Teichert Resisting Temptations in the Garden of Paradise: Preserving the Role of Samoan Custom in the Law of American Samoa

• Publication year: 1999

Gonzaga Journal of International Law

Gonzaga University 721 N. Cincinnati St. Spokane, WA 99202 Phone 800 986 9585

Cite as: Jeffrey B. Teichert, Resisting Temptations in the Garden of Paradise: Preserving the Role of Samoan Custom in the Law of American Samoa, 3 Gonz. J. Int'l L. (1999-2000), available at http://www.across-borders.com.

Resisting Temptation in the Garden of Paradise: Preserving the Role of Samoan Custom in the Law of American Samoa

Jeffrey B. Teichert, J.D.

Jeffrey B. Teichert is an Associate at Budd-Falen Law Offices, P.C., in Cheyenne, Wyoming, and practices law in federal courts throughout the United States and before federal agencies. From 1994 to 1996 Mr. Teichert served as a Judicial Law Clerk to Chief Justice F. Michael Kruse and Associate Justice Lyle L. Richmond of the High Court of American Samoa. Mr. Teichert wishes to thank the Justices for their professional mentorship, and their training in Samoan culture. The views expressed herein are, of course, the author's alone, and do not necessarily reflect the views of the High Court or the Justices themselves. There are many other gracious people in the Samoan islands including Associate Judges of the high court, Samoan chiefs, religious leaders, local attorneys, government officials, and friends whose influence is present in the pages of this article, but who are too numerous to mention individually.

Table of Contents

I. Introduction

II. Why Protect Samoan Culture?

III. Mechanisms for Preserving Samoan Culture

A. The Cession Treaties. . . The Foundation

B. Government Recognition of Matai

C. The Senate

D. Associate Judges of the High Court

E. Statutes Protecting Communal Land

F. The Secretary of Samoan Affairs

IV. The "Policy" Clause of Article I, Section 3 of American Samoa's Constitution

A. The Policy Clause as a Rule of Construction

B. The Best Interest Test

1. Strict Scrutiny

2. Mid-Tier Scrutiny

3. Rational Basis Test

C. Statutes Codifying Samoan Law

D. Dangers in Using Custom to Override Statutory Law

V. Conclusion

I. Introduction

American Samoa is a place of spectacular natural beauty and rich cultural tradition, and is held by its highest court to be the "actual historic location of the Garden of Paradise."1 At dawn and twilight in this South Pacific territory the sky becomes a colossal prism, showering light through multi-faceted clouds. Sunrises and sunsets transform the sky to flames of orange, pink and purple, reflected on the surrounding ocean in brilliant splendor. Sunrises and sunsets in the Samoan islands seem to fill the whole sky. The assortment of lights in the sky is enchanting even at midday as it produces surreal silver reflections within immense accumulations of cloud, sometimes resembling a Maxfield Parrish painting. The tropical moon mirrored on the ocean or gliding serenely among luminous clouds, amid the sound of wind in the palms, rarely fails to summon the romantic sense of imagination that is so often associated with the islands of the south seas.

The Samoan archipelago itself is a luxuriant tropical rain forest in the center of the Polynesian chain. Lush volcanic mountains and cliffs carpeted with dense jungle rise inspiringly out of beautiful aquamarine waves. Blue tide pools, lava beaches and cliffs, and geyser-like blow holes add color and charm to a magnificent coastline.

In American Samoa, a European style home may be seen in the same village with a traditional Samoan fale (fah-lay), which consists of a roof supported by a series of pillars. Most fales are now made of concrete, have roofs made of tin, and are often painted bright colors. There are dozens of picturesque little villages manifesting these fales throughout the country areas of Tutuila (the most populous island of American Samoa). In the evening, children wearing lavalavas (traditional knee length skirt) can be seen playing football, cricket, or volleyball in the center of the village; or swimming in the ocean, which is often as warm as bath water. At 6:30 p.m. the people of each village assemble for Sa (prayer service). At night, a group of untitled men known as the Amauga (ah-mung-ah), patrol the village to prevent mischief. Beautiful Spanish style churches rise out of the center of a number of villages. Some of these churches were built during the missionary period, and reveal tasteful architecture and craftsmanship.

