Congressman Faleomavaega announced today that he has written to His Excellency Francisco Carrion-Mena, Permanent Representative of Ecuador to the United Nations
and Chairman of the Special Committee of 24, also known as the Decolonization Committee. A full text of Faleomavaega’s September 12, 2011 letter, which was copied to U.S. Secretary of State Hillary Clinton, U.S. Secretary of the Interior Ken Salazar, U.S. Ambassador to the UN Susan Rice, Governor Togiola, the Lieutenant Governor, President Gaoteote Tofau and Senators, and Speaker of the House Savali T. Ale and Representatives, is included below.
Dear Mr. Chairman:
In response to the United Nations Caribbean Seminar on the Eradication of Colonialism held in Kingstown, Saint Vincent and the Grenadines from May 31 to June 2, 2011, I am writing to request that my letter be made part of the record regarding certain issues relative to American Samoa’s current political, social and economic relationships with the United States of America.
American Samoa: An Unincorporated and Unorganized U.S. Territory
American Samoa does not share the same political history as other non self-governing states as defined by the UN Decolonization Committee. Unlike other insular territories, American Samoa was not annexed by the United States as a result of war or conquest.
Instead, on April 17, 1900, the traditional Chiefs of Tutuila freely ceded the islands of Tutuila and Aunu’u to the United States. In 1904, the King and Chiefs of Manu’a freely ceded their islands. The U.S. Congress ratified these Cessions in 1929 (48 U.S.C. 1661).
Although the U.S. ratified the Deeds of Cession in 1929, the Ratification Act in 1929 contains no express will of Congress for an organized government for American Samoa but rather delegates its authority over the territory to the President or his designee. Title 48 U.S.C. Section 1661 (c) states:
“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)
In 1951, President Harry S. Truman issued Executive Order 10264 which transferred administrative responsibility for the islands of American Samoa from the Secretary of the Navy to the U.S. Secretary of the Interior. The transfer of administrative, judicial, and military authority from the Congress to the President has not been amended since 1929.
As such, American Samoa is considered an unorganized territory of the U.S. because Congress has yet to officially “organize” a government for Tutuila and Manu’a. American Samoa is considered unincorporated because according to Supreme Court decisions regarding the constitutional rights of insular territories, Congress has never intended to incorporate American Samoa as a State of the Union.
Additionally, the Territorial Clause of the U.S. Constitution (Article IV, Section 3, Clause 2) is very clear that Congress has plenary powers over any of the U.S. Territories including American Samoa. So, whether American Samoa decides to either amend certain provisions of the two Deeds of Cession or establish an entirely new agreement with the United States, the terms of such agreement would have to be approved by the U.S. Congress.
American Samoa’s Political Status
I continue to remind the leaders of American Samoa, in order to move forward on the issue of political status, we must first look inward to resolve ambiguities in the two deeds of Cessions that form the basis of our relationship with the United States. As I gave in my testimony in 2006 before the American Samoa Political Status Commission hearing at BYU-Hawaii in Laie, there are several ambiguities in these documents that may frustrate any negotiations for an agreement with the United States in the future.
One source of ambiguity is that in the Samoan version of the Deeds, our chiefs consistently used the term feagaiga, which means treaty. To our Samoan chiefs this treaty relationship meant that Samoans would maintain a measure of autonomy. However, in the English version, the word “treaty” is never mentioned. Instead, the agreement is referred to as a “deed.” The problem inherent in this ambiguity is that the term “deed” suggests ownership of property rather than a sense of the rights and privileges of a sovereign people. Therefore, a deed of Cession offers the people of American Samoa something less than the sovereign status that a treaty would provide.
Subsequently, while these two deeds have proven helpful in providing stability to the people of American Samoa for more than 100 years, they 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, etc.
Another source of ambiguity stems from the fact that the two deeds of Cessions were negotiated separately between the United States and Tutuila and Aunu’u in 1900, and with Manu’a in 1904. As such, there is no official declaration of a political union between the island groups of Tutuila, Aunu’u and Manu’a.
Therefore, in moving forward:
1. I suggest that the leaders of Tutuila, Aunu’u, Swains Island and Manu’a 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.
2. I recommend that a territorial convention be called to deliberate on the existing political relationship with the United States. Subsequently, I believe that the American Samoa Government (ASG) must officially declare a statement of principles underlining the desire of the people of American Samoa to either amend certain provisions of the two deeds or establish an entirely new agreement with the United States. Such an 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.
3. 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, ASG 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.
