Volume 84 1975 > Volume 84, No. 1 > High court adjudication of chiefly title succession disputes in America Samoa, by Walter W. Tiffany, p 67-92
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HIGH COURT ADJUDICATION OF CHIEFLY TITLE SUCCESSION DISPUTES IN AMERICA SAMOA

Judicial systems modelled after those of Western countries are commonly found in the central government organisations of colonially administered areas. It is of considerable theoretical and practical importance to know how these introduced judicial institutions function because of their influence upon customary law and dispute settlement patterns. These introduced institutions also have implications for structural stability and change within indigenous social systems. This article discusses how the introduced court system of American Samoa has influenced the traditional procedures and criteria by which Samoan successors to chiefly or matai titles are chosen in the Territory of American Samoa. 1

EVOLUTION OF THE HIGH COURT IN AMERICAN SAMOA

On February 19, 1900, President McKinley of the United States directed that the islands of the Samoan group east of longitude 171 west of Greenwich be placed under the control of the Department of the Navy for the purpose of establishing a naval station on Tutuila Island. 2 The Secretary of the Navy ordered that the islands be governed by a commandant, and the first naval commandant, Commander B. F. Tilley, was instructed to establish “a simple, straightforward method of administration, such as to win and hold the confidence of the people. . . .” 3 The - 68 origins of the present court system in American Samoa can be traced to Tilley's Declaration of the Form of Government, which provided in 1900 for the establishment of a High Court in addition to local courts at the district and village levels. 4 Since the village and district courts have never at any time exercised jurisdiction over cases involving succession to chiefly titles, it will be necessary to examine only the organisation and operation of the High Court in this article.

Tilley's declaration proclaimed that judicial power of the United States Naval Station, Tutuila, was to be vested in a High Court, district and village courts.

The Commandant shall preside over the High Court with or without Associated judges or a Judge Advocate. . . . All judges and magistrates shall be appointed by the Commandant and shall hold Courts as directed by the Commandant. The office of Judge or Magistrate shall be permanent but the judge or magistrate may be removed or suspended from office by the Commandant for misconduct. . . . The High Court shall consist of the Commandant as President of the Court, two associate judges, and a judge advocate. The President alone or any two or more of whom may hold a Court as may be directed by the President, and the powers and rights of the associate judges and the judge advocate shall be defined by the President as the necessity of the case may require. . . . The High Court shall have exclusive jurisdiction over . . . all civil suits concerning real property in the United States Naval Station, Tutuila, and all rights affecting the same. . . .(5)

Tilley also proclaimed in 1900 that civil and criminal procedures in these courts were to conform with the principles observed by “. . . the Courts of Justice of the United States or as the case may require to the course of procedure and practice observed by and before United States Courts Martial.” 5

In 1906, Governor C. B. T. Moore 6 issued a “Regulation Concerning the Registration of Matai Titles in Tutuila and Manua”, which required that every person succeeding to a chiefly title after October 31, 1906 must notify the central government.

If the Secretary of Native Affairs is satisfied that the claimant to the title has a right to the same he shall, after thirty days notice, issue a certificate to the applicant stating the date of registration, and until the certificate of registration has been obtained no title shall be recognized. . . . In case of any dispute as to the succession of a Matai Title, the Secretary of Native Affairs shall not register the - 69 name of the claimant until the same shall be determined by law. 7

It was these two regulations issued by the executive branch in 1900 and 1906 which provided a legal framework within which title succession disputes could be referred to the central government for adjudication by the High Court.

The first codification of regulations and orders in force in American Samoa was ordered by Governor J. M. Poyer and published in 1917. 8 It contained no significant changes in the judicial system. A minor modification of High Court structure in the 1917 codification is a provision that the Governor can, if he wishes, designate someone else to be President of the Court, and this had become normal practice.

In 1930, the Governor issued a regulation which set up a Judicial Commission with authority to hear land and matai (chief) title cases. 9 The Commission was made up of 14 Samoan commissioners representing all counties of American Samoa. When disputes arose, a three-member Board of Judicial Commissioners was selected to hear the case and reach a settlement. One commissioner was chosen by each of the disputing sides, and the two commissioners chosen in this way then selected the third member of the Board; if the two commissioners could not agree, the third member was appointed by the Chief Justice of the High Court. The Board's decisions were not binding. Any dissatisfied party to the dispute had 15 days in which to appeal the Board's decision to the High Court, in which case the High Court was obliged to review the matter and make the final decision.

According to Felix Keesing, this scheme was originally proposed in 1927 by the American judge of the High Court, but it failed to win acceptance by the Samoan people.

Immediately the Commission was formed the Judicial Department was “flooded with letters” from litigants whose cases were pending in the court asking that their disputes be dealt with in the High Court before the American Judge instead of by such a Samoan body. In fact the months passed without any disposition being shown on the part of the Samoans to trust to the jurisdiction of their own leaders. 10

Consequently, the Judicial Commission was abolished, and all title cases were once again referred to the High Court for review and adjudication.

The first statutory constraint upon matai selection procedures which had enduring significance was made in 1933, when Governor Landen-berger issued Regulation Number Ten for insertion in future codifications. This regulation specified a list of minimal requirements that any Samoan must meet if he were to be eligible to succeed to a matai title. Before this - 70 1933 amendment, there were only two statutory constraints on High Court title decisions. A 1907 regulation required that a matai candidate be “a bona fide native of American Samoa” who had “resided continuously within the limits of American Samoa for five years immediately preceeding the vacancy of a title.” 11 Persons guilty of serious crimes were also banned from title-holding by a 1914 regulation. 12 The 1933 revision expanded this list to five eligibility requirements, so that after 1933 all candidates were required to meet the following qualifications:

  • (a) Must be of at least three quarters Samoan blood.
  • (b) Must have resided continuously within the limits of American Samoa for five years either immediately preceding the vacancy of the title, or before he becomes eligible for the title.
  • (c) Must live with Samoans as a Samoan.
  • (d) Must be a descendant of a Samoan family and chosen by his family for the title.
  • (e) Must have been born on American Samoan soil. 13

These five requirements, with minor alterations, have appeared in every codification to the present time. 14

It is apparent that these 1933 eligibility requirements provided only minimal guidance for the High Court in selecting matai successors. 15 By 1946, however, more specific statutory constraints on the court's selection procedures had been introduced. The 1946 codification states that the following considerations, in the priority listed, shall guide the High Court: (1) The preference of the majority of the family, (2) character of the candidate, (3) hereditary right, and (4) value of the candidate to the government. 16 In following sections of this article, I shall examine each of these items and consider the difficulties which the court has experienced in their application. I shall also note the circumstances which led to - 71 changes in the priority positions of these four considerations in the 1961 Code of American Samoa.

At the time of my first period of field work in 1969, court organisation and filing procedures were governed by the codification which had been completed in 1961. 17 The composition of the High Court included two American justices appointed by the Secretary of the Interior Department in Washington, D.C., in addition to four Samoan associate judges and four Samoan assessors who were all appointed by the Governor with the recommendation of the Chief Justice. The American justices received their appointments in accord with legal qualifications and political considerations, and they served at the pleasure of the Secretary of the Interior. 18 The Samoan judges and assessors were nominated by the Chief Justice, who selected holders of high-ranking titles that represented the administrative districts into which American Samoa is divided. None of the Samoan members of the court had completed any formal legal training.

The 1961 Code states that the High Court is divided into four divisions which hear probate, trial, appellate, and land and title cases. Until 1970, the land and titles division consisted of both American justices and all Samoan associate judges and assessors. Trials were heard by two assessors, two associate judges, and either the Chief Justice or the Associate Justice. Before 1970, the American justice presided and his opinion prevailed as the court decision at all times except when the four Samoan members unanimously disagreed, in which case their view prevailed. This arrangement changed significantly in 1970 with the adoption of a Samoan Senate bill which states that “in all controversies relating to matai titles the court shall only consist of three associate judges of the High Court.” 19 Consequently the American Chief Justice and Associate Justice are no longer eligible to hear matai title cases.

