aliens" and has "placed the Attorney General in charge." Hernandezsupra, at 351; see Jaliliansupra, at 448-49; Castillo-Burgossupra, at 219-20.

The federal immigration law charges the Attorney General with the administration and enforcement of the chapter of the United States Code pertaining to immigration d also of all other laws "relating to the immigration and naturalization of aliens." Hernandez, supra, at 351, quoting 8 U.S.C. § 1103(a). Significantly, the federal statute also provides:

In any case in which an alien is ordered deported from the United States under the provisions of this chapter, or of any other law or treaty, the decision of the Attorney General shall be final.

8 U.S.C. § 1252 (emphasis added). This final authority of the Attorney General would appear to apply even when someone has been ordered to leave the country under an "other law or treaty" not specifically pertaining to immigration or naturalization. If, therefore, a federal court order that a probationer leave the country should be regarded as a lawful exercise of judicial authority under the probation statute, the order might then be subject to review and possible veto by the Attorney General under 8 U.S.C. § 1252. This scenario "raises difficult questions about possible conflicts between judicial independence and the Attorney General's final authority under section 1252" and therefore "suggests that the probation statute. ..should not be read to authorize de facto deportation orders." Jaliliansupra, at 448-49.

It is important to notice that the exclusive power of the Attorney General over admission and deportation of aliens, although sometimes described in terms of "separation of powers," is a matter of statutory interpretation rather than constitutional command. The federal cases do not stand for the proposition that there is anything inherently "executive" rather than "judicial" about ordering a convicted criminal to leave the country. On the contrary, "Congress might have given the courts a role in determining deportability" but "chose not to." Hernandezsupra, at 351. [17ASR2d136]

The federal decisions, with the exception of Dear Wing Jung, also seem to recognize that in the absence of a pre-emptive commitment of exclusive power to another branch, an order that a probationer move from the scene of his crime to the place of his birth and citizenship would at least sometimes be within the general authority of courts to grant probation "upon such terms and conditions as the court deems best." 18 U.S.C. § 3651,quoted in United States v. Martin, 467 F.2d 1366, 1368 n.4 (7th Cir. 1972); see also Hernandezsupra, at 351-52.(14) Indeed, federal appellate courts have sometimes upheld conditions of probation that required the probationer to leave the country "voluntarily" in exchange for a suspension of part or all of the sentence, provided that the probationer is not barred from re-entering the country during the probation period with the permission of the immigration authorities. MartinsupraUnited States v. Janko, 865 F.2d 1246 (11th Cir. 1989); see United States v. Mercedes-Mercedes, 851 F.2d 529 (1st Cir. 1988) (court could forbid alien probationer who had left the country from re-entering without permission of the "pertinent legal authorities" but could not give the probation officer a veto power over such re-entry). Moreover, the judicial power over probation has generally been found broad enough to validate conditions that were quite onerous and quite restrictive of what would otherwise have been the probationer's rights under other laws, provided that such conditions were reasonably calculated either to rehabilitate the defendant or to protect the public. See, e.g.United States v. Tomy, 605 F.2d 144 (5th Cir. 1979) (probationer barred from being a candidate for public office); United States v. Tolla, 781 F.2d 29 (2d Cir. 1986) (probationer barred from teaching religion to young people).

The decisions holding that this otherwise broad power stops at the water's edge have relied not only on the explicit language of the federal immigration statutes, but also on a long and unbroken tradition that the power to expel aliens is" a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Jaliliansupra, at 448 (quoting Fiallo v. Bell[17ASR2d137] 430 U.S. 787, 792 (1977)); see Hernandezsupra, at 351. This tradition, in turn, has to do with the relationship of immigration policy to" our foreign relations and the national security." Galvan v. Press, 347 U.S. 522,530 (1954).Indeed,

any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.

Harisiadessupra, 342 U.S. at 588-89.