Until the leaders of Tutuila, Aunu’u, Swains and Manu’a have dealt with the issue of political status, we will continue to be subjects to the agreement under the deeds of Cessions. As it stands, we cannot claim loyalty to the United States and at the same time refuse to apply standards and protections that are required under federal laws.
The U.N. Decolonization Committee’s Relationship with American Samoa
In the past, I have suggested that American Samoa stay on the list of colonized territories until our unincorporated and unorganized status was defined in a manner which included the views of the voters of American Samoa. On March 30, 2006, I asked Ambassador Bolton to clarify U.S. policy regarding American Samoa’s status relating to the UN Special Committee of 24 (C-24), also known as the UN Decolonization Committee.
On November 2, 2006, Ambassador Bolton responded by stating:
“The C-24 has no authority to alter in any way the relationship between the United States and American Samoa and no mandate to engage the U.S. in negotiations on the status of American Samoa.”
Having said this, he went on to explain that:
“By designating American Samoa as a non-self-governing territory under Chapter XI of the UN Charter in 1946, the U.S. voluntarily accepted several obligations under Article 73 of the Charter. Among these is the obligation to provide regularly to the UN ‘statistical and other information of a technical nature relating to economic, social, and education conditions in the territory[y]…’ The U.S. duly submits annual updates on American Samoa and the other U.S. Territories to the C-24 as a demonstration of our cooperation as an administering power under the UN Charter. The annual reports are also an opportunity to correct any errors in information the C-24 might have received from other sources.”
However, Ambassador Bolton also noted that even though the “U.S. could, if it chose, cease reporting to the C-24 about American Samoa, this would not by itself cause the Committee to remove American Samoa from its list of non-self governing territories.”
He went on to explain that:
“The UN General Assembly agreed in 1960 to a set of principles governing whether a territory is ‘non-self governing.’ The U.S. would have to provide the Committee with information showing that these principles were satisfied before the Committee would agree to ‘de-list’ American Samoa.”
Given that the U.S. would have to satisfy certain requirements to ‘de-list’ American Samoa but knowing that the UN cannot alter the relationship between the U.S. and American Samoa, it should be understood that the UN is without any authority to amend or change any law or regulation that the United States provides for the administration of American Samoa as a U.S. Territory. This is also made clear in our history from 1960 forward.
The 1960 Territorial Constitution and Forward
Having already established that the Territorial Clause of the U.S. Constitution (Article IV, Section 3, Clause 2) is very clear that the U.S. Congress has plenary powers over any of the U.S. Territories including American Samoa, it is important to note American Samoa’s political development since 1960.
In 1960, the people of American Samoa adopted a Constitution. The Constitution was revised in 1966 and was approved by the Secretary of the Interior on June 2, 1967. In 1967, the Revised Constitution of American Samoa provided for an elected Legislature, or Fono, consisting of a Senate and a House of Representatives. However, it did not provide our people with the right to elect our own Governor and Lieutenant Governor. At the time, American
Samoa was the only remaining insular area of the United States which did not have a popularly elected Governor and Lieutenant Governor.
On June 10, 1976, Congressman Phil Burton, Chairman of the House Subcommittee on Interior and Insular Affairs, took notice of American Samoa’s situation and introduced a bill to make it possible for our Governor and Lieutenant Governor to be popularly elected rather than appointed by the Secretary of the Interior. As staff counsel to the Committee on Interior and Insular Affairs, Congressman Burton instructed me to draft this legislation which the U.S. House of Representatives overwhelmingly passed by a landslide vote of 377 to 1.
Instead of sending his bill to the Senate, Congressman Burton decided to consult further with the Secretary of the Interior, Rogers C.B. Morton, about American Samoa’s unique political status as an unincorporated and unorganized territory which was and is unlike the organized territories of Guam and the Virgin Islands. As a result of their consultations, the two agreed that Secretary Morton would issue a Secretarial Order (No. 3009) authorizing the American Samoa Government to pass enabling legislation to provide for an elected Governor and the Lieutenant Governor.
Secretary Morton’s Order No. 3009 amended American Samoa’s Constitution to specifically provide for an elected rather than an appointed Governor and Lieutenant Governor. Order 3009 was also in keeping with the will of the majority of voters in American Samoa who voted in favor of electing their own Governor and Lieutenant Governor in a plebiscite that was held on August 31, 1976.
Furthermore, Chairman Phil Burton introduced legislation on August 2, 1978 to provide that the Territory of American Samoa be represented by a nonvoting Delegate to the U.S. House of Representatives. Again, Chairman Burton instructed me to draft this legislation which became Public Law 95-556 and was made effective October 31, 1978.
