Congressman Faleomavaega announced today that he, Resources Committee Chairman Richard Pombo, and Ranking Democratic Member Nick Rahall have written to the Government Accountability Office (GAO) to request that GAO conduct a comprehensive review of the current judiciary system of American Samoa.

 “If GAO accepts our request, this will be the first time in the history of our Territory that a comprehensive study of this magnitude will be undertaken.  For this reason, I want to thank Chairman Pombo and Ranking Member Rahall for their support,” Faleomavaega said.  “They have consistently supported legislation in the Resources Committee that benefits American Samoa and I appreciate their support of our efforts to clarify what can be done to address the jurisdictional and constitutional uncertainties currently challenging our judiciary.”

 “If carried out, this review of our judiciary system will examine the feasibility of designating the High Court of American Samoa to hear federal cases that are usually adjudicated in federal district courts; examine how best to structure a court that would not take jurisdiction over American Samoa’s communal land tenure and matai title cases; and more generally, examine the foundation of U.S. authority over American Samoa and its implications for our local government,” Faleomavaega continued.  “In my opinion, the specific information that GAO would provide through this review process will be extremely useful in our efforts to ensure that our judiciary system can properly serve the people of American Samoa.”

 “I have written to the Governor and the Fono to inform them on this matter, and I will keep them informed as this process develops.  Whatever course of action is eventually taken to address the challenges we face in our judiciary system, I firmly believe we should be fully informed before we make any decision on this important matter,” Faleomavaega concluded.

 The full text of the GAO request letter follows:

Dear Mr. Walker:

We are writing to request that the Government Accountability Office (GAO) conduct a comprehensive review of the current judiciary system in the U.S. Territory of American Samoa.  The purpose of this review would be to assist Congress in the formation of a judicial system that remedies current problems with court jurisdiction and ensures the protection of the fundamental rights of the residents of American Samoa and the territory’s unique political association with the United States for approximately 106 years now.

American Samoa’s political relationship with the United States is governed by the provisions of the two Treaties or Deeds of Cession between American Samoa’s ruling chiefs and the U.S. government signed in 1900 (Tutuila) and 1904 (Manu’a).  The U.S. Congress approved these documents under the 1929 Ratification Act (48 U.S.C. 1661).  Section 1661(c) 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)

Initially, the President delegated this authority to the Secretary of the Navy.  In 1951, President Truman transferred this authority to the Secretary of the Interior where it remains to this day.  Under this delegated authority, the Secretary of the Interior approved a constitution for the Territory of American Samoa first in 1960, and then a revised territorial constitution was also approved in 1967.

The legal ambiguities and constitutional uncertainties that arise from this governmental structure, in which the entire administration of the Territory has been placed under the authority of the Secretary of the Interior, are the reasons we in Congress believe it is necessary to examine what kind of judiciary system is currently in place for the territory.  In part, it is argued, the judicial difficulties in American Samoa stem from the fact that there is currently no federal court in American Samoa to adjudicate the federal cases that arise in the Territory.  In fact, American Samoa is the only territory of the United States with no Article III or statutorily created federal court.  

It is our understanding that the High Court of American Samoa functions as a rough equivalent to a state court in that it adjudicates all matters of purely local concerns.  However, in recent years Congress has also granted limited federal jurisdiction to the High Court to hear certain cases that involve federal statutory issues.  Examples of federal judicial power delegated to the High Court include the authority to decide OSHA issues and ship mortgage actions in American Samoa.  Most federal cases that arise in American Samoa, however, are prosecuted in federal district courts in Hawaii and in Washington, DC. 

The question of jurisdiction and determination of the proper forum has created serious procedural and constitutional issues regarding the Sixth Amendment guarantee of a trial by a jury of one’s peers for those who are charged with a federal crime in American Samoa.  Along with the jurisdictional issues, the adjudication of American Samoa’s federal cases in Hawaii and in Washington DC has also created a heavy financial burden on defendants who, along with their friends and families, bear tremendous costs just to attend court proceedings and to support the defendants’ efforts.  This process is costly not only for criminal defendants but for the prosecution and for all litigants in civil cases.
 
In addition to the difficulties arising from the lack of a federal court presence in the Territory, the ambiguous status of the current local court system under the authority of the Secretary of the Interior raises serious separation of powers, equal protection and due process issues for the residents of American Samoa who for the past three years have been physically taken by FBI agents to Honolulu for prosecution in the federal district court of Hawaii.

In debates regarding how best to resolve these court-related challenges, residents and local leaders in American Samoa have suggested that Congress establish a federal district court in American Samoa and in response to these concerns legislation was introduced in February of this year to establish a federal district court with limited jurisdiction.  However, some fear that even a federal court with limited jurisdiction would threaten American Samoa’s traditional culture and land practices.  Also, some have expressed their preference for Congress to authorize the High Court of American Samoa to hear federal cases that arise in American Samoa.