The situation of American Samoa differs from that of the United States in two important respects. In the first place, there is no equivalent in our immigration statutes to 8 U.S.C. § 1252, the provision giving the Attorney General power to review deportation orders even when they arise under "other laws and treaties" not directly concerning immigration or naturalization. The territorial immigration statute does give the Attorney General power to "enforce and administer" those laws that do pertain to immigration and to the status of aliens, and also provides that the procedures set forth therein shall be the exclusive method for "determining the deportability of any person under this chapter." A.S.C.A. §§ 41.0103(a), 41.0614 (emphasis added). The territorial statute is altogether silent about whether anyone might ever be required to leave the Territory as a result of a procedure authorized implicitly or explicitly by some other statute. It is far from clear that the Attorney General's power to administer those laws pertaining directly to immigration should be read to limit any power the courts would otherwise have to grant probation subject to reasonable conditions as authorized by A.S.C.A. § 46.2205.

Moreover, the tradition here with respect to judicial involvement in immigration matters is quite different than the tradition in the United States. The High Court of American Samoa has frequently imposed residence outside the Territory as a condition of probation or suspension of sentence at least since 1964---before the enactment of the present [17ASR2d138] immigration code or its immediate predecessor and before the promulgation of the territorial constitution.(15)

This difference between the historic allocation of authority among the co-ordinate branches of government in American Samoa and among their counterpart institutions in the United States may reflect a recognition that the territorial immigration laws have far more to do with domestic policy than with international relations. The concerns that gave rise to the tradition of exclusive control by the political branches in the United States, having to do with treaties and wars and insurrections, do not weigh heavily here; although the Territory has its own customs and immigration laws, its foreign relations generally are conducted by the government of the United States.

The sole stated purpose of the territorial immigration statute is to preserve the "limited land resources, water, sewage facilities, and educational and economic opportunities" on the seventy-six square miles that compriseAmerican Samoa. A.S.C.A. § 41.0201. Whether the admission, exclusion, or deportation of a particular person would suit this purpose is a policy judgment left in large measure to the discretion of the executive branch. Court orders with respect to probation are designed to realize a different and substantially unrelated set of policies: the protection of the public and the rehabilitation of offenders. The Court has neither competence nor interest in second-guessing the judgment of the immigration authorities on whether the presence of a particular person represents an efficient allocation of economic resources. The sentencing judge is, however, uniquely well-situated to know whether a particular offender needs to be insulated from his past environment, his associates, his victim, or those who assisted in his prosecution and how, under the particular circumstances of his case, best to assure such insulation.

The executive power to deport "undesirables" and the judicial authority over probationers differ markedly not only in purpose but also in scope. Persons deemed deportable under the immigration statute are almost invariably deemed excludable from readmission. See A.S.C.A. §§ 41.0615-41.0616. Such persons may, however, in many [17ASR2d139] circumstances be readmitted at the discretion of the Immigration Board and the Attorney General. See, e.g., A.S.C.A. §§ 41.0613, 41.0617. The practical result is that the Attorney General often has discretion to deport someone and keep him out for life. The Court's power over probationers, in contrast, is strictly limited to the term of the probation, which may not exceed five years. A.S.C.A. § 46.2204. At the end of this time the probationer may be readmitted by the Immigration Board and the Attorney General whether or not the Court considers readmission to be a good idea.

There is, in other word, no necessary conflict between the two statutory schemes relating to probation and to immigration, although they may sometimes generate similar results. The very worst that can be said is that some probation orders might seek to reform an offender or to protect his victims at the expense of what would otherwise be considered an optimal allocation of water, sewage facilities, or educational opportunity; or that some administrative deportation orders might seek to conserve such resources by ridding the Territory of convicts who, from the standpoint of rehabilitation and public protection, might just as well be allowed to stay. These risks are a far cry from the spectre of interference with "foreign relations, the war power, and the maintenance of the republican form of government." Harisiadessupra, 342 U.S. at 588.