Since this time, American Samoa has had representation in the U.S. House of Representatives. For those who refer to American Samoa’s Delegate as a “non-voting Delegate,” the portrayal is misleading. According to the Congressional Research Service, “in the 1970s, Delegates gained the right to be elected to standing committees (in the same manner as Members of the House) and to exercise in those committees the same powers and privileges as Members of the House, including the right to vote. Today, Delegates enjoy powers, rights, and responsibilities identical, in most respects, to those of House Members from the states. Like these Members, Delegates can speak, introduce bills and resolutions and offer amendments on the House floor; and they can speak, offer amendments and vote in House committees.”
The only exception is the vote on the House Floor. Delegates from the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands, the Commonwealth of the Northern Mariana Islands and American Samoa cannot vote on the House Floor because none of these territories have yet achieved statehood. Nonetheless, Territorial Delegates can and do exercise the same powers and privileges identical in most respects to House Members from the states, and such was the case with minimum wage law.
U.S. Minimum Wage Law
In his statement submitted to the Committee of 24 before the United Nations Caribbean Seminar on the Eradication of Colonialism held in Kingstown, Saint Vincent and the Grenadines from May 31 to June 2, 2011, Governor Togiola states that minimum wage law was implemented “without local consultation, without appropriate studies, without due consideration of the uniqueness of Tutuila and Manu’a, and without taking into consideration our plea which was substantially better informed on the specific circumstances of our economy.” “We were forced,” he says, “into accepting a law that was seriously injurious to our economy and was sure to harm significantly our ability to make our way in the world economically.”
On the contrary, for more than 55 years, American Samoa has been the backbone of the U.S. tuna fishing and processing industries. Today, the U.S. tuna processing industry includes three major brands of canned tuna – StarKist, Chicken of the Sea and Bumble Bee.
StarKist is headquartered in Pittsburgh, Pennsylvania and has more than 1,000 employees in the U.S. Territory of American Samoa. StarKist is a U.S. corporation and pays U.S. taxes. StarKist is also a subsidiary of the Dongwon Group, a leader in the food, beverage and fisheries industries in South Korea.
Chicken of the Sea is a subsidiary of Thai Union of Thailand, the world’s largest producer of canned tuna. Chicken of the Sea has about 200 tuna cannery workers in Lyons, Georgia.
In 2004, Bumble Bee was sold off to Connors, a Canadian company, and in 2010 Bumble Bee was purchased by Lion Capital, a British private equity firm. Bumble Bee employs about 500 fish cleaners in the U.S. The bulk of Bumble Bee’s fish cleaners are not U.S., but foreign workers employed in low-wage countries.
American Samoa’s private sector economy had been nearly 80% dependent, either directly or indirectly, on two of the three major brands -- StarKist and Chicken of the Sea -- which until recently employed more than 74 percent of our private sector workforce.
On September 30, 2009, one day after American Samoa was struck by the world’s most powerful earthquake which set off a tsunami that left untold damage and loss from which the Territory has not recovered, Chicken of the Sea closed down its operations in American Samoa, leaving more than 2,000 workers without jobs.
Chicken of the Sea left without the courtesy of discussing its departure either with myself or the Governor of American Samoa, although Samoan workers made Chicken of the Sea one of the most profitable brands of canned tuna in the U.S. Chicken of the Sea left for Lyons, Georgia where it now employs a skeletal crew of about 200 workers. Chicken of the Sea pays its workers in Georgia some $7.25 per hour, almost twice as much per hour as it ever paid Samoan cannery workers.
From 1954 forward, when Chicken of the Sea’s then parent company, Van Camp, first arrived on American Samoa’s shores, the company set about to suppress the wages of Samoan workers by demeaning their worth and work. In 1956, the company testified before the U.S. Senate Committee on Labor and Public Welfare, urging consideration of legislation for the exemption of American Samoa from the wage and hour provisions of the Fair Labor Standards Act of 1938.
Commenting on his company’s desire to pay Samoan workers 27 cents per hour as opposed to the prevailing minimum wage rate of the time at $1 per hour, Chicken of the Sea’s then parent company said:
“The Samoans are Polynesians. They are not American citizens.”
About the women of American Samoa, the company said:
“[We] now employ 300 Samoans, mostly women…. [W]ages range from 27 cents per hour for the women who clean the fish to $1 per hour for 1 employee, who is a technician…. The difference in labor costs is attributed to the lower production output in Pago Pago, where we have found that it takes from 3 to 5 Samoans to produce what 1 stateside employee can produce.”
