American Samoa Courts, Part 2

High Court of American Samoa

      I haven’t written about the legal system here in American Samoa, other than to briefly describe parts of it and show some pictures of the courthouses.  There’s a reason for that; every time I think I have a handle, I discover some new facet that makes it look different than how I had thought.  But it’s time to take a run at it.  This is above all my perspective and my thoughts; but then it's my blog!

     Part of the difficulty is the history and culture of this island.  Despite being called “American” Samoa, it is not American.  You can come out here assuming that this is a little tropical America with palm trees and quaint Samoan people who speak a funny language sometimes.  That isn’t so.  Samoa is an ancient land and culture; the people here are proud to be Samoan and don’t want to be “American” at the expense of their own identity.  Despite a strong American influence this remains Samoa and its people Samoans.

     It should be noted, again, that the people of American Samoa have always supported the USA loyally in times of war.  Samoans have fought in all our wars since 1900.  When in 1941 the Navy vastly expanded their base here (in anticipation of trouble with Japan) almost every able-bodied man and woman contributed.  A Marine brigade composed of Samoan volunteers was formed.  Samoans fought in WW2, Korea, Vietnam, Iraq, Afganistan, and in all the other little conflicts since then.  Many have become casualties, wounded or killed.  Samoan military veterans are in many high and influential positions today – judges, legislators, government agencies.  Many young people continue to join the military, there are large and active ROTC programs in the high schools.  Those in the military are highly respected here.  They have earned, and continue to earn, their small niche in the American sphere.

     Samoa never had a legal system as such.  I’ll take the beginning of World War 2 as a starting point.  In 1940 the population here was about 10,000 people who lived scattered in small villages which dotted the coastline.  There was no industry, hardly any use of money (the only bank in American Samoa in 1940 had revenues of $9,000 that year) and the place was scarcely different than it was in 1540.  There was no need for commercial law, as there wasn’t any commerce.  There was no need for Constitutional law as there wasn’t a constitution. Criminal matters among the Samoans (what little crime that existed; there was nothing to steal, for example) were resolved in the traditional way, with the families and villages talking and reaching an apology and some compromise.  The small Navy station ran under military law; what didn’t concern the Navy was left to the Samoan people.

     After the war much changed; there had been an influx of dollars and people and the rudimentary beginning of an economy.  The Navy left in 1951, but even into the early 60’s American Samoa remained a small backwater of no real concern to anyone but the people who were here, and they by and large were content that way.  A U.N. study of underdeveloped places, among other things, prodded the US under President Kennedy to pay some attention.  Money started to come in, and the beginnings of self-government were seen.  This led to a Constitution for American Samoa, its first ever, in the late ‘60’s. 

     It’s against this history that we can look at the legal system here.  Our American system is over 200 years old, fully developed and the best in the world.  It is in fact much older, based as it is on almost a millennium of the English Common Law.  We Americans have grown up with our system, it’s taught in the schools, it’s dramatized in the movies and on TV.  Not just my generation, but our parents, and theirs, and their great-grandparents, grew up in a developed legal system with defined procedures and reasonably stable laws.  We understand it inherently.  Even if non-lawyers may not work in it day-to-day and couldn’t define it precisely, almost every American has an innate sense of the adversarial system, the roles of lawyers, what a trial is, and a strong belief in the general legitimacy and fairness of court decisions.  That we use and trust courts to make important decisions is something we believe as a fundamental principle, virtually unchallenged and unquestioned

     Contrast this to someone who has never had that background.  Here, conflicts were small and personal, and such as occurred were handled in the fa’a Samoa way – your matai (family leader) talked it out with the other matai and after awhile an apology and compromise happened.  That is tradition here, it is in fact their innate legal system.  There were no judges or anything like a court.  People were not educated in anything different as they had no such need.  Then, suddenly, a completely different idea – an adversarial system – is dropped upon a culture which existed for centuries with no such concept.  We as public defenders run into the effects every day.  We explain things such as a jury trial, confrontation, etc. and get nods of agreement with a blank look of functional incomprehension.  The people here understand these things in theory, but they don’t feel them innately as we Americans do, and they often recoil from them.  Almost all our clients simply don’t want a jury trial, it’s foreign to their outlook and something to be avoided at almost any cost.

