OP ED: AN UNINCORPORATED AND UNORGANIZED U.S. TERRITORY: IS THIS WHAT AMERICAN SAMOA WANTS?
I welcome the recent calls by Governor Togiola and related remarks reported in the media attributed to Prime Minister Tuilaepa Sailele of the Independent State of Samoa concerning American Samoa’s current political status. This has been a longstanding issue that warrants careful deliberation. We have gone through at least three constitutional conventions and three political status commissions, and for some reason or another, the fundamental question of political status has yet to gain traction with our people.
About seventeen years ago, I devoted a chapter in my book, “Navigating the Future,” to a discussion on our relationship with the United States. As I noted then, and even now, we ought to look at whether being an unorganized, unincorporated territory is a good political status for American Samoa. I for one do not support our current political status at all. My biggest fear right now is that the future destiny of our territory is being determined by outside social, political and economic pressures that are not necessarily giving our people a real sense of purpose and direction for the future.
Over the years, when considering our Territory’s political relationship with the United States, I am reminded of the Samoan proverbial expression, “’Aua le gagaua le laau a o mata,” which means, don’t break the branch of the tree while it is still green- - and it may also mean to be careful in breaking a live branch as it may harm the whole tree. I believe the time has come to prepare now to make the necessary changes of our political status to be initiated by our leaders and to seek the full support of our people. It is important to make these changes now before they are forced upon us by outside influence.
Historically, when the three imperial powers — Great Britain, Germany and the United States — carved up the Samoa Islands in the Tripartite Convention held in Washington D.C. in 1899 — not only did they set up new political divisions, but divided the islands and boundary lines that changed traditional districts and even island communities. The Samoa Islands were ultimately divided into two separate and distinct political entities. Western Samoa eventually became a United Nations Trust Territory and was formerly a protectorate of New Zealand, and in 1962, became the first sovereign and independent Pacific Island nation in the Pacific Region.
Next month, the Independent State of Samoa will celebrate its 50th anniversary since it gained independence in 1962, and I want to take this opportunity to extend a heartfelt congratulations to the leaders and people of Samoa for this historical and important achievement.
For American Samoa, our political relationship with the United States is based primarily on the two Deeds of Cession that were signed and agreed upon by the traditional leaders of Tutuila and Aunu’u in 1900, and by His Majesty King Tuimanu’a and his chiefs in 1904. It should be noted that these instruments of cession were not ratified and accepted by the U.S. Congress until 1929!
As an unincorporated and unorganized territory, the dilemma American Samoa now faces evolves around the question of whether it should be searching more for answers to its problems from the U.S. Constitution or the two Deeds of Cession.
Over the years, the territorial High Court has leaned more on the U.S. Constitution and decisions of the U.S. Supreme Court when considering questions concerning the rights of local residents or U.S. citizens living in the territory. This however puts American Samoa’s land-tenure system and other elements of the Samoa culture in a tenuous situation.
Certain provisions of the U.S. Constitution such as the Due Process and Equal Protection clause if applied to American Samoa, are seriously questioned when compared to core principles and values of our Samoan culture. The application of these constitutional provisions to American Samoa will in my opinion, eventually lead to the erosion and eventually permanent loss of our cultural identity as Samoans and our way of life.
It is for this very reason why I strongly oppose the forthcoming lawsuit by the Constitutional Accountability Center (CAC).
On the question whether to grant U.S. citizenship to the residents of American Samoa, I believe this question should be left to the U.S. Congress and the people of American Samoa to decide, and not by federal interpretations of federal laws and the U.S. Constitution.
The court-pending lawsuit by CAC lawyers, while I respect their right to file — is a clear example of the federal court imposing its will through “judicial legislation,” and by the stroke of the judge’s pen, may likely declare that all U.S. Nationals living in American Samoa will automatically become U.S. citizens, without any statutory laws to be enacted by the U.S. Congress to grant U.S. citizenship to U.S. Nationals.
Unlike all other U.S. territories, American Samoans are the only people under U.S. jurisdiction who are classified as U.S. Nationals. And under current federal law, a U.S. National is someone who owes “permanent allegiance” to the United States, but who is neither a U.S. citizen nor an alien.
It is very unfortunate that the pending CAC lawsuit will be using American Samoans as its “bait” to make its legal claim to overturn past U.S. Supreme Court cases that (e.g., Downes vs Bidwell etc.,) ruled on legal issues that came out of U.S. insular cases — especially from Puerto Rico.
What is more disturbing is that our own people have never requested any help from the federal courts on this matter. Furthermore, the Congress has never felt the need to enact legislation to grant U.S. citizenship to American Samoans, for the simple reason that Samoans have yet to decide if whether or not they want to become U.S. citizens.
We must revisit our existing political arrangement with the United States. This is important for our political development as well as for the preservation of out Samoan culture. In effect, with our current political status, we are like a ship that is drifting without a rudder or a compass to direct us.
In my opinion, we must pursue a negotiated treaty with the United States, and work out a defined relationship that is mutually beneficial to both sides. Such a negotiated treaty will have to be endorsed by the President and then submitted to the U.S. Congress for final approval. The process to pursue a new negotiated treaty with the United States may take years, but it is important to start now.
I suggest that, first, the island leaders of Tutuila, Aunu’u, Manu’a and Olohenga (Swains Is,) need to call a “national convention” to deliberate on the kind of political relationship we want with the United States.
Considering the fact that our forefathers thought they had a ”treaty” relationship with the United States, there seems to be a fundamental misconception on what was written in the Samoan language as a “feagaiga” and the English version as “Deed of Cession,” which raises the question of whether these islands were independent and sovereign states at the time these instruments were prepared and signed by their traditional leaders.
Secondly, it is imperative that Tutuila, Manu’a and Aunu’u must become a united political entity. We cannot continue to function under two separate treaties or deeds of cession. I have said repeatedly in the past years that there is no political union in existence between Tutuila /Aunu’u and Manu’a today, as long as these two separate treaties continue to exist and to have official recognition under international law.
Thirdly, there is a need to formulate a statement of principles underlining our desire to either amend the two treaties of cessions or establish an entirely new proposed treaty with the United States. The provisions of such a treaty should define the territory’s political relationship with the United States. There are several options for consideration:
a “covenant” relationship with the U.S. as in the case of the Commonwealth of the Northern Marianas;
a “free association” status like the Federated States of Micronesia, the Republic of Palau and Republic of the Marshall Islands;
a “commonwealth” status with the U.S. and Puerto Rico;
a “trust” responsibility of the U.S. Congress similar to the current autonomous status given to U.S. Native Americans and Native Alaskans;
or maintain the status quo as the unincorporated, unorganized territory.
Ignoring existing problems with our current political status will definitely have serious and profound effect on our Samoan culture and traditions. We cannot claim loyalty to the United States on the one hand, and at the same time refuse to apply the full force and effect of federal laws and fundamental provisions of the U.S. Constitution that are clearly not compatible with our culture and traditions.