The procedure for claiming a title in American Samoa is governed by public law 11-117, adopted in 1970. Claimants file a written claim of succession with the territorial registrar. The claim must be accompanied by a petition signed by 25 blood members of the family who are at least 18 years of age, and the village chiefs must certify that the title in question - 72 is a traditionally recognised title of that village. 20 The petition must also state that a family meeting had been called to select the successor in accord with Samoan custom. The territorial registrar then posts a filing notice, in both the English and Samoan languages, on the courthouse bulletin board and in two public places. Counter-claimants and objectors have 60 days after the posting to challenge the registration of the title. Challenges are made by submitting to the registrar a petition signed by 25 persons related by blood to the title. If no challenges are made within 60 days, the registrar issues a certificate of registration to the applicant. If a dispute does arise, the High Court decides the case and informs the registrar which candidate is to be registered as the holder of that matai title. 21

EMERGENCE OF HIGH COURT DECISION CRITERIA

When the High Court assumed responsibility for deciding title disputes referred to it, the court's purpose was to maintain the peace by reaching settlements that were in accord with Samoan custom. The fact that the court did encounter difficulty in using traditional criteria to resolve succession disputes can be attributed to the nature of title cases themselves. Such cases typically involve recitations of complex family genealogies and traditions that cannot be verified; in addition, the traditional selection criteria were uncodified and existed only as a conflicting body of advice offered to the court. Hence, during the early period of the court, the American judges were obliged to rely on the advice of their Samoan advisers in deciding each title case as it arose.

In the written opinions which discussed each decision, the presiding American justice at each case cited the considerations which led the court to its decision. Over the years these opinions became precedents that provided principles used by future judges. New American justices, who were unfamiliar with Samoan custom in general and with title disputes - 73 in particular, would rely heavily upon these precedents, which thereby came to embody the judicial selection criteria that have guided court decisions to the present day. In this way, the court formalised the criteria that were to decide future title disputes. It is these court criteria that must be examined in order to determine how the presence of the High Court has influenced traditional matai recruitment principles.

In 1937, the Chief Justice drafted a resolution which was duly approved by the Annual Fono (Samoan Legislature) 22 and enacted into law by the Governor. This resolution specified the nature of the criteria that the court had been using for deciding title succession cases. Following adoption of the resolution, these criteria appeared as statutes in the amended 1937 Codification as follows:

In the case of matai name titles, the High Court shall be guided by the following in the priority listed:

  • (1) The wish of the majority of the family.
  • (2) The forcefulness, character, personality, and leadership of the candidate.
  • (3) The best hereditary right in which the male and female descendants shall be equal in the families where this has been customary; otherwise, the male descendant shall prevail.
  • (4) The value of the holder of the matai name to the Government of American Samoa. 23

Criteria two and four in the 1937 Codification were especially susceptible to problems of interpretation, because the statutes did not define what Samoans mean by “forcefulness”, “character”, and “value” to the government. Consequently the American judges and their Samoan advisers were obliged to specify what personality traits would be decisive for evaluating candidates under these two criteria. Not all of the resulting judicial interpretations of the personality and value criteria were inconsistent with traditional Samoan considerations. Many decisions, such as the following, raised no controversy at all.

The candidate for a matai title who is of most value to the government is one who will be able to weld his family into a peaceable and happy unit, who is a good leader, who is respected by members of his family, and who has a good character. 24

A judicial interpretation of criterion two was contained in the following decision:

A candidate who lives in the village of his family is more familiar with the needs and affairs of family members than a candidate who has never lived in the village. This is an important consideration in - 74 determining which candidate has the greatest capacity for leadership. 25

These interpretations of the character and value criteria were no doubt less controversial than other decisions which did, on occasion, reflect Western ideas that had no place in traditional Samoan thinking:

(X's) testimony reveals that he cut $12 worth of copra last year. (Y's) testimony shows that during the same time he cut $70. (X) makes no Samoan curios for export. (Y) does. (Y) pays his taxes on time and it has not been necessary to bring him into court to collect them. This cannot be said for (X). (Y's) example as a taxpayer is much better for the members of the family to follow than (X's). On the record of the testimony, it is apparent that (Y) will be more valuable to the government as the matai of the . . . family than (X). 26
It appears to the court that (X) has superior qualifications of leadership. He has been employed at various times by the Island Government as a foreman and had had charge at various times of as many as 100 labourers. 27
Again the value of a man to his government may be measured to a considerable extent by the quantity of goods produced by him. The country that has the greatest per capita production of goods is normally the best off economically. A man who produces $100 worth of taro a month is more valuable to his government, everything else being equal, than the man who produces only $25 worth. 28

Defeated candidates and their supporters objected to such decisions, and this may have been responsible for some of the Samoan opposition to the high priority given to these subjective criteria in the 1937 Codification.

To solve this problem, the Samoan Fono adopted a resolution in 1951 at its committee of the whole meeting. This resolution would have promoted the hereditary right criterion from third to first priority, at the same time removing the personality criterion from second to third place. By thus giving first priority to questions of genealogy and family support, it was hoped that future title cases could be decided with less weight being given to subjective interpretations of criteria two and four. The Governor vetoed this 1951 resolution because it was felt that decisions could not be based primarily upon descent and family support without first constructing family genealogies to determine descent lines and eligibility for family membership. Since competing candidates typically give contradictory family histories, and no records exist to substantiate conflicting claims, such genealogies would be impossible for the court to construct.

The Governor explained these reasons for his veto to the Fono, but the Samoan leadership continued to feel that the 1937 wording was inadequate. Consequently, the following joint session of the Fono passed another - 75 version of the same resolution which, in addition to reordering the statutory priority of the four criteria, also requested that the wording of the majority criterion be changed to read “the wish of the majority or plurality of those members of the family connected by blood in the title.” (The purpose of this change in wording was to make clear to the court that it was to disqualify the signatures of supporters who lived with family members or rendered service to a title but who lacked consanguinity with the descent group to which the title belonged.) Perhaps in response to the Fono's sustained pressure, the Governor did approve this revised resolution, despite the previously mentioned practical obstacles to implementing its provisions. As a result, the wording of the majority criterion was modified and it was given second priority to the hereditary right question, which was promoted to first position as requested by the Fono. These revisions, effected in 1952, remained in effect up to the period of field work in 1969, at which time the current statute appeared in the 1961 Code of American Samoa in the following form:

. . . the High Court shall be guided by the following considerations in the priority listed:

  • First: The best hereditary right in which the male and female descendants shall be equal in families where this has been customary, otherwise the male descendant shall prevail over the female.
  • Second: The wish of the majority or plurality of those clans of the family as customary in that family.
  • Third: The forcefulness, character, personality, and knowledge of Samoan customs.
  • Fourth: The value of the holder of the matai title to the family, the village, and the country. 29
CURRENT SELECTION CRITERIA IN TITLE CASES

These statutory criteria from the 1961 Code now guide the High Court in its selection of successors to disputed mataiships. These criteria, like those in earlier codifications, contain ambiguities, so that it will be necessary to examine some cases to see how the provisions of this statute have been interpreted and applied by the court.

