Faleomavaega submits to Gov draft to repeal 1983 law requiring
Congressman Faleomavaega Eni last week submitted to Gov. Togiola Tulafono a draft of a proposed federal legislation that would repeal a 1983 law requiring congressional approval of amendments to the constitution of American Samoa.
Faleomavaega’s letter to the governor expressed his intent to discuss the proposed bill, saying he will also request an opportunity to confer with leaders and members of the Fono on this matter.
Faleomaveaga explained that the law the draft bill will repeal, came about in 1983 after a dispute between then Assistant Secretary of Interior Pedro San Juan and the American Samoa Government (ASG).
San Juan attempted at that time to remove the local attorney general but at the request of then Gov. Peter Tali Coleman, Congressman Fofo Sunia introduced a bill to amend provision of federal law 48 U.S.C. 1662, as a way to “… prevent the Assistant Secretary of Interior from removing the attorney general who was appointed by the popularly elected Governor and confirmed by the legislature...”, Faleomavaega explained.
The removal of the Attorney General would have undermined the authority of the elected governor of American Samoa, and thereby contradicted the concept of an elected governor to appoint members of his cabinet, which included the Attorney General, he said.
Addressing Fofo’s concerns, Congress enacted under Title 48 U.S.C. 1662a, the new law which now states: “Amendments of, or modifications to, the constitution of American Samoa, as approved by the Secretary of the Interior pursuant to Executive Order 10264 as in effect January 1, 1983, may be made only by Act of Congress.”
“The actions by former Assistant Secretary San Juan were rare and unlikely to occur again,” he explained. “An indication of the possibility of an event occurring again was reaffirmed by San Juan’s successor, Assistant Secretary of Interior Robert Montoya who at a congressional hearing held May 8, 1984 stated that ‘if things would revert back to the way it was in the past (before Fofo’s amendment passed), any changes would have to be something where there was complete agreement with the elected leadership of American Samoa”.
Faleomavaega points out that as of now, before any changes can be made to amend any provision of the 1969 Revised Constitution of American Samoa, it requires, first the approval of the majority of the voters, then the approval of the Secretary of Interior, and finally approval of the Congress.
“It should be noted there is no guarantee that such amendments will be approved by the Congress,” he said.
Another area of concern is that Congress has never taken the opportunity to carefully review the provisions of American Samoa’s Constitution. For example, the selection process of our local Senators.
“There will likely be questions raised why our Senators are not elected. While we can argue that it was a way to strike a balance between our culture and democracy, I am certain some Members [of Congress] will insist on the election of our Senators and that the Senators should be represented not just by our Matai or Chiefs, but all the people living in their districts,” he said.
Faleomavaega also points to Section 3, Article I of American Samoa’s Constitution which states that: “It shall be the policy of the Government of American Samoa to protect persons of Samoan ancestry against alienation of their lands and the destruction of the Samoan way of life and language, contrary to their best interests. Such legislation as may be necessary may be enacted to protect the lands, customs, culture, and traditional Samoan family organization of persons of Samoan ancestry…”
He said congressional members could find the provision providing for “persons of Samoan ancestry” in violation of the Equal Protection Clause and Due Process Clause of the U.S. Constitution.
“These members of Congress who object to racial restrictions in the American Samoa constitution could propose legislation to eliminate racially restrictive laws in America Samoa,” he said and cited for example, there are laws that require a 50% Samoan blood quantum to own land, or to receive a Matai title.
“Since Congress has plenary authority over the territories under the Territorial Clause, any action by Congress eliminating racial restrictions in American Samoa can be challenged, but the results of a federal court decision may not be in our favor,” he said.
He said the proposed legislation will allow the people and leaders of American Samoa to work closely with the Secretary of the Interior.
“If there are needed changes to be made to the Constitution, it will be a lot easier to make the changes without Congressional involvement,” he said.
Download complete context of the Congressman’s letter in a news release from his office by clicking on attachment.