HONORABLE ENI F. H. FALEOMAVAEGA

Thank you for this opportunity to address the Political Status Study Commission as you consider this important work of navigating American Samoa’s political future.  The work you do here investigating our options and the recommendations you produce based on the information you gather will have a tremendous impact on the lives of our people.  I am honored to share my thoughts with the distinguished members of the commission – I am hopeful that my thoughts and suggestions will contribute to the success of your efforts.

 I know that this commission has examined several political status options for consideration, including free association, commonwealth, and independence.  In my humble opinion, however, before this commission can fully address these issues, I believe our internal political relations must be addressed.  Otherwise, unresolved questions will always remain regarding our internal (Tutuila and Manu’a) and external (with the United States) political relationships.

DEEDS OF CESSION

As you are aware, two “Treaties” or “Deeds” of Cession, between the United States and Tutuila (1900) and between the United States and Manu’a (1904) form the political basis of our relationship with the United States. 
One source of ambiguity in these documents is that, in a Samoan context, this was understood to be a treaty of cession, rather than a deed of cession.  In the Samoan version of these documents, our chiefs used the term feagaiga, which means treaty, but in the English version, the word treaty is never mentioned.  To our Samoan chiefs this treaty relationship meant that Samoans would maintain a measure of autonomy – the terms of the agreement allowed the U.S. the right to use the land and the harbor, in exchange for providing protection against hostile nations.  Viewed as a deed, however, this agreement would have meant that the chiefs were giving over the land as well as their sovereignty over the land.  The problem inherent in this ambiguity is that a deed of cession offers our people something less than the sovereign status that a treaty would provide, and in fact the term “deed” implies ownership of property rather than a sense of the rights and privileges of a sovereign people. 

  Another source of ambiguity related to these two treaties/deeds is that they were negotiated separately between the United States and each of the island groups.  Because these two instruments were two separate acts, by themselves they did not unite American Samoa into one political entity.  Therefore, the fact remains that to this day, there is no officially declared political union between the island groups of Tutuila and Manu’a, only separate understandings with the United States. 

Furthermore, despite what others may have said was the understanding in the past, these treaties do not provide for the protection of the basic rights of American Samoa’s people.  While these two treaties have proven instrumental in providing stability to the people of American Samoa for the past 106 years, the “deeds” do not cover many of the most basic issues of concern for our people, such as citizenship, immigration, international trade and commerce, national security, marine and communal property rights, or membership in international organizations, to name a few.  Rather than being instruments that express some vague obligation on the part of the United States to protect our culture, I see these two treaties as asserting United States sovereignty over our lands and our lives. 

AMBIGUITY IN U.S. HANDLING OF AMERICAN SAMOA

The Deeds of Cession still stand as the basis upon which American Samoa can claim a political relationship with the United States, yet there is still some confusion even within the United States government as to the effect of these two treaties.  A review of the U.S. Department of State listing of U.S. treaties in force makes no mention of any treaty existing between the United States and the island groups of Tutuila and Manu’a. 

As a current conflict in federal law illustrates, the U.S. Congress has its own problems in defining the U.S. relationship with American Samoa.    The U.S. Congress approved these documents under the 1929 Ratification Act (48 U.S.C. 1661).  Section 1661 states as follows:

“Until Congress shall provide for the government of such islands, all civil, judicial, and military powers shall be vested in such person or persons and shall be exercised in such manner as the President of the United States shall direct; and the President shall have power to remove said officers and fill the vacancies so occasioned.” (emphasis added)

 Congress did not ratify the 1900 and 1904 Deeds until 1929, and then delegated its constitutional authority to administer the territory to the President, who transferred the administration of American Samoa to the Secretary of the Navy, primarily because the U.S. wished to establish a naval station in Pago Pago Bay.

In 1951, President Truman transferred the administration of American Samoa to the Secretary of the Interior.  The transfer of all administrative, judicial, and military authority from the Congress to the President has not been amended since 1929.  

Notwithstanding this 1929 law delegating authority over the territory to the President, in 1984 Congress passed a bill, signed into law by the President (Pub. L. 98-213, codified at 48 U.S.C. 1662a) that now requires congressional approval of any amendment to the territory’s constitution.  In view of this new law, several questions and problems are now being raised.  First, why does American Samoa now require Congressional approval of any amendments to its territorial constitution when Congress never expressly approved the territorial constitution to begin with?  Second, there are several provisions in our territorial constitution that would raise serious constitutional issues that Congress has not yet addressed.  In fact, it is questionable if Congress would approve such provisions in light of the U.S. Constitution.  Unfortunately, Congress has never fully examined the contradictions between these two statutes. 