Character and Value of Candidate

The problems of evaluating character and value (criteria three and four in the 1961 Code) were referred to earlier; this article will conclude with a 1969 case study which provides further examples of how the court can interpret these criteria. They have continued to be important and in some cases decisive, even though they have been demoted in the statutes to positions of lowest priority. This is evident from numerous decisions which are accompanied by judicial opinions espousing principles under which the personality and value criteria can prevail. For example, the decision in an appealed 1964 case states that “. . . although statute gives - 76 the priority of the four considerations, a person prevailing under both three and four has greater right than a person prevailing only under the first consideration.” 30 In another 1964 case the court ruled that a man was entitled to the title if he prevailed in three of the four points. 31 A year later, a man won in a different case because he prevailed only on points two and three while his opponent prevailed on point one. 32 No doubt the court itself would have preferred more precise criteria if they had been available; its continued reliance upon personality and value can perhaps be attributed to the unverifiable nature of the data required to make a determination under the legally prior heredity and majority support criteria. It is therefore of interest to study criteria one and two in the 1961 Code of American Samoa to see why they defied objective use.

Hereditary Right

The problems associated with the heredity question can readily be identified. Criterion one requires a determination on the basis of “hereditary right” with due regard for “customary” family procedures concerning male and female descendants, and this presents a number of difficulties. The obvious problem is one of establishing what is family custom and who has a hereditary right to family membership. 33 Cases are even recorded in which each of two candidates claims that the title-holder from whom the other traces descent had never existed. In the absence of written records, any genealogical conflicts in oral testimony can create an immediate stalemate on the heredity issue. In practice, the court may then have to overlook the issue and move on to criterion two. This problem was anticipated by the administration when the Annual Fono in 1951 passed its resolution to give first priority to the heredity issue; in his veto the Governor commented:

As worded, this part of the resolution would, as a practical matter, be unworkable and impossible of successful administration by the court. Most Samoan families have a number of branches. There is no recorded genealogy of the title available to the court. It must rely upon oral testimony based on traditions going back generations and sometimes even 100 or 200 years. Each branch or candidate usually has a different tradition to tell the court. There is no possible way for the court to verify the testimony of different branches or candidates on this matter, since there are no recorded genealogies on which to do it. 34

It was predictable, therefore, that promoting heredity to first priority in the statutes would fail to promote it to a corresponding position in judicial deliberations.

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What could not be predicted was the interpretation given to “hereditary right” by the court in those cases where the first criterion was actually applied. In most of these cases, the court interprets hereditary right very narrowly, so that a man is assigned one-half blood right if his father once held the title in question, and one-fourth right if his closest lineal relative to hold the title was a grandparent. The court can then rule that a man whose father held the title prevails over all others on this criterion, unless, of course, there are other candidates whose fathers also held the title. This interpretation is attractive, because in most cases the court can readily establish through oral testimony the relationship of each candidate to closely related previous title-holders.

However, an implication of such an approach to the heredity question is that it undermines a Samoan custom, practised by some Samoan descent groups, of rotating the title so that every branch 35 has its turn to hold the title. This traditional practice was not unknown to the court, which occasionally cited it to justify awarding a title to a man who might otherwise lose on the basis of other considerations. Examples are provided by court opinions attached to cases in 1949 and 1956:

When a Samoan family selects its matai, it frequently passes the title from branch to branch as a matter of fairness and to promote harmony in the family. 36
The court may find that due to the practice of alternating branches, a candidate of a branch whose turn it is may do better at unifying the family even though his character and capacity for leadership are slightly less than his opponents. 37

It is significant that this 1956 opinion went on to declare that such a “contract” to rotate the title among the branches would not be binding on either the court or future generations of that family, since such agreements are not recognised in the statutes. This judicial view of rotation agreements, together with the interpretation of hereditary right to favour blood sons of title-holders, could have the effect of making it increasingly difficult for descent groups to resolve their own title problems. This is because (1) in family negotiations a branch of the descent group is no longer secure in agreeing to yield its claim to a rival in return for assurances of future support, and (2) the longer a branch waits before it successfully claims the title, the weaker the hereditary rights of its members become in the eyes of the court. Each major faction in a title fight is therefore encouraged to defend its claims as long as possible, and the result is likely to be a court trial. All of this was not intended by the court, which only meant to avoid the problems of verifying oral family histories so that it could move on to the criteria listed in priority positions two through four. But it would appear that this judicial interpretation of the heredity - 78 issue could have the effect of accelerating the movement of title succession decisions out of the descent groups themselves and into the jurisdiction of the High Court.

Majority of Clans

The court has also encountered great difficulty in applying criterion two, “the wish of the majority or plurality of those clans of the family as customary in that family”. Again there is the usual problem of ascertaining the genealogical structure of the family in question, but in applying this criterion there is the further difficulty of establishing what the term “clan” refers to. The clan is a foreign concept that has no direct equivalent in the Samoan system of kinship based upon non unilineal descent. Since statute does not specify what constitutes a clan in Samoa, it is unclear how the court was expected to implement criterion two.

In this situation, the judges have had to interpret the meaning of “clan” for themselves. Some conflicting methods of determining the number of clans in a family were recorded in the decision to a court trial in 1963:

  • 1. The number of clans is set by the number of offspring of the original holder of the senior title. Each child who marries and has children constitutes a clan, regardless of how long the title exists or of how different families subsequently come into being.
  • 2. The number of clans is equal to the number of holders of the senior title, since the descendants of each holder constitute a separate clan.
  • 3. The number of clans is determined as in two, except that when two or more brothers or sisters hold the title consecutively they count as just one clan. 38

In this 1963 case, there were three candidates, two of whom claimed their family contained only one clan because the original holder had only one child (see definition one). But the third candidate said there were six clans, descended from a total of nine previous title-holders (see definition three). Hence in this case either definition presented insuperable difficulties for the application of the plurality rule. If only one clan existed, then the question of which candidate was supported by the majority of clans made no sense; if there were six clans tracing descent from nine previous holders, the court would have the arduous task of plotting the family's genealogy and of determining to which of the six clans each of hundreds of supporters belonged. Consequently, Associate Justice Roel chose to decide on other grounds by declaring that all three ranked equally in the number of supporting clans.

This solution to such problems was supported in the following year by Chief Justice Morrow in an opinion stating that “. . . where there is much contradictory testimony as to the wish of the majority of clans in the family as to who should be the matai title holder, the court may find candidates rank equally on this issue.” 39 The disadvantage of handling - 79 the problem in this way, however, is that the basic question of what constitutes a clan is left unanswered. The court simply moves on to criteria three and four, which require that the case be decided upon the personality and value issues.

The court does not always elect to pass over the majority of clans issue. When it does award this point to one of the candidates in a title case, it may do so by using the petitions which each candidate files with the court before the case is heard. If this alternate interpretation of the majority criterion is applied, the gross number of signers is tabulated for each candidate; again, no effort may be made to rule on what a clan is. Even so, the problems can be considerable, because of the large number of contested signatures on each candidate's petition.

For example, in a 1962 case involving two candidates, candidate A submitted a petition signed by 970 supporters and candidate B submitted a petition containing 354 signatures. Candidate B then alleged that (1) 929 signers on A's list were descended from two previous title-holders who never existed, (2) at least 31 other signatures were forged by one hand, and (3) in some instances both a husband and wife had signed. (Since members of the same family do not normally marry each other, both spouses would not be eligible to sign as consanguineal members of the same descent group.) If all these charges were true, than A would have been left with only ten acceptable signatures. On the other hand, candidate B fared little better in the face of A's charges that 334 signers of B's petition were descended from four previous holders of the senior title, none of whom ever existed according to the family traditions of A. If this were true, then B would be left with only 20 signatures himself.