In any event, the judiciary has exercised this facet of the probation power for a period spanning at least ten Chief Justices, even more Attorneys General, and any number of Legislatures. Its exercise has had but little quantitative effect on immigration policy taken as a whole, but has figured importantly in the administration of justice. In American Samoa, as in the United States, "the slate is not clean." Galvan v. Presssupra, 347 U.S.at 531.

Since 1964 the Fono has substantially revised and/or recodified the immigration statutes on at least eight occasions. Act of 10 Jan 1972, P.L. No. 12-50; Immigration Act of 1984, P.L. No. 18-52; P.L. No. 10-65 (1968); P.L. No. 11-58 (1969); American Samoa Criminal Justice Act of 1979, P.L. No. 16-43 § 2 (1979); P.L. No. 18-16 § 1 (1983); P.L. No. 20-15 § 1 (1987); P.L. No. 20-56 (1988). It would be fatuous to suppose that the members of the Fono have been unaware during all this time of the frequent and open resort by the judiciary to conditions of probation such as the one to which defendant now objects. Had the Fonodisapproved of this long-standing judicial application of the probation statute (or of the equally obvious practical construction of the [17ASR2d140] immigration statute as imposing no restriction on judicial power to prescribe the conditions of probation), it had the power to abolish the practice by statute. On the contrary, however, the only legislative actions that can be construed as expressing legislative approval or disapproval of judicial policy with respect to probation were the 1983 and 1987 amendments to A.S.C.A. § 46.2206. These amendments sought explicitly to increase the flexibility afforded the judiciary with respect to probation, and implicitly abolished any previous requirement that terms of probation be designed exclusively to rehabilitate. See Atuatasisupra, 9 A.S.R.2d at 78.

Legislative inaction in such circumstances strongly suggests agreement with, or at least acquiescence in, the judicial interpretation of the laws in question. See Bob Jones University v. United States, 461 U.S. 574, 600-01 (1983). When the legislature re-enacts a statute or adopts amendments to it "without a suggestion of disagreement" with a prior judicial construction, there is an even stronger presumption that the legislature has adopted the prior construction. Union Electric Co. v. Illinois Commerce Commission, 396 N.E.2d 510, 518 (III. 1979); see Merrill Lynch Pierce Felmer & Smith v. Curran, 456 U.S. 353, 382 n.66 (1982), and authorities cited therein; 2A Sutherland Statutory Const. §§ 49.03-05, 49.09-10 (4th ed. 1984).

The practical construction long placed on the American Samoa probation and immigration statutes,(16) together with the Fono's conspicuous failure for least a quarter of a century to restrain the Court from imposing conditions like the one now at issue, convince us that such conditions encroach neither upon the legislative power to prescribe punishment nor upon the powers delegated to the executive branch by the immigration statute.

D. Public Policy

Having determined that the disputed condition of defendant's probation is neither unconstitutional nor prohibited by law, we are left to decide whether such a condition is a reasonable exercise of our probation power.[17ASR2d141]

The reported opinions rejecting "judicial banishment" as a sentencing option seem to have been motivated not so much by the specific constitutional and statutory arguments raised therein as by related questions of public policy. Some courts have gone so far as to lay down a rule that it is always contrary to public policy for one jurisdiction to "dump" a convict on another. Seee.g.State v. Doughtie, 74 S.E.2d 922 (N.C. 1953); Johnson v. State, 672 S.W.2d 621 (Tex. App. 1984). The forcefulness with which this rule is stated tends to vary inversely with the analysis offered in its support; in most cases the court simply invokes a term such as "dumping" or "banishment" and considers the point won. Seee.g.Dear Wong JungsupraJohnsonsupra. In other cases, however, the anti-dumping rule has been explained by reference to three main arguments:

1) That requiring a person to leave or stay out of the state is inconsistent with federalism. This concern was best articulated by the Michigan court in Baum, supra, discussed in Part IV(C) of the present opinion.