Mr. Collins, legal counsel for Van Camp, put it this way:
“The company has found that it takes from 3 to 5 Samoan workers to perform what 1 continental worker in the United States will do. It is therefore felt that this justifies a lower rate for Samoans.”
Forgive me for pausing here but what company, in good conscience, would suppress wages in a U.S. Territory on the claim that the more than 300 Samoan women cleaning fish in American Samoa for 27 cents an hour were somehow inferior to the stateside employees being paid $1 per hour?
While some in American Samoa may not think this history matters, it does, especially when 55 years later, Chicken of the Sea shut its doors in American Samoa and immediately paid stateside workers in Lyons, Georgia twice as much as they were currently paying our women and men in American Samoa. Different year, same Chicken of the Sea.
This is the kind of prejudice and racism and gender inequality that workers in American Samoa have been dealing with for 55 years. And over the years, local government leaders were always being pressured not to increase the wages of cannery workers, or else the companies would leave the territory. This is why when there were occasional wage increases, they were as small as 2 cents or 3 cents per hour, even though since 1938 the Fair Labor Standards Act (FLSA) has applied to American Samoa.
After enactment of the FSLA, Industry Committees were established for American Samoa and other U.S. Territories for purposes of phasing low-wage industries in to the minimum statutory wage because the U.S. Congress believed that application of mainland minimum wage rates to territorial island industries would “cause serious dislocation in some insular industries and curtail employment opportunities.”
While Industry Committees were phased out in other U.S. Territories which eventually paid their workers in accordance with mainland wages, from 1956-2006 minimum wage rates in American Samoa continued to be determined by Special Industry Committees, and ASG is on record voting to accept whatever the management and lawyers for these canneries felt wages for our cannery workers and other low-wage earners should be.
I am on record as voting to increase the wages of our lowest-paid workers because I believe that a Samoan is entitled to the same pay from the same corporation if he/she does the same work as any other man or woman born in any other part of America. Senator Borah of Idaho said it best in the heat of the 1937 Fair Labor Standards debate. He said it was his view that “whether North or South, East or West, there [is] a standard of American living, and we ought to recognize that and fix a minimum wage upon that basis.”
Regrettably, ASG feels differently and has suggested to the UN that the U.S. federal government over-stepped by increasing minimum wage in American Samoa. This is not the case. American Samoa was given a free pass for 50 years. But when minimum wage was raised all across America in 2006, Congress determined that it was time to raise minimum wage in American Samoa and CNMI which were the only two remaining U.S. Territories which were not up to federal minimum wage standards, and I supported a one-time increase of $0.50 cents per hour. But because our cost of living is as high or higher than the mainland, minimum wage was increased by $0.50 cents per hour for a period of three years until the U.S. Congress, at my request, stopped further increases until additional study could be undertaken, given that there were never any comprehensive reports issued regarding the overall economy of the territory or costs of living.
Regarding minimum wage’s impact on the tuna industry in the Territory, I would refer the C-24 to the 2010 report issued by the U.S. Government Accountability Office (GAO) which clearly showed that before minimum wage ever went into effect in American Samoa, our canneries were already operating at about a $7.5 million loss per year. Put another way, our tuna canneries were already in the hole not because of minimum wage increases but because the tuna industry itself has dramatically changed with Chicken of the Sea and Bumble Bee adopting a business model of outsourcing tuna preparation to cheap foreign labor and then bringing the almost finished product into small U.S. operations for final packaging. A cannery like StarKist that cleans whole fish in American Samoa simply cannot compete against canneries like Bumble Bee and Chicken of the Sea that buy loins from low-wage rate countries like Thailand that pay their fish cleaners $0.75 cents and less per hour.
So contrary to Governor Togiola’s assertions, the primary factor for the collapse of our economy is not our wage rates but the wage rates of foreign countries and the global economic recession. Other factors that also impacted our tuna industry include higher fish costs, higher shipping costs, higher fuel costs, and better local tax incentives offered by Lyons, Georgia as well as Thailand.
It should also be noted that a new cannery, Tri-Marine, one of the world’s largest fish trading companies, chose to invest in our Territory knowing that our wage rates have been increased by $1.50 per hour which undercuts Governor Togiola’s argument that minimum wage increases have collapsed our tuna industry or led to ASG’s fiscal failure.