The court might readily have moved on to criteria three and four, were it not that among the title-holders whose existence had been denied were the ancestors of the two candidates themselves. Hence, these charges had to be resolved, since they questioned the very eligibility of each candidate to seek the family's title. Further testimony failed to resolve the contradictions. Two old men of the village to which the title belonged were called to verify the existence of the previous holders, but they could only recall one of them and they didn't think he had ever held the title. Each candidate was also asked to prepare a list of all previous holders of the title: one gave ten names and the other listed nine, but only five names appeared on both lists. Finally the presiding American judge resolved the dilemma of this particular case in the following manner:

It is a long recognized general rule of evidence that all other things being equal, positive evidence is stronger than negative evidence. The rule is that where witnesses are of equal creditability and there are no extraneous circumstances affecting the weight of their testimony, testimony that a certain event happened or that the witness saw or heard something at a particular time or place is of more weight and value as evidence than testimony of other witnesses, with the same opportunities, who state that they did not see or hear anything at that time or place. (20 Amer. Jurisprudence 1037). . . . We think that - 80 the testimony of A that there was a [name of previous title holder] is of more weight than the negative testimony of B that there was not. We think that both of these witnesses are of equal creditability and we think that the positive testimony of B that there was [names of previous title holders] is of more weight than the negative testimony of A that no such [title holders] ever existed. 40

On the basis of this argument, the court ruled that candidate A prevailed on the second criterion because A had more acceptable signatures on his petition than candidate B.

It is apparent that this approach to the clan problem also has weaknesses, however, since the court again fails to determine “the wish of the majority or plurality of those clans of the family as customary in that family.” The court does not determine the existence of clan divisions within the family, and the final decision is based upon a legal reasoning which played no part in traditional decision-making and which is little understood by the Samoan participants in the case. On the other hand, without an established genealogy to work with, the court had no way in which to decide this criterion in accord with family custom.

The conflicting testimony in the cases reviewed above shows why the genealogical structure and the customary clan divisions of a Samoan descent group may be impossible for the court to reconstruct. When witnesses from the same family tell the court different versions of family traditions, the judges may be obliged to conclude that the truth can no longer be ascertained:

Needless to say, tradition handed down by word of mouth (and most family traditions, particularly that antedating 1900 when the Government was established and almost nobody could write) over a period 100 years or 200 years is subject to great error. If A tells B a story and B tells the same story to C 25 years later and C to D 25 years later and D to E 25 years later and E to F 25 years later and F to G 25 years later and G to H 25 years later and A could be brought back to life and H should tell him what he had heard from G, A would not recognize it as the same story he had told B 125 years before. This simple fact explains why one member of a family who has learned family tradition from one source may testify to an entirely different family tradition from that which will be testified to by another member of the same family who has learned the family tradition from another source. Both may be equally honest but may tell different stories. 41

In such cases, decisions cannot be reached on the basis of the legally prior criteria one and two. Only the considerations of lowest priority then remain; the court must evaluate the “personality” and “value” of each candidate and award the title on the basis of criteria three and four.

A CASE STUDY

An account of a modern title case which I observed in the course of field work in American Samoa will illustrate the court's role in title - 81 adjudications. This case study presents the sequence of events from 1964 to 1970 which surrounded the succession to one of the most influential titles of the Manu‘a District. When this title-holder died in 1964, a vigorously contested title struggle erupted. The dispute lasted five years and was climaxed by a public court trial that involved five different candidates who defended without compromise their personal claims to the title. The material presented with this case clarifies the nature of both traditional and High Court procedures by which high chiefly titles may be filled in American Samoa today.

Pretrial Negotiations

Following the death of High Chief Suafa 13 42 in December 1964, the first attempt to select a successor to the Suafa title was made in November 1965, when a Suafa family gathering (an ‘āiga potopoto) was held at Fitiuta village in Manu‘a. At that meeting, ‘āiga (family] members who belonged to the branch of the family which traced descent from the fourth holder of the Suafa title, Suafa 4, agreed to support the candidacy of F, but the descendants of the former second holder of the Suafa title, Suafa 2, were unable to unite themselves behind one man because several of its members (candidates A, B, C, and a fourth candidate who later withdrew) were uncompromising in insisting upon their own rights to the title. Because the branch of the family tracing descent from Suafa 2 was unable to resolve its own internal disagreements, the 1965 ‘āiga potopoto dissolved without selecting a candidate acceptable to all branches (faletama) of the Suafa ‘āiga. The location of these candidates within the faletama divisions of the Suafa ‘āiga are shown in Figure 1. 43

The next ‘āiga potopoto of the entire ‘āiga was not called until October 1967. During the intervening two years, a number of private meetings and negotiations were conducted by the contenders within the Suafa 2 faletama. The result was that B yielded his claim to A, after which C gave his support to A in the belief that A was to be the choice of the Suafa 2 faletama. Following the emergence of this apparent consensus within the Suafa 2 faletama, A notified the Suafa 4 faletama that all faletama might now meet together to discuss the merits of their respective candidates, A and F. Consequently, the second ‘āiga potopoto was called in 1967, attended in Fitiuta village by over 100 people. C did not travel to this meeting because he had already delegated his rights to A, and B also chose not to attend. Hence, the main contest at the 1967 meeting was between A, supported by the Suafa 2 faletama, and F from the Suafa 4 faletama. The meeting lasted from 6 p.m. to 6 a.m. of the following morning, at which time F agreed to withdraw his candidacy so that the family could unanimously

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Figure 1
Illustration

Abbreviated genealogy of Suafa 'āiga, showing faletama divisions and relationships of title candidates A through F.

Notes:

  • (1) The 'āiga is defined as a nonunilineal descent group whose members trace descent from the founder through male and/or female links (Sharon Tiffany 1975).
  • (2) The location of the first nine title-holders suggests the operation of a title rotation agreement among the faletama divisions of the 'āiga.
  • (3) There is disagreement among the six candidates regarding the number of faletama divisions within their family:
  • Candidate A stated that there were two faletama: X and Z.
  • Candidate B stated that there were three faletama: X, Y and Z.
  • Candidate C stated that there were three faletama: X, M and N.
  • Candidate D stated that there were three faletama: X, M and N.
  • Candidate E stated that there were three faletama: X, M and N.
  • Candidate F stated that there were three faletama: X, M and N.

These data suggest that a faletama division refers to a genealogically recognised group of kinsmen descended from the original founder's siblings and/or children (Ember 1959:575), with the modification that “. . . a descendant of the original founder's sibling or child may also serve as the apical point of reference of a faletama segment, particularly if that apical individual held a high ranking title” (Sharon Tiffany 1975).

- 83

agree upon A to be the new-title holder. At that time, A received 'ava 44 and everyone, including F, partook in the 'ava ceremony and signed A's petition. A considerable amount of beer may have been consumed during the course of the night; F later explained his actions in court on the grounds that “people became very stupid” as the morning approached. In any event, at the conclusion of the meeting the participants believed that the three-year dispute had been settled within the 'āiga in accord with Samoan custom.

The case was not settled at that point, however, because in late 1967 candidate B decided to file his own claim of succession to the Suafa title with the territorial registrar at the Fagatogo courthouse, thereby bringing the succession under the jurisdiction of the High Court. After the registrar posted B's claim on the courthouse bulletin board and in Fituita village, five objectors appeared to protest and to claim the title for themselves. A and C objected from the Suafa 2 faletama, and from the Suafa 4 faletana came objections from F, from a 28-year-old untitled man D, and from a candidate E who later withdrew his objection before the trial began.

In 1968, a pretrial hearing was held by an American Associate Justice and a Samoan associate judge at the courthouse to determine the qualifications of the candidates under basic requirements of the 1961 Code of American Samoa. It was determined that all candidates met the legal requirements that they (1) had at least one-half Samoan blood, (2) lived with Samoans as a Samoan, (3) were descendants of a Samoan family, (4) were born on American soil, and (5) resided in American Samoa for a period of one year before the filing of the application or objection. Candidates also produced certificates signed by chiefs of Fitiuta village, asserting that the Suafa title was a traditionally recognised matai title, as required by law. However, the court pointed out that none of the candidates had yet filed a petition “signed by three-fourths of the numbers of the claimant's family over twenty years of age asking that the claimant be registered for the matai title”, as required by section 6.0104 of the Code. All parties were advised to comply with this requirement before proceeding further, and formal court proceedings were postponed 6 months in order to give each candidate an opportunity to file the additional signatures.

