22 February 2012

American Samoa Delegate to U.S. Congress wants repeal of U.S. veto over amendments to territory's constitution

[United States Congress]
Congressman Faleomavaega announced today that he has sent a letter to Governor Togiola dated 10 February 2012, seeking his input on a draft bill to repeal the 1983 law requiring Congressional approval of amendments to the constitution of American Samoa.  Faleomavaega also expressed his intent to discuss the draft bill with leaders and members of the Fono. 

The full text of the Congressman’s letter to Governor Togiola is included below, and posted at www.house.gov/faleomavaega .

Dear Governor Togiola:

I am writing to inform you that I have prepared a draft bill to repeal the law that requires congressional approval of amendments to the Revised Constitution of American Samoa.  (Section 12 of Public Law 98-213 (December 8, 1983).   

The law that the draft bill will repeal, came about in 1983 after a dispute between the Assistant Secretary of Interior and the American Samoa Government (ASG).   For whatever reason, Mr. Pedro San Juan, the Assistant Secretary of the Interior for Territorial and International Affairs, attempted at that time to remove the Attorney General of American Samoa.  At the request of Governor Peter Tali Coleman, Congressman Fofo Sunia introduced a bill to amend 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...”  The removal of the Attorney General would have undermined the authority of the elected governor of American Samoa, and thereby contradicted the concept of a elected governor to appoint members of his cabinet, which included the Attorney General.   

Addressing Rep. 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.”(emphasis added)

In the opinion of officials of the Department of Justice at the time, Rep. Fofo’s amendment was unnecessary, since Congress could have addressed the problem without requiring Congressional approval of an amendment to the American Samoan Constitution.  The actions by former Assistant Secretary San Juan were rare and unlikely to occur again.  

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 the Sunia amendment passed), any changes would have to be something where there was complete agreement with the elected leadership of American Samoa.” 

Currently, the Department of Interior has allowed ASG to operate under an elected governor and a legislature to administer the affairs of the territory.  

The Territorial Clause of the U.S. Constitution (Article IV, Section 3, Clause 2) gives Congress plenary or absolute authority over all U.S. territories which includes American Samoa.  Congress officially ratified the two Deeds of Cession on February 20, 1929 (48 USC 1661).  In this Act of 1929, Congress then delegated its authority over Tutuila, Manu’a and Aunu’u to the President or his designee.  Under Title 48 U.S.C. Section 1661 (c): it specifically states: 

“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)

It should be noted that for some unknown reason it took Congress some 29 years before finally approving or ratifying these two Deeds of Cession.  Added to this delay in approving the Deeds was the fact that Congress by an Act in 1925, annexed Swains Islands (Olohenga) and declared it “part” of American Samoa, when in fact American Samoa’s Deeds were not ratified or accepted by the Congress until 1929. 

Congress, while delegating its authority over “all” civil, judicial and military powers to the President concerning the administration of these islands, the President by Executive Order then assigned the authority to the Secretary of the Navy.  In 1951, President Harry S. Truman issued Executive Order 10264 which transferred administrative responsibility for the islands to the Secretary of the Interior.  The transfer of all administrative, judicial, and military authority to the President from Congress has not been amended since 1929.

As of now, before any changes can be made to amend any provision of the 1969 Revised Constitution of American Samoa 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. 

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 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.

As you are aware, Section 3, Article I of American Samoa’s Constitution clearly states as a written policy:

“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…” (emphasis added)

Members of Congress 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.  

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.  

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.

As a reminder, it took Congress 29 years to approve our two Deeds of Cession that were approved by our traditional leaders in 1900 and 1904.  There are no assurances that the Congress will act immediately on any proposed change to our territorial constitution.  

Faleomavaega concluded his letter by stating, 

“I look forward to hearing from you as I welcome your advice on this important matter.”