AG argues that Deeds of Cession “is an applicable law”
Pago Pago, AMERICAN SAMOA — In a passionate plea during oral arguments before a federal appeals court, Attorney General Talauega Eleasalo Va’alele Ale contends that the Deeds of Cession “covers more than just ‘alia fishing. It covers and protects culture. The culture of the American Samoa people.”
However, federal attorney Robert Lundman, arguing for the US National Marine Fisheries Service (NMFS), countered that there’s no language in the Deeds that protects fishing rights, and that the US has jurisdiction over territorial waters - including the high seas.
A three-judge panel of the US Ninth Circuit Court of Appeals heard oral arguments last Wednesday at the US Bankruptcy Court in Honolulu, on the appeal by the NMFS of a lower court’s decision invalidating a 2016 rule, which reduces the Large Vessel Prohibited Area (LVPA) in territorial waters.
The LVPA was established by NMFS to protect the local ‘alia fishing fleet, which NMFS and its federal partners argue that the numbers have dropped drastically over the years. To help the US longline fishing fleet based in American Samoa, the NMFS approved a final rule in 2016 reducing the LVPA from 50 feet to 12 feet, over objections from Gov. Lolo Matalasi Moliga and others.
As a result, American Samoa - through ASG - filed a lawsuit against NMFS and other federal agencies. ASG had argued that the final rule “threatened cultural fishing rights protected by the Deeds” — the Deed of Cession for Tutuila and Aunu’u in 1900 and the 1904 Deed for the Manu’a islands. ASG contends that NMFS failed to consider the Deeds in its final rule.
Besides NMFS, other defendants in the ASG lawsuit included the US Commerce Department and its top officials. (Samoa News has reported extensively on this case since 2017 and up to the appeals process.)
Oral arguments was live streamed by the Ninth Circuit, which also uploaded a video after the hearing. Log on to the Ninth Circuit public access site (www.pacer.gov).
In the video, Lt. Gov. Lemanu Palepoi Sialega Mauga and ASG Medicaid Office director Sandra King-Young can be seen in the court gallery.
During oral arguments, Lundman gave background history on the case and cited reasons why NMFS is appealing to reverse the lower court’s decision. Responding to a question from the bench, Lundman said there was no discussion on the Deeds when it came to the final LVPA ruling. However, he argued, there’s no language in the Deeds that protects fishing rights.
“Our argument is pretty simple. The [Deeds] of Cession don’t protect the fishing rights [as] it says nothing about fishing rights,” he told the court. “You can read the [Deeds of] Cession and there’s discussion about individual rights and rights to property and land, but there’s no discussion of water or fishing rights.”
“Even if there was some discussion of fishing rights, those were then, ceded to the United States because the Deeds of Cession ceded all sovereign rights to the land and to the waters. So that’s a one-way transfer of authority of all sovereign rights to the United States” in the Deeds, he further argued.
As to the issue of “cultural practice”, he said, “I don’t think the [Deeds of] Cession protects cultural practice broadly. I think its a specific contextual land - other property.”
Before making his oral arguments, Talauega introduced Lemanu, who is representing the governor in “this important case”.
“This is not your typical case in some ways, but it’s not unusual for the Ninth Circuit to address issues of native cultural right. And that’s what this case is about,” Talauega said in his opening remarks. “It’s a case about protecting the cultural rights of the people that have sworn to be part of the United States Government. And the foundation of this union was based on the protection of cultural rights,” he said.
When the Deeds was signed, “my forefathers...gave up our lands and our sovereignty, we gave everything. We held nothing back. The only thing we held back was the protection of our culture,” he told the judges.
He claimed the US converted the Deeds into federal law and it’s part of federal law that NMFS “should have considered but they did not.” He argued that NMFS, instead, considered the federal Paper Reduction Act. “They thought that was more important than the Deeds of Cession that protects the culture of a people over 120 years old. They considered the [federal] Information Act. Again they thought that was more important,” he said.
Talauega explained that the Deeds identify an area of about 28,000 square miles and most of the area is ocean. “And that’s the area that our forefathers agreed to give to the United States”, which “agreed to accept that and acknowledged that is ours and they are going to protect our rights of that area.”
He went on to explain that this case and issue at hand are not just about fishing in the ocean, it’s the activities that happens on land. “Fishermen go out fishing, when they bring their fish, it’s distributed communally - to the village, to the church pastor. So this is not just an ocean activity. The impact of taking away this protection affects the land and affects the culture of the people on the land,” he said, and repeated this argument at least three times later when asked by the judges on other issues.
“Most of these fishermen don’t fish to make money, it’s part of culture obligation,” he explained. He argued that NMFS’ refusal to consider the Deeds, “threatens...the interest of the American Samoa Government to preserve the culture of fa’aSamoa for all American Samoa including those American Samoans who own longline fishing boats.”
Talauega said the Deeds “is an applicable law just like the Paper Reduction Act, the information Act are considered relevant law.” (NMFS had argued that the Deeds is not applicable law.) “Whether or not this court concludes that the Deeds of Cession covers fishing, the mere fact that the Deeds of Cession covers the entire area under the jurisdiction of this agency (NMFS), that alone is sufficient for it to be considered applicable law,” he said.
The Ninth Circuit has taken the oral arguments and written briefs under consideration and it’s unclear when the court will issue a decision.