After the pretrial hearing, the territorial registrar posted a notice, in both English and Samoan, of the filing of these claims of succession. While this administrative work was proceeding, the clerk of the High Court received a declaration from another Suafa 'āiga potopoto at Fitiuta, which stated “we wish to declare before the court that we, the undersigned members of the Suafa title, or the 'āiga potopoto, have agreed and have appointed A to hold the title Suafa for us. We therefore wish to present this decision as the Suafa Family 'Āiga Potopoto Decision.” 45 The petition contained 80 signatures, with some duplications. Of course, the court - 84 could not heed this as long as B's claim and the five objecting petitions were on file at the courthouse, and so the court trial was eventually held in 1969.

The Trial

When the trial convened in 1969, candidate E had withdrawn and three of the remaining five candidates had retained Samoan legal counsel. B was represented by a former President of the Samoan Senate and Speaker of the House of American Samoa, and both A and F had retained former Speakers of the House. C and D chose to represent themselves without legal counsel. On the bench, an American associate justice presided over two Samoan associate judges and two Samoan assessors, as prescribed by law.

The public trial lasted a week. First each of the five candidates had a turn to present his qualifications, either personally or through his counsel. As each completed his presentation, he was subject to questioning by each of the other four, and the judges inserted questions or requested clarification of points when appropriate. After these opening arguments, each candidate again had an opportunity to present witnesses. Again all candidates were allowed to cross-examine any witness called to the stand by a candidate. The final stage of the trial consisted of one summary statement from each of the five, but when these closing remarks included new material the court allowed the other candidates additional time to present their views of the new data. These proceedings went slowly as testimony in the Samoan language was translated into English for the benefit of the presiding American judge, and then questions in English were translated back into Samoan for the witness to answer. After testimony was completed, the judges retired to weigh the qualifications of the candidates in accord with the four considerations prescribed by the 1961 Code of American Samoa and discussed earlier in this article.

The Decision

The question of which candidate has the “best hereditary right” is given first priority in the statutes, and we have seen that this tends to be interpreted narrowly by the court to mean that candidate which is most closely related to previous holders of the title. The present trial was no exception. In the case of C, D, and E it was their great-grandfather who had held the Suafa title, and so each of them was judged to possess one-eighth Suafa blood. Candidate F had one-fourth blood right because his grandfather once held the title, and the court assigned one-half blood right to both A and B because each of their fathers had been former title-holders. In this case A had also been adopted by B's father, the last holder of the title, and the court ruled that A prevailed on the heredity issue. The reason, in the opinion of the court, was that “under Samoan custom the son of a title holder who is also the adopted son of a subsequent title holder has a better hereditary right than the natural son of a title holder.”

After hereditary right, the 1961 Code gives second priority to “the wish of the majority or plurality of those clans of the family as customary in - 85 that family.” As often happens in court cases, the judges encountered difficulty in resolving this issue because (1) the candidates themselves were unable to agree upon exactly how many clans their 'āiga contained, and (2) there were no recorded family genealogies to resolve the dispute. Candidate A stated there were two clans whereas the other candidates all agreed there were three clans but disagreed as to what they were. B said that the number of clans was irrevocably fixed by the number of offspring from the first holder: the Suafa 'āiga therefore contained three clans descending from the first Suafa's three offspring, whom A claimed were Suafa 2, Suafa 3, and Suafa 4. But candidates C, D and F alleged that the 'āiga contained three clans descended from Suafa 2, Suafa 4 and Suafa 8, and they denied clan status to the descendants of Suafa 3.

We have seen in earlier cases that one way in which the court handles such contradictory testimony is to rule that all candidates rank equally on this issue, thereby allowing the court to decide the case on the basis of other considerations. In the Suafa trial, however, the court chose to rule that candidate A prevailed on the clan issue, for the following reasons: (1) All candidates but one denied the existence of the Suafa 3 clan, (2) all recognised the existence of at least two clans descended from Suafa 2 and Suafa 4, (3) the court believed it was the wish of these two unchallenged clans that A succeed to the title, and (4) candidate A was judged to have the most support among 'āiga members who lived in Fitiuta village where the title was located.

The remaining two criteria prescribed by law to guide the court's deliberations are “forcefulness, character, personality, and knowledge of Samoan customs” (criterion three) and “value to family, village, and country” (criterion four). Much court testimony was intelligible as an attempt to impress the judges in regard to these considerations. Each candidate volunteered a wide range of personal information, including figures on income taxes paid to the government, savings bonds, church contributions, high school diplomas and college credits, and employment earnings, as well as letters of commendation from ministers and employers and accounts of service rendered to previous title-holders. The latter included working the former matai's land, preparing his daily food, paying loans on his new European-styled house, financing his hospital bills, and helping with funeral costs. One of the candidates also claimed credit for constructing a European house for himself on Tutuila Island, on the grounds that he would be better able to take care of his matai when he came to Tutuila to visit. Candidates included in their testimony references to the characters of their opponents: Candidate D, for example, was described as a child who didn't look like a matai, A was accused of having the build of a wrestler who would throw some of the family out, C's arrogance on the witness stand was cited as a barricade to family unity, and it was claimed that F was too humble and gentle to provide adequate leadership. Candidate F, in fact, was a minister, and it was said that he failed to qualify because he read too much in the Bible and did not spend enough time studying family affairs.

It is possible that much of this character and value material presented by - 86 the candidates was judged to be irrelevant by the court. Some indication of what the court considers to be important was contained in a 1962 decision, which stated that the court evaluates “. . . demeanor, personality, presence of mind, clarity, speed and correctness with which answers are given, self-confidence, and other qualities reflected from the speech and behavior of candidates.” 46 Additional indications of what the court judges to be relevant were contained in the written opinion attached to the Suafa decision:

. . . the following comments may be of assistance to claimants in future cases. . . . Each claimant should understand the sacred undertaking of his sworn word. In this case some claimants have sworn that various short lists of signatures or names were the signatures of ¾'s of claimants' family. Some claimants swore this on several occasions to more than one list. . . . Failure to know the members of one's immediate family can indicate a lack of knowledge of the matai family as a whole. Personal and current understanding of the village in which the title originates, support from the family living in the village, and knowledge of the family lands can show the value of the claimant to the family.
Payment of a debt incurred by a deceased matai is also an indication of this value. Failure to remain reasonably alert during proceedings does not indicate forcefulness. Traditional Samoan dress would be appropriate to the proceedings as an indication of respect for Samoan custom.” 47

Case Summary and Discussion

In its decision, the court ruled that candidate A prevailed under both criteria three and four. In this case, therefore, one candidate was found to prevail under all four statutory criteria. The court ordered that the name of candidate A be certified to the territorial registrar for registration as holder of the matai title Suafa, and the case was closed.

This case illustrates how a succession may be decided if 'āiga members are unable to reach an agreement among themselves. It is representative of title disputes that are referred to the court, although it should be noted that disputes reach the court only when an 'āiga consensus cannot be reached.