2) That such a condition cannot be consistent with rehabilitation, since the Court cannot supervise the probationer once he is outside the Court's jurisdiction, and cannot be consistent with public protection, since the probationer is no less likely to commit crimes in one jurisdiction than in another. See Abushaarsupra, at 761 F.2d at 959- 60, and authorities cited therein.

3) That "banishment, " although perhaps not a cruel and unusual punishment within the meaning of the Constitution, is nevertheless a harsh one. "Through the ages the lot of the exile has been hard." Doughtiesupra, 74 S.E.2d at 924; see Abushaarsupra, 761 F.2d at 959.

For reasons we have discussed, federalism is not a major concern in American Samoa. It is not a concern at all in the present case, since the defendant would appear ineligible for admission into the United States (see 8 U.S.C. § 1182(a)(9)) and will presumably return to his native Western Samoa.

The remaining arguments are not without force, but they state only one side of the case and they depend heavily on the circumstances.

One of the most important circumstances of the present case is that the defendant chose to commit his crime in a tiny jurisdiction in [17ASR2d142] which, if neither incarcerated nor "banished," he is virtually certain to have frequent chance encounters with his terrified fourteen-year-old victim and with members of her family. The condition that defendant leave the Territory was imposed by the Court primarily in the belief that the young victim of this crime is entitled to a longer respite from contact with the defendant than can be afforded by the twenty-month detention period. This concern is manifestly related to public protection, at least in light of the pre-sentence investigator's findings about the victim's mental state. Although it is always possible that the defendant could commit another crime no matter where he might be, our primary concern at the time of sentencing was that the defendant would do further harm to his victim in American Samoa, whether or not he should commit another crime.

Nor is it always true that a condition can have no rehabilitative effect simply because it will not be administered by a probation officer. In this case it was deemed important for the defendant's own good to insulate him from contact with the victim's family and with his companions in crime.

Finally, the Court was of the opinion that a sojourn in his native village in Western Samoa might expose the defendant to a system of values more wholesome, and of social controls more effective, than those at work in his previous environment. Western Samoa is a more traditional country than American Samoa; it is more difficult there for a young man to avoid the demands of the extended family, church, and matai system, as the present defendant has been able to do thus far. His home life in the village of Fagatogo prior to his incarceration was almost certainly a major contributing factor to his alcoholism and to his related criminal conduct. We infer from the pre-sentence report that there are several extended families, if not in his native village of Lepa then elsewhere in Western Samoa, with whom defendant has a traditional right to live in exchange for service, obedience, and good conduct. We can do far more good for him by maximizing the likelihood that he will be exposed to a system that inculcates these virtues than by letting him resume his former life in Fagatogo subject to the requirement that he meet with a probation officer once a month.

Recent cases have recognized that rehabilitation may sometimes be served by keeping a person away from the environment that contributed to his crime ---and that putting some distance between the criminal and his victim may be justified as reasonably related to public protection. Thus, in Cothransupra, a probationer was required to stay [17ASR2d143] out of his home county, which includes Atlanta, because his presence in certain criminal haunts in that city had contributed to his criminal behavior. In Bagley, supra, the court upheld a decision by parole authorities to require a parolee who had threatened his former wife and certain witnesses against him to move from Washington to Iowa. In Cobb v. State, 437 So. 2d 1218 (Miss. 1983), the probationer was required to stay 125 miles away from his home county for a period of five years; the defendant had been convicted of an aggravated assault upon a relative who lived three-eighths of a mile away from him, and the court found this proximity to be a likely source of further trouble among the relatives. See also State v. Collett, 208 S.E.2d 472 (Ga. 1974) (probationer required to remain- outside seven-county area); Parrish v. State, 355 S.E.2d 682, 684 (Ga. App. 1987) (banishment of probationer from the judicial circuit upheld as "prompted by a rational concern for the safety of others in the community and for defendant's own safety"). The 1984 amendment to the federal probation statute, 18 U.S.C. § 3563(b)(14), also specifically recognizes that such conditions can be reasonably related to the purposes of probation.