The question here is whether the territorial constitution should be subject to congressional or presidential authority.  If the authority is congressional, the 1929 law should be amended to rescind the authority delegated to the President; if the authority is presidential, the 1984 law should be rescinded and the approval of changes to our constitution should be returned to the complete authority of the President via the Secretary of the Interior.  In either case, we have to face the fact that our present constitution and our current measure of sovereignty are nothing more than an extension of the presidential power of the Secretary of the Interior. 

As we discuss our possible options in our quest for a greater measure of self-government, where are we now in our relationship with the United States?  American Samoa is described as an “unorganized” and “unincorporated” territory of the United States.  American Samoa is considered unorganized because since 1929 Congress has not officially organized a government for the separate island kingdoms of Tutuila and Manu’a under one organic act.  Our territory is unincorporated because, according to Supreme Court decisions regarding the constitutional rights of insular territories, Congress has never intended to incorporate American Samoa into the Union.

As our shared history shows, the U.S. has not given much attention to the development of leadership skills for American Samoa’s leaders.  From 1900 to 1951, the U.S., through the Department of the Navy, appointed military officers to govern the affairs of the islands.  According to the 1921 Codification of the Regulations and Orders of the Government of American Samoa, on May 1, 1900 Commander Benjamin Tilley, the first naval commandant of Tutuila and Manu’a, declared that “the Governor, for the time being, of American Samoa is the head of the Government.  For fifty-one years, this self-made regulation governed American Samoa’s course with one appointed Naval Governor after another acting as the maker of all laws and appointments with little regard for the will of the people.  During this period of martial law there were no elected leaders.

With the transfer of power in 1951 to the Department of the Interior, American Samoa experienced little more than a transition from military to civilian rule.  Civilian-appointed governors still had full authority over island affairs.  In the 1960’s a territorial constitution was drafted and there began to be some involvement from the Samoan Legislature.  One unintended consequence of the law passed in 1984 requiring Congressional approval of amendments to the American Samoa constitution is that, whereas between 1960 and 1984 our local leaders had extensive practice at constitution-writing, after the law was passed this practice ceased. To date, the final steps toward some measure of self-government were taken when in 1977 the first Governor was elected by popular vote and in 1980 when American Samoa elected its first Delegate to the U.S. Congress.

RECOMMENDATIONS

Given this background and history of our political relationship with the United States, as you examine our future course of action I have the following recommendations for your review.

First, Tutuila and Manu’a must officially declare a union as one political entity or governing body, thereby sanctioning its authority to deal with the United States as we negotiate our future status.  This would address one of the major shortcomings of the separately negotiated Deeds of Cession.

Second, I would recommend that a national convention be called to deliberate the specific provisions of the 1900 and 1904 Deeds of Cession.  As I mentioned, these Deeds do not provide any real protection for our communal lands and culture as our forefathers intended.  I believe we need to formulate a statement of principles underlining our desire to either amend certain provisions of the two deeds or establish an entirely new agreement with the United States.  The provisions of any such agreement should define our political relationship with the United States, whether it is a “covenant” status like the Commonwealth of the Northern Mariana Islands, “free association” status like the Federated States of Micronesia, Palau, and the Marshall Islands, “commonwealth” status like Puerto Rico, or even an Organic Act such as the one governing Guam’s relationship with the United States.

Third, once we have defined what American Samoa’s relationship should be with the United States under the terms of an agreement that is agreeable to both sides, the leadership of Samoa should then call a constitutional convention and organize a government based upon the terms and conditions outlined in the agreement, not the U.S. Constitution.  Moreover, I believe this must be done as soon as possible – the longer this uncertainty surrounding these two Deeds remains, the further we drift from our forefathers’ treaty intentions and risk the erosion of our culture, of becoming less Samoan and more American or, in other words, Americans of Samoan ancestry.  As it stands, we cannot claim loyalty to the United States and at the same time refuse to apply federal standards that are incompatible with our local traditions and land-tenure system.      

To summarize, what I would ask of the esteemed members of the Political Status Study Commission is that, before you become too deeply involved in examining all possible future options, you focus first on clarifying the original sources of authority underpinning our current political relationship with the United States, the two Deeds of Cession, as a foundation for a unified approach to determining our political future.