Selection procedures during the initial stages of choosing a new holder for vacant senior titles may differ little from traditional procedures. Each candidate enlists the support of his own faletama and as many other 'āiga members as he can; then he will arrange an 'āiga potopoto to discuss the merits of each candidate and arrive at an 'āiga consensus upon one candidate. We have seen, however, that this procedure does not guarantee an 'āiga consensus will be reached. All faletama may not attend meetings announced by a candidate from a rival faletama. Several 'āiga potopoto meetings may be called by various candidates over a period of many years, as candidates refuse to negotiate and challenge the authority of their - 87 competitors to call family meetings. When talks become deadlocked, any candidate can now depart from customary procedure by submitting his name to the territorial registrar for registration as the new title-holder. This move will prompt his rivals to file objections and counter-claims, and the result is a public High Court trial at which each candidate tries to persuade the judges that he is best qualified for the office. Then the court, and not the 'āiga potopoto, selects one of the candidates to receive the title.

The Suafa title case from Fitiuta village is of particular significance, because Fitiuta is one of the most remote and conservative villages in American Samoa. Title disputes from that village rarely reached the court up until recently, because villagers were reluctant to expose family genealogies and village traditions to outsiders. The nature of traditional opposition to High Court title trials, and the extent to which that opposition had persisted in Fitiuta village, became explicit during an abruptly terminated court proceeding in 1954.

The case involved one of the highest titles in Fitiuta village. When four claimants for the title appeared in court, a recess was requested before the trial began so that the family could again discuss the matter amongst themselves in the courtroom and attempt to reach an agreement. After one hour and fifteen minutes, the judges returned and were informed by three of the four candidates that they had decided to withdraw their names from consideration so that the court could proceed to register the remaining candidate without objection. The counsel for one of the withdrawn candidates explained to the court that his candidate and his clan “would like to support the opinion of Fitiuta village as it was announced publicly by the late Tufele Fa'atoia that “there would be no title in Fitiuta village to bring in the court,” because “to have this case tried before this court and now one of the counsel here, who have no right to the title whatsoever, now taking the evidence of the title Moa which is not correct. . . . That's why we don't want this case to be tried, because we do not want the genealogy of our family spread out.” 48 Another withdrawn candidate said he did so because he had “gathered from speeches from Chief Tufele . . . that in any case any title of the village of Fitiuta that were bring before the court for trial, that title will never be recognized. . . .” 49 This village policy was cited in a concluding speech by a member of the Tufele family:

I will not bring up other counties, but for this county only, this Fitiuta, there were laws put up by the village councils of this village, except Fitiuta only there would be no case of any kind brought before any court to be tried. And that is in the village regulations of said village. And nowadays from then on up to date, the people of the village of Fitiuta are called or known as one family. They cooperate together. Whenever they discuss a matai title, the village as a whole gathers together and discusses amongst themselves. Not the family only that this title belongs to, but the whole village. But this is now ended. The objectors have laid their opinion to the court, but this - 88 matter should be taken back to the village council of Fitiuta and the Fitiuta village council will notify the court of their decision. And in conclusion I want to point out to the court that it is the wish of these three candidates to withdraw their objections for that purpose only. They are afraid and they pay high respect to the village council of Fitiuta. 50

This case demonstrates that in 1954 the Fitiuta village council still exerted enough influence to compel the 'āiga whose senior title was involved to halt a court proceeding and resubmit its affairs to an 'āiga potopoto to be decided with the aid of advice and admonishment from other ranking village title holders. Nevertheless, the effectiveness of the council in enforcing village policies was soon to weaken. By 1969, 5 of the 17 senior ranking titles of Fitiuta had already been referred to the High Court; 2 others had been vacant from 5 to 7 years as their respective 'aiga failed to reach a consensus on who their successors should be. We may conclude that even conservative villages have been unable to block the trend toward High Court settlements for matai succession cases. For this reason, an analysis of High Court policies in regard to matai cases has become essential for an understanding of how an increasing number of matai cases are decided in American Samoa.

TITLE SPLITTING AND MATAI REMOVALS

Most High Court cases concerning title disputes end in a court action which orders the registration of a contested title in the name of one of the claimants in the case. Title splitting and matai removals are two other actions which the court can take, however, and so the significance of these court options in American Samoa should be noted.

Title splitting occurs when the same matai title is conferred upon two or more joint holders as a means for overcoming family differences over which of several competing candidates should receive the title. Title splitting means that each holder can claim the prestige and prerogatives of the title simultaneously with the co-holders. However, since each holder will enjoy the direct support only of that family faction to which he himself belongs, title splitting can have the effect of institutionalising rifts in the 'āiga descent group. 51 Such divisions of 'āiga leadership among title co-holders reduces the effectiveness of the 'āiga in regulating its internal and external affairs, and the High Court has never favoured title splitting as a means for settling title disputes.

While there is some precedent for more than one individual to hold the same title at the same time, the practice is definitely frowned upon. The court recognizes that splitting of titles tends to dilute the authority of the matais and hence weakens the entire matai system. . . . The authors have not found a case that specifically states that splitting of titles is only rarely permitted, but in practice the Court has per- - 89 mitted two individuals to hold a title only in exceptional circumstances. . . . Only a miniscule portion of the titles in American Samoa are split at the present time. . . . The Matai Title Division would almost certainly look unfavorably on the splitting of titles that have not historically been split as the splitting of a leadership role cannot help but weaken the entire matai system. 52

Court actions to remove incumbent matai title-holders from office are also exceedingly rare in American Samoa. A statute authorising the High Court to remove chiefs from office appeared in the 1937 Codification:

Whenever three-fourths of all adult persons in a family desire the removal of the matai and they so state their desires to the Attorney General in writing, setting forth their reasons, a notice to that effect, containing all signatures shall be posted for thirty days in the usual manner. A copy of such notice will be furnished to the matai who will be given a hearing on the subject before the High Court of American Samoa. If within a reasonable time no hearing has been requested by the matai, or if on hearing no sufficient reason has been shown to the Court why the matai should not be removed from office, such fact will be certified by the Court to the Attorney General and the Attorney General will remove the name of the matai from the records and the family shall be without a matai until another is selected in the usual manner. 53

The 1961 Code gave the court jurisdiction to hear title removal cases when ten members of the family filed a petition with the High Court, 54 and it also authorised the court to consider removal petitions filed by any member of the family in situations where the matai has been absent from American Samoa for over one year. 55 This was modified in 1973 by an amendment which required that removal petitions must be filed “by 25 blood members of the matai's family, over 18 years of age, who at the time of the petition are all serving the Matai and family according to Samoan custom.” 56

Matai removal cases are relatively infrequent, and the High Court historically has been reluctant to make precedent-setting decisions that would set forth judicial criteria for the removal of incumbent chiefs. Cases which have reached the court frequently set a court precedent only of avoiding internal family disputes of this kind. A 1937 case was rejected by the court on grounds that a family should not bring a petition to the court if they have not followed the customary procedures for attempting a reconciliation with their matai, 57 and in 1945 the court 58 increased the - 90 difficulty of getting removal cases decided in court by requiring the petitioners to prove that they constituted three-quarters of the adult family members.

In 1953, 59 a total of 168 signatures appeared on a petition to remove the incumbent of the Mauga title of Pago Pago, but in his defence Mauga charged that 39 were too young to sign and only 10 of the remaining 129 were “true” family members. The petitioners, on the other hand, maintained that they did represent three-quarters of the “family”. In this case the incumbent title-holder himself had presented a petition with 549 signatures of alleged family supporters (64 of which he admitted signing himself), and another witness had testified that there were 400 adult blood members of the Mauga ‘āiga. This permitted the court to make the curious argument that even if all 129 of the adult signers on the removal petition were acceptable, they would still fail to comprise three-quarters of 200, which was only one-half of the total estimated family membership. Cases such as these suggest that the court was not eager to move on to the fundamental issue of what should constitute sufficient grounds for the court to remove a title-holder from office.

In those cases where court action did remove a matai, the court has refrained from creating controversy in its removal decisions. For example, the reasons given for the removal of a matai in a 1937 case do not conflict with Samoan custom:

Where it is proved that a matai has threatened to burn the fale [house] of his sister, has stated it would be a good thing if all the children of a member of the family were dead, had demonstrated pride which has resulted in difficulties for the family in the village, has told members of the family that they could quarrel as long as they liked, has made native beer in violation of laws, has made girls of his family engage in immoral practices with and before strangers, has claimed all family land for himself and his immediate family, and has misused church funds, then he should be removed as matai. 60

Most cases are not so easily decided, of course, and then decisions may contain references to specific duties which the court thinks the matai should perform. In 1945, 61 a matai from Nua was removed because he had taken up residence in Pago Pago and allegedly was not present in Nua village enough of the time to adequately manage his family's affairs. The charge was supported by the district governor, who testified that this matai headed the only family in Nua whose premises were not clean and in good condition, and he concluded that “I don't like any man to hold a title and go out and loaf around. . .” In ruling to vacate the man's title, the court gave an opinion which illustrates its thinking in removal cases:

The office of matai in American Samoa carries with it certain duties which the holder of the title must perform. He cannot merely hold the title and neglect the duties which go along with the office. According to Samoan custom, the matai is expected to reside in the village - 91 with his family, to preside at meetings of the family, to see that members of the family perform their duties in connection among the members of the family, and to perform all of the other duties which the head of a family must perform. . . .” 62

Historically, the court has been conservative in those cases where it has delineated the obligations of incumbent title-holders. However, the fact that the court is empowered to pass judgment upon incumbent matai and to remove them from office suggests that this aspect of the High Court's powers should be of interest to the student of structural stability and change in American Samoa.

CONCLUSION

Writing of Western Samoa, Sharon Tiffany has observed that “. . . the court represents an important procedure for conflict resolution which was not available in traditional Samoan society”, and that the presence of the court “. . . has considerable implications concerning the power and authority of 'āiga members to regulate their descent group's titles.” 63 We have seen that the same is true of the High Court in American Samoa. Whereas disputed titles in the past “. . . would have remained vacant until agreement was reached through further discussions, or possibly through the threat or actual use of physical violence”, 64 the court now makes it possible for a candidate to appeal 'āiga decisions to the central government for adjudication by persons who are not members of the 'āiga whose title is in question. Court attempts to formulate and apply selection criteria that reflect traditional practices have not always been successful, despite the stated intention of the American administration to maintain Samoan custom. The reasons for this have been examined in this article, which suggests that introduced judicial institutions in American Samoa have indeed influenced the traditional procedures and criteria by which Samoan successors to chiefly titles are chosen.

ACKNOWLEDGEMENTS

I wish to acknowledge the support of the National Institute of Mental Health and the UCLA Department of Anthropology during my first field trip to the Samoan Islands, January 1969 through May 1970. Additional field work in Samoa was conducted in 1971 and during the summer months of 1973. The hospitality of many Samoan friends on Tutuila and Ta'u Islands as well as in Western Samoa is warmly remembered. The entire courthouse staff in Fagatogo was most helpful in assisting my research, and I especially wish to thank the Samoan members of the High Court, including High Chiefs A. U. Fuimaono, A. P. Lutali, and T. A. Masaniai. Comments on earlier versions of this paper from former Chief Justice Arthur Morrow and Associate Justice Joseph Goss of the High Court of American Samoa were much appreciated. I also want to - 92 thank chief archivist Ann M. Campbell and her staff for the good time we had in 1974 researching Samoan documents at the Federal Archives and Records Center in San Bruno, California.

