Legal Authority Supporting DOl and Congressional Approval or Disapproval of Amendments to the Constitution of American Samoa

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1 Legal Authority Supporting DOl and Congressional Approval or Disapproval of Amendments to the Constitution of American Samoa By Jon M. Van Dyke jonmvandvke{a),gmail.com June 21, 2010 Thi s memorandum is written in response to a request for an opinion by the Chief Legal Counsel fo r the Constitutional Convention Fainuulelei L.F. Ala' ilima-utu regarding "Legal authority supporting and Congressional approval or di sapproval of the thirty two amendments proposed by the Constitutional Review Committee." Although statutory material and co un decisions give the Secretary of Interi or and Congress significant ro les in rev iewing actions of the American Samoan government, and especia ll y amendments to the American Samoan Constitution, it is al so true that the people of American Samoa have an inherent right to self-determi nation and self-governance. The statutory material and court decisions must, therefore, be understood and evaluated in li ght of American Samoa's status as a non-self-governing territory and the right of American Samoans to selfdeterminati on. The United Nati ons continues to list American Samoa as among the 16 remaining territori al entities that are "non-self-governin g," and last month Governor Togiola Tulafono participated in the Pacific Seminar of the United Nations Special Committee on Decoloniali zation in Noumea, New Caledoni a. Governor Tulafono explained to the Seminar that "it is time that a more definiti ve work plan is put in place to forge a more collaborati ve approach between the Territory [of Ameri can Samoa] and... the United States... fo r moving fo rward on issues of political status, local autonomy, self governance and economic development.,, 1 The 1 Ameri can Samoa Govern ment Press Release, Gov. Togio/a PreseJ71S American Samoa '5 Stance {Jf Decolonialization A1eeling in NOl/m ea, May 18, 20 I O. 1

2 American Samoan people, along with other non-self-governing peoples, have the right to selfdetermination and the right to redefine their relationship with the United States. American Samoa came under the flag of the United States beginning on April 17, 1900, when the senior matai on Tutuila and Aunu'u signed a Deed of Cession to the United States. This Deed said that the matai "are desirous of granting" to the United States "full powers and authority to enact proper legislation for and to control the said islands," but also specified that the United States shall respect the rights of the Samoans to their lands and property. The Manua Islands (Ofu, Olosega, and Ta'u) were ceded to the United States in a separate Deed of Cession signed by most of the Manua matai in July Swains Island became part of American Samoa by Joint Resolution of Congress, on March 4, Congress formally accepted the 1900 and 1904 Deeds of Cession in The U.S. Navy governed American Samoa until 1951, when Presidential Executive Order No transferred governing authority to the U.S. Department of Interior. 4 This document stated that "[ w ] hen the transfer of administration made by this order becomes effective, the Secretary of the Interior shall take such action as may be necessary and appropriate, and in harmony with applicable law, for the administration of civil government in American Samoa." This language is broad, but it is also clearly tempered by the requirement that the Secretary's actions be "in harmony with applicable law." The Secretary of Interior issued an order two months after this transfer, stating, among other things, that "[ n]o measure affecting the powers of the legislature shall become effective 2 H.R.J. Res. 244, 68 th Cong., 2d Sess., 43 Stat (1925) Stat (Feb. 20, 1929). 4 Executive Order No , Transfer of the Administration of American Samoa from the Secretary of the Navy to the Secretary of the Interior, 16 Fed. Reg. 6417, June 29,

3 without the approval of the Secretary of the Interior"s and that "[l]aws or regulations bearing on the organization or operation of the judiciary shall be submitted to the Secretary of the Interior for approval prior to promulgation.,,6 American Samoa's first Constitutional Convention took place in 1960, and the Constitution it drafted was approved by the Secretary of Interior and Congress later that year. This document was revised in 1967, and was further amended in 1977, with the consent of the U.S. Secretary of Interior, to provide for the direct election of the Governor and Lieutenant Governor. The U.S. Congress gave its blessing to this Constitution in a 1983 statute (Section 12 of Public Law ), which said that the American Samoa Constitution cannot be further altered without Congress's consent: "Amendments of, or modifications to, the constitution of American Samoa, as approved by the Secretary of the Interior pursuant to Executive Order as in effect January 1, 1983, may be made only by Act ofcongress.,,7 This statute was passed "to prevent the Secretary of the Interior from appointing an Attorney General independent of the elected Governor" of American Samoa, 8 and it has "removed the possibility of unilateral amendment by the Secretary of Interior.,,9 One commentator has suggested that this 1983 enactment converted the American Samoa Constitution into an "organic act," because Congress had embraced the Constitution and now protects it against changes U.S. Dept. of the Interior, Secretary's Order No. 2657, Delimitation of Government Authority, sec. 2(b). 6/d, sec Act of Dec. 8,1983, Public Law , sec. 12,97 Stat (1983),48 U.S.C. 1662a (1993). g ARNOLD H. LEIBOWITZ, DEFINING STATUS 423 (1989). 9 Future Political Status Study Commission of American Samoa, Final Report 58 (Jan. 2, 2007). 10 STANLEY K. LAUGHLIN, JR., THE LAW OF UNITED STATES TERRITORIES AND AFFILIATED JURISDICTIONS (1995). A Constitutional Convention was also held in ]984, but its proposed changes were withdrawn because of objections raised by the U.S. Justice Department, and then further changes proposed in 1986 were 3

4 The role and authority of the Secretary of Interior over actions taken by the American Samoan government and its courts was considered by the U.S. Court of Appeals for the District of Columbia in the 1987 case of Corporation of the Presiding Bishop of the Church of Jesus Christ of the Latter-Day Saints v. Hodel. II This decision is significant in a number of respects, perhaps most importantly because it s'aid that rational-basis scrutiny applies to claims challenging the unique basis of Samoa's judicial system,12 and that it was rational for Congress and the Secretary of Interior to establish this unique judiciary "to further a legitimate congressional policy, viz., preserving the