In order to aid Congress in resolving these jurisdictional and constitutional uncertainties that exist in American Samoa’s court system, we request that the GAO examine in detail the territory’s current judiciary system and recommend options for consideration.  We also request that a GAO review of this matter include a review of the history of the judiciary in American Samoa to determine the sources of current judicial authority and the extent of its compliance with the provisions of both Treaties of Cession and the U.S. Constitution followed by an assessment of the feasibility of conferring federal jurisdiction on the local court. 

The first topic for examination would be the acceptance in 1929 of the American Samoa Deeds of Cession, in which Congress delegated absolute civil, judicial, and military power to the President of the United States, who has since 1951 given this oversight responsibility to the Secretary of the Interior.  The specific question would be, when Congress authorized the President to exercise “all” judicial power in American Samoa, exactly what was the intent of the Congress to give such authority to the President and his assignee?  If the historical record is not clear on the intent of the Congress, what should Congress do now, given the fact that Congress has absolute authority for the control and administration of all U.S. territories (including American Samoa), as noted under the provisions of Article IV, Section 3, paragraph 2 of the U.S. Constitution?

 Other important questions we would like the GAO to examine are: 

1. Under what authority does the Secretary of the Interior appoint justices?  Given that, under the current system, the Secretary of the Interior is responsible for oversight of the Territory, and he/she also appoints the justices of the High Court of American Samoa, what is the basis for determining how many justices should be appointed to the High Court?  Could this problem be resolved by Congress appointing High Court Justices in the same fashion as Article I district court judges are appointed?

2. How does the High Court’s authority compare to that of an Article III or statutorily created territorial court?

3. What status does a High Court justice have?  Is he or she a federal judge or an agency employee?

4. Within the appellate court system in American Samoa, what are the people’s rights of appeal to the federal court system?  Of what significance is the fact that federal judges are included in the appellate court in American Samoa?  Also, appeals of High Court opinions currently are challenged by suing the Secretary of the Interior in Washington, DC.  Would a statute be appropriate to restrict the venue for such lawsuits to the District of Hawaii?

5. Does this court structure ensure that a resident of American Samoa receives equal protection under the law, given that all other states and territories have a right to appeal to either an Article III court or a court created by an act of Congress in which the tenure and independence of the court is assured by statute?  Also, does the equal protection clause apply in American Samoa in the same way as other States and Territories, given that no federal law or Organic Act specifically governs this issue in American Samoa?

6. Is it proper for people charged with federal crimes in American Samoa to be transported to Hawaii or Washington, DC, in light of the Sixth Amendment constitutional guarantee of a trial by jury “of the State and district wherein the crime shall have been committed?”  Could this issue be resolved by extending the venue of the District of Hawaii to include federal crimes in American Samoa?

7. Is it constitutional to give Article III federal jurisdiction to a territorial court that is subject to the authority of an executive agency?  Can a High Court justice be designated to assume the duties of an Article I judge?

8. If Congress is amenable to conferring federal jurisdiction on the High Court, what legislative changes, if any, would be required to allow the High Court to accept this responsibility?

9. Also, if this “hybrid” federal/local court is established, how would the costs of this court be apportioned and from what sources?

10. Would this increase in caseload necessitate new facilities and employees?

11. Given the United States government’s commitment to preserving the traditional culture and values of American Samoa, what recommendations would GAO have for structuring a federal court in American Samoa that would not take jurisdiction over American Samoa’s communal land tenure and chiefly “matai” title systems?

12.  Under the provisions of 48 U.S.C. 1661(c), what does it mean, “Until Congress shall provide for a government of such islands…”?  Does this mean since 1929, Congress has not yet organized or established a government for these islands?  Should Congress be involved in the establishment of such a government?  If so, what kind of government?

13.  Under the Secretary’s authority from the President via the Congress to administer “all civil, judicial and military powers” in the territory, what are the implications of this authority, since now the territory has elected its own governor and House members of the local legislature, and yet Congress has not expressly given approval of American Samoa’s territorial constitution?

14.  Are there conflicts in statutory intent of the Ratification Act of 1929 and the 1983 federal law that required Congressional approval of any proposed amendment(s) to the 1967 territorial constitution?

In conclusion, we in Congress are dedicated to ensuring that our judiciary system can properly serve the needs of the United States and the people of American Samoa.  To that end, we believe that a GAO study would provide the information needed to achieve the goal of a balanced judiciary.  We would appreciate your assistance and thank you for your consideration of this matter.