REFERENCES
  • Abbreviations: TAS—Territory of American Samoa.
  • COOL, John Cole, 1958. American Policies in Tutuila in Relation to the Samoan Authority Structure. Unpublished PhD. thesis (Anthropology), London School of Economics and Political Science, University of London.
  • DAVIDSON, J. W., 1967. Samoa Mo Samoa. Melbourne, Oxford University Press.
  • EMBER, Melvin, 1959. “The Nonunilinear Descent Groups of Samoa.” American Anthropologist, 61:573-7.
  • GILSON, R. P., 1970. Samoa 1830-1900: The Politics of a Multi-Cultural Community. Melbourne, Oxford University Press.
  • GRAY, J. A. C., 1960. Amerika Samoa. Annapolis, United States Naval Institute.
  • KEESING, Felix M., 1934. Modern Samoa. London, Allen and Unwin.
  • LUTALI, A. P., and W. J. STEWART, 1972. Some Legal Aspects of the Matai and Land Tenure Systems in American Samoa. Unpublished paper.
  • TERRITORY OF AMERICAN SAMOA, 1917. Codification of the Regulations and Orders for the Government of American Samoa.
  • —— 1937. Codification of the Regulations and Orders for the Government of American Samoa.
  • —— 1946. Code of Laws of the Government of American Samoa.
  • —— 1961. Code of American Samoa. Revised edition.
  • —— MS. 1. High Court Files. Court House, Fagatogo.
  • —— MS. 2. Legislative Reference Bureau. Files. Legislative Building, Fagatogo.
  • TIFFANY, Sharon W., 1974. “The Land and Titles Court and the Regulation of Customary Title Successions and Removals in Western Samoa.” Journal of the Polynesian Society, 83(1): 35-57.
  • —— 1975. The Cognatic Descent Groups of Contemporary Samoa. In press.
  • TILLEY, Commander B. F. 1900. Form of Government, Number Five: A Declaration Concerning the Form of Government for the United States Naval Station, Tutuila. Tutuila, United States Naval Station.
1   The Samoan Archipelago has been divided administratively since 1900 into America Samoa and Western Samoa. American Samoa today is an unorganised, unincorporated territory of the United States. Western Samoa was administered by Germany and then New Zealand until its independence in 1962. The development of political, economic, and legal institutions in these two areas has followed markedly different courses, so that discussion in this article applies only to American Samoa. Readers who wish to compare the development and operation of the judicial system in American Samoa with that of Western Samoa are able to do so by referring to the recent article by Sharon Tiffany (1974a).
2   The Berlin Agreement of 1889 partitioned Samoa and established American influence over the eastern islands of the archipelago. Chiefs of Tutuila and Aunu 'u formally ceded those islands to the United States in a Deed of Cession dated April 2, 1900. Chiefs of Manu'a ceded the islands of Ta'u, Ofu and Olosega to the United States on November 24, 1906.
3   Gray 1960:108.
4   Tilley 1900. An account of events in the Samoan Archipelago preceding cession of the eastern islands to the United States is contained in Davidson 1967, Gilson 1970, and Gray 1960. 5. Tilley 1900:2-4.
5   Ibid:4.
6   The first presidential appointment as “Governor” was given to Commander C. B. T. Moore, U.S.N., in 1905. Before 1905, chief executives in American Samoa held the military designation of “Commandant”.
7   Regulation Number 8-1906, enacted September 14, 1906 by C. B. T. Moore, Commander, U.S.N., Governor. Codified as section 45 in TAS 1917. Tilley's 1900 Declaration Concerning a Form of Government had decreed that the office of Secretary of Native Affairs be filled by a chief secretary whose duties would be (a) to be the Commandant's secretary, (b) to supervise Samoan administrators and judges, and (c) to be a judge himself.
8   TAS 1917 by Alexander Stronach, Judge of the High and District Courts.
9   See section 3:25 ½ of TAS 1937.
10   Keesing 1934:238.
11   Regulation Number 11-1907, enacted November 11, 1907 by C. B. T. Moore, Commander, U.S.N., Governor. See section 45 of the TAS 1917.
12   Regulation Number 11-1914, enacted April 4, 1914, by C. D. Stearns, Commander, U.S.N. Governor. In the TAS 1917 this regulation appears as section 47, “Ineligibility for Office or Mataiship Because of Crime.”
13   This regulation was first published on August 18, 1933 as Regulation Number 10-1933. It subsequently appeared in TAS 1937 under section 81, “Eligibility Requirements for Title or Office.”
14   In the current TAS 1961, these eligibility requirements have been revised to state that candidates (1) must have at least one-half Samoan blood, (2) must live with Samoans as a Samoan, (3) must be descended from a Samoan family and be chosen by his family for the title, and (4) must have been born on American soil, with certain exceptions. See title VI, section 6.0101, “Matai Title Provisions” of the TAS 1961.
15   Section 79 of the TAS 1937 did specify requirements that (a) chiefs of the village must certify that the title to be registered “is an old matai title of the Samoan people,” and (b) three-quarters of the claimant's family over 14 years of age must sign a petition supporting the claimant. However, the former requirement serves only to prevent the creation and proliferation of new titles, and the court has found that it is unable to use family petitions in a rigorous way for reasons which will be examined in this article. For the most recent judicial interpretation of the petition statute, which has since been amended to require signatures of three-fourths of the claimant's family over 20 years of age, see the opinion filed by Associate Justice Joseph Goss in case number 451-67 of the High Court's Land and Titles Division.
16   See section 933, “Consideration given by Court”, in TAS 1946.
17   TAS 1961.
18   Following the transfer of administrative responsibility for American Samoa to the Department of the Interior in 1951, the Secretary of the Interior has had appointive powers over both the Governor and the American Chief Justice and Associate Justice in the High Court. The judicial branch therefore lacks independence from the executive, as was apparent in the early 1970s when decisions of the American Associate Justice displeased the Governor and resulted in the judge's removal. In 1970, the Samoan Senate resolved to send to the Secretary of the Interior a joint resolution, stating that “. . . whereas a truly independent judiciary . . . cannot remain subject to executive fiat . . . be it resolved . . . that the authority to appoint and remove the Chief Justice and Associate Justices for American Samoa should not be based upon political expedience.” (Senate Joint Resolution Number Nine, Eleventh Legislature, Second Regular Session, Fagatogo, 1970.) As of 1974, American justices were still serving at the pleasure of the Secretary of the Interior Department.
19   Samoan Senate Bill 156, Eleventh Legislature of American Samoa, Second Special Session, 1970. After adoption, this bill became public law 11-119.
20   As of January 1, 1969, the matai register was closed. No matai title can now be registered in American Samoa unless that title had been recorded with the territorial registrar earlier than the end of 1968. Hence certification of a title's traditional authenticity by village chiefs is no longer the only means for preventing the proliferation of newly created matai titles. See title VI, sections 6.0103, 6.0104, and 6.0111 in the TAS 1961.
21   An additional procedural requirement was adopted as public law 12-59 by the Samoan Legislature in 1972 (Senate Bill Number 136, Twelfth Legislature, Fourth Regular Session). Title III of TAS 1961 is therefore now amended to include the following section:
Sec.3.1916—CERTIFICATION OF IRRECONCILIABLE DISPUTES: Before any action may be commenced in the Land and Titles Division, relating to controversies over communal land or Matai Titles, each moving party shall file with his complaint a certificate signed and attested by the Secretary of Samoan Affairs or his deputy, in which he or his deputy affirms and states:
(1) That on at least two separate prior occasions, the parties have appeared personally before him and two persons designated by him, without an attorney or counsel, and that an attempt was made to resolve the controversy;
(2) That all parties to the controversy received at least 20 days notice for each of the two required appearances;
(3) The date and hour of the beginning and conclusion of each appearance;
(4) The findings and conclusions of the secretary or his deputy and the two designees with respect to the controversy heard before them including a statement of the reason why the controversy could not be resolved.
22   The Annual Fono was a predecessor of the Legislature of American Samoa. In 1937, it was an advisory body made up of selected Samoan title-holders who met once a year to discuss questions which the government wished to place on the annual agenda. It was presided over by the Governor with the assistance of his attorney general. An account of the development of the legislative branch of the central government in American Samoa is contained in Cool 1958.
23   In the TAS 1946 the corresponding statute is chapter 19, section 933. In TAS 1961 the revised statute currently in force appears as title VI, section 6.0107.
24   MS. 1, Civil Division, Number 77, 1948.
25   MS. 1, Civil Division, Number 24, 1947.
26   MS. 1, Civil Division, Number 16, 1938.
27   MS. 1, Civil Division, Number 9, 1938.
28   MS. 1, Civil Division, Number 20, 1947.
29   Title VI, section 6.0107, TAS 1961.
30   MS. 1, Appellate Division, Number 104, 1964.
31   MS. 1, Land and Titles Division, Number 194, 1964.
32   MS. 1, Land and Titles Division, Number 87, 1965.
33   Samoan statute and the High Court are consistent in using the term “family” to refer to what is properly called the 'āiga. The 'āiga is a nonunilineal descent group consisting of persons who can trace their descent from the group's founder through a succession of male and/or female links. Since these extend over many generations, the High Court's difficulty in resolving family membership disputes in the absence of recorded genealotries is apparent.
34   MS. 2.
35   The High Court historically has used the ambiguous terms “branch” and “clan” to refer to the faletama divisions of 'āiga descent groups. For a discussion of the structure of kin-based corporate groups in Samoa, see Sharon Tiffany 1975.
36   MS. 1, Civil Division, Number 18, 1949.
37   MS. 1, Appellate Division, Number 9, 1956.
38   MS. 1, Land and Titles Division, Number 93, 1963.
39   MS. 1, Land and Titles Division, Number 113, 1964.
40   MS. 1, Land and Titles Division, Number 3, 1962.
41   Ibid.
42   “Suafa” is a Samoan noun meaning name or title; it is used when the individual referred to is of chiefly rank. The actual name of the title involved in this case study has been deleted to preserve descent group anonymity. Past holders of the Suafa title are distinguished by number, both in Figure 1 and in the text; Suafa 13 therefore refers to the 13th holder of the Suafa title.
43   Recitation of ‘āiga genealogies is a grave offence to Samoans. Figure 1 was drawn to show only the relative positions of the six candidates within the faletama divisions of the descent group. All ‘āiga members not necessary for this purpose have been deleted.
44   The word 'ava, commonly spelled as kava, is a Polynesian term referring to a drink prepared from the roots of the plant Piper methysticum.
45   MS. 1, Land and Titles Division, Number 451, 1967.
46   MS. 1, Land and Titles Division, Number 93, 1963.
47   MS. 1, Land and Titles Division, Number 451, 1967.
48   MS. 1, Civil Division, Number 19, 1954.
49   Ibid.
50   Ibid.
51   An excellent Western Samoan case study which illustrates the divisiveness that can be perpetuated in descent groups with split titles is presented by Sharon Tiffany (1974:50).
52   Lutali and Stewart 1972:16-17. High Chief Lutali was a Samoan Associate Judge on the High Court, a past President of the Samoan Senate and former Speaker of the Samoan House of Representatives, and Chairman of the 1967 Constitutional Convention. W. J. Stewart was law clerk to the Chief Justice of the High Court of American Samoa.
53   Section 79:7, TAS 1937.
54   Title VI, section 6.0108, TAS 1961.
55   Title VI, section 6.0110, TAS 1961.
56   See Senate Bill Number 12, Thirteenth Legislature of American Samoa, First
57   Regular Session, 1973. This bill became public law 13-14.
58   MS. 1, Civil Division, Number 17, 1937.
MS. 1, Civil Division, Number 26, 1945.
59   MS. 1, Civil Division, Number 8, 1953.
60   MS. 1, Civil Division, Number 20, 1937.
61   MS. 2, Civil Division, Number 6, 1945.
62   Ibid.
63   Sharon Tiffany 1974:53.
64   Ibid. :41.