This article examines the legal implications of American Samoa's efforts to preserve its unique culture, the fa'a Samoa ("Samoan way"), amid the inevitable changes that it continually confronts as it takes its place in the modern world. The fa`a Samoa is difficult to define because it is more than merely a set of laws, norms, and social conventions. The fa`a Samoa is the essence of being Samoan, and includes a unique attitude toward fellow human beings, unique perceptions of right and wrong, the Samoan heritage, and fundamentally the aggregation of everything that the Samoans have learned during their experience as a distinct race.2

Part I of this article examines the advantages and challenges of protecting Samoan culture; Part II examines various legal mechanisms for protecting Samoan culture; and Part III provides a model for interpreting Article I Section 3 of the Revised Constitution of American Samoa, as a unique tool for preserving Samoan culture.

II.Why Protect Samoan Culture?

Unlike Great Britain and its former American colonies, which developed common law principles gradually over centuries of evolution and experience,3 Samoa adopted its westernized legal and political system only a generation ago. Only one year after the cession of Tutuila, the U.S. Supreme Court considered the legal and practical difficulties of imposing an "Anglo-Saxon" Constitution upon an indigenous culture with dissimilar customs and traditions. In that case, the Court held that the United States Constitution was not fully applicable in the territories.4 In American Samoa, western liberal philosophy was abruptly overlaid upon a legal and political tradition, which had evolved in a very different direction. This mixing of political cultures created a society with the forms of democracy, but not yet the attitude or experience of a self-governing people.5

In a similar way, modern technology has been introduced abruptly in Samoa, unlike western nations where it developed over centuries. As the west has developed technologically, moral and ethical rules have evolved to deal with the resulting problems. Most western people now view conduct such as driving while intoxicated or littering the countryside with trash to be morally disgraceful, in addition to being illegal. Samoa did not have the benefit of centuries of technological evolution, and western visitors are frequently astonished at the sight of beaches, roadsides, and forest trails littered with plastic containers and beer bottles (which is a chronic but improving problem for Samoa). One simple reason for this problem is that the western mores dealing with non-bio-degradable waste have not yet been fully embraced, even though vigorous laws against littering are on the books and are endorsed by Samoan leaders.6 Furthermore, it is possible that traditional indigenous rituals for waste processing have not been effectively utilized by the imported political system, because the colonial rulers of the past did not understand these rituals.7 Prior to contacts with Europeans, the Samoan people developed a political system which was grounded in the harmony of community and ecology. Encouraging preservation of the forest and species diversity was culturally enforced.8 The arrival of new attitudes, technologies, and ways to harness the resources of the land, however, has created a series of ecological and aesthetic problems which Samoan society was not adequately prepared for.9 One simple manifestation of this principle can be observed by driving from the Pago Pago harbor area to either the eastern or western shores of Tutuila. The scenery and attire of the people becomes gradually more traditional and less westernized as one travels further from the harbor area (which is dominated by the westernized central government). Similarly, the cleanliness of the villages seems to gradually increase in proportion to their distances from the harbor area. This is attributable, in part, to the fact that traditional government by local matai and village councils engenders a healthy degree of local pride, and provides the villages with the freedom to implement solutions with which the people are culturally familiar. Furthermore, the Samoans traditionally feel a genuine bond with their family land such that the land, itself, is virtually considered a member of the family.

In much the same way as the abrupt introduction of technology in Samoa has led to widespread litter, the abrupt introduction of a republican form of government, individual property ownership, and the paper money system has lead to political corruption and pervasive "misuse and theft of government funds and property."10 Former American Samoa Governor Peter Tali Coleman explains that these difficulties are the natural result of exporting western style democracy to non-western cultures:

[T]he problem of white-collar crime is not unique to Samoa, nor is it unique to the American territories. Stories of political corruption abound on virtually a daily basis...