     The average Samoan of my generation, born mid-century, didn’t have a recognizable legal system until, perhaps, high school age.  Those older lived most of their lives without one.  They get it intellectually, but not truly internally.  Those younger have more of an idea.  They’ve had some education in the schools, but it competes with the fa’a Samoa for their hearts.  The matai system of supreme family leaders and a hierarchy of class rankings, is still alive and well here.  The fa’a Samoa method of talk, negotiate, compromise, apologize, move on, still predominates the thinking processes of this culture.

     So one has here an adversarial legal system based upon British common law ideas, plunked down just a few years ago upon a society to which it is unfamiliar and mostly opposite to how the people had run their lives for generations.  Seen from the point of view of where things were as recently as 60 years ago, the legal system has made tremendous steps.  Seen from the perspective of the developed and vibrant USA system, it has notable quirks and oddities.

     Technically, for those lawyers among my readers, American Samoa is a territory administered by the President.  It is different from other territories (e.g. Puerto Rico, Virgin Islands) in that the US Congress has not used their constitutional authority to make laws for its governance.  All the Congress has done is give it to the President, who in turn gave it to the Secretary of the Interior.  Under the Insular Cases (from way back around 1901) the Constitution does not “follow the flag” in territories.  Except for very basic essential human rights, the territories have only such rights as Congress gives them, and Congress hasn’t acted as to American Samoa.  So American Samoa has whatever rights as the Interior Department wishes to give it.  Our Constitution doesn’t apply except as to what the Interior Department says it does.  For example, it required a lawsuit back in the mid-70’s to force a jury trial in criminal cases - the Secretary of the Interior was court-ordered to permit jury trials here in criminal cases.  There are no jury trials at all here in civil cases.

     There was a vote here some years back about a more formal arrangement with the USA, but the voters turned it down overwhelmingly.  Since the ‘60’s the Interior Department has steadily been expanding American Samoa’s self-government.  At present all the executive branch offices are elective, not appointed, as are the legislature seats.  They too have a Samoan twist; the upper house of the Fono (Samoan for court, used here to mean the legislature) is limited to matai from the various districts – no title, no Senate seat.  Customs and immigration is also local.  We Americans need a passport to come here; our US immigration process does not extend this far.  American Samoa controls its own borders and internal affairs with one remaining major exception – the Courts.

     The Courts, and essentially the entire legal system here, have been referred to by the current Governor as the last vestige of colonialism for American Samoa.  No law of the Fono affecting the Courts can be enforced without the approval of the Interior Secretary; he appoints the top judges as well.  There are reasons for this; a long history of misconduct has made the changeover to self-rule slow at best.  The current Lt. Governor, for example, just recently obtained a hung jury at his corruption trial in D.C.  I think a big reason for retaining control is that the Interior Department doesn’t trust anybody here to select judges fairly given the myriad of interlocking relationships throughout this small island, where it seems that everyone is related to everyone's friend.  Another is the money paid through the Interior Department for judges salaries and benefits, which they don’t yet wish to let get out of their control.  Whatever all the reasons may be, the ultimate arbiter of matters judicial is the US Interior Department.  The judges he appoints are not federal judges as in the US.  They are neither confirmed by the Senate nor by any other body.  They are judges for all purposes here, but agents of the Secretary there.  That is why lawsuits to challenge his orders are filed in Washington DC; they sue the Secretary where his office is located.

     In my view, this legal system can be compared to a medieval fiefdom in the way it is structured and run; the topic of our next post.  Keep tuned for Part Three.