In its 2011 report, the GAO openly admits that “it is difficult to distinguish between the effects of minimum wage increases and the effects of other factors, including the global recession beginning in 2009, fluctuations in energy prices, global trade liberalization.” The GAO also reiterated that “American Samoa had lower income and higher poverty rates than the mainland US” and found that the ‘average earnings of workers who maintained employment rose from 2006 to 2009, but available data show that the increase was not sufficient to overcome the increases in prices.”
ASG remained largely unaffected by minimum wage increases because most of its employees earned more than $1.50 above the local minimum wage set for government workers in 2007, as the GAO stated.
American Samoa’s Current Economic Status
As for the American Samoa Government’s projected local shortfalls, the GAO also reported that ‘local government spending exceeded revenues each year from 2005 to 2009.’ The GAO showed that more than $240.8 million has been made available for ASG by the U.S. Congress through the American Recovery and Reinvestment Act and that $61.6 million had been disbursed at the time of the report.
The GAO also noted that American Samoa has been designated as a ‘high-risk’grantee by the U.S. Department of the Interior as recommended by the Department’s Inspector General and GAO. The GAO further noted that ‘the office will remove this high-risk designation once the American Samoa Government demonstrates its compliance with certain fiscal and internal accounting requirements.’”
In private discussion groups, the GAO said ‘private sector employees said they were concerned about the fiscal status of the local government and the possibility of harmful tax increases.’ Private sector employees also ‘generally opposed additional minimum wage increases but said that a number of other factors made it difficult to do business in American Samoa. For example, they said increased in prices of utilities, shipping, and raw materials; an outdated tax structure; low levels of investment; and business licensing problems also make it difficult to establish and do business in American Samoa.”
Clearly, the issues facing American Samoa’s economy are complex and neither minimum wage nor the U.S. federal government is the driving cause of ASG’s trouble. More importantly, the U.S. is doing its part to help American Samoa, and the amount of federal funding and technical assistance to the Territory from the U.S. underscores this point. In fact, American Samoa continues to be the only State government that continues to receive funding from the U.S. Treasury for the operations of its local government.
Constitutional Convention of 2010
So, rather than asking the U.S. to work with the United Nations to move American Samoa forward “on a path to greater local autonomy, self governance, and economic development” as noted in the Governor’s statement, it is my hope that the United Nations will uphold the U.S. position that “the C-24 has no authority to alter in any way the relationship between the United States and American Samoa and no mandate to engage the U.S. in negotiations on the status of American Samoa.”
While I deeply appreciate the work the C-24 is doing to help those non-self-governing territories that were actually victimized by colonizers, any change in the relationship between the U.S. and American Samoa must be determined by the people of American Samoa and the United States and not the United Nations.
On June 18, 2010, the governor issued Executive Order No. 005-2010, calling for the Constitutional Convention of 2010, which was convened from June 21 and adjourned on July 2. Delegates to the convention, selected by their respective County Councils, considered and voted on proposed changes to the Revised Constitution of American Samoa of 1967. As a result, 39 amendments were put forth and approved by the Constitutional Convention. However, the voters in a referendum rejected the proposed amendments by a vote of 70.2% opposed to the amendments.
Among the 39 amendments in the referendum, one would stop the enforcement of any U.S. federal law which local officials believe would be detrimental to the territory. It would give the American Samoa Government the right to opt out of federal laws deemed harmful to the local community. While it passed the Convention by the narrowest of margin, I objected to the proposed changes as I believe they were inappropriate as well as unconstitutional under the U.S. Constitution and under the terms of our unique political relationship with the United States. Again, when the matter was put to the voters of American Samoa, 70.2% also objected to the proposed changes.
As I stated earlier, the leaders of Tutuila and Manu’a need to first set the parameters of our unique, political relationship with the United States, which should clearly define how federal laws apply to the territory. It is premature therefore to make changes to our relationship with the federal government when we have yet to fully review and resolve the issue of our two deeds of Cessions that provide the basis of our relationship with the United States.
I believe the voters of American Samoa agree and this is why they rejected what was put forward by the Convention. I believe our voters rejected these proposed changes because American Samoa has enjoyed a long and proud tradition of being part of the American family. Our sons and daughters have served in record numbers in every U.S. military engagement from WWII to present operations in Iraq and Afghanistan. We have stood with the U.S. for the past 111 years, and the people of American Samoa honor the sacrifices of our military men and women who have fought and died for the liberties which we cherish.
Faleomavaega concluded his letter by stating, “In honor of those sacrifices, I am requesting that my letter be made part of the C-24 record and I am hopeful that our territorial Legislature will also present its views on these important issues.”