A requirement that a probationer live outside American Samoa is equivalent in many ways to a requirement that he live outside a particular township or a very small county in the United States. The practical effect of the order in the present case is that the defendant will almost certainly reside sixty miles away on his native island of Upolu. Although there is an international border between Upolu and the adjacent island of Tutuila, the two islands share a common language, history, and culture. Our order that the defendant move from the relatively large, modern, and quasi-urban village of Fagatogo to Lepa or some other village in Western Samoa is calculated to achieve roughly the same effects as the requirement that the defendant in Cothran move from Atlanta to a neighboring rural or suburban county.(17) [17ASR2d144]

Nor (although this would not necessarily be dispositive) can we discern that the condition will bring about any important changes in defendant's immigration status. He would presently appear to be deportable under A.S.C.A. § 41.0617(4) as a person who has been "convicted of a crime involving moral turpitude committed within 5 years after any entry, " and if he were out of the Territory he would be excludable as a convicted felon under A.S.C.A. § 41.0615(8). In either event the Attorney General may have discretion to allow him to return and/or remain. See A.S.C.A. § 41.0617. Any other practical effects on defendant's life are likely to be wholly salutary.

We conclude that the condition that defendant reside outside the Territory during part of his probation is not unduly harsh and is reasonably related to the purposes of probation. We therefore decline to revoke the condition.

V. Conclusion and Order

Insofar as the motion is intended as a motion for new trial under A.S.C.A. § 46.2402(a) or is intended to be in lieu of such a motion, it is denied for want of jurisdiction.

Insofar as the motion is addressed to our discretion under A.S.C.A. § 46.2205 to revoke or modify the conditions of probation at any time during the period of probation, it is denied on the merits.

It is so Ordered.

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1. In Fanene the defendant argued that he had the right to appeal an allegedly unlawful sentence some six months after it had been announced, on the ground that under the Revised Constitution of American Samoa "the legislature had no power to enact C.A.S. 3.0502 [the then-applicable thirty-day time limit for appeals] or any laws governing the jurisdiction, operations or procedures of the Judiciary." 4 A.S.R. at 961. The Appellate Division rejected this contention and held that the sentence could only have been appealed within thirty days of the time it was announced. Id. at 964. The Appellate Division cited the ten-day motion for new trial statute, now codified as A.S.C.A. §§ 43.0802(a), as a further legislative restriction on the right to appeal, but found it inapplicable because it had been enacted subsequent to the date on which the judgment and sentence in the case then before the Court had been announced. Id. at 962-63.

2. In rejecting the contention that detention under A.S.C .A. §§ 46.2206 must be "rehahibitative" rather than "retributive," the appellate opinion in Atuotosi referred to the legislative history of the statute ''as detailed by the court below." 9 A.S.R.2d at 78. That account of the legislative history is reported in the trial court opinion at 8 A.S.R.2d at 60-It includes the observation that prior to 1987

[a] convict's access to various forms of early release depended more on having a personal relationship with some government official inside or outside the prison ---for a time it seemed that almost any official would do, and that almost every prisoner had some such relationship ---than with any formal criteria.

Id. at 60. The use of probationary detention in the present case, in order to deny a serious sex offender the possibility of such early and unsupervised release from incarceration, was squarely within the legislative mandate found by the trial and appellate courts in Atuotosi.

3. See, e.g.In re A Juvenile, UTC 103186 (partial transcript of Initial Appearance, November 28, 1990), in which the following exchange took place between the Chief Justice and a man who had accompanied his minor child to a traffic appearance:

THE COURT: Sir, what's your name?

MR. TALAMOA: Paulo Talamoa.

THE COURT: Aren't you supposed to be serving a court sentence at this time?

MR. TALAMOA: Yes, Your Honor. I've been released on work release, Your Honor.

THE COURT: Who released you on work release?

MR. TALAMOA: I do not have an understanding of that, but I think it's from the Commissioner and also from the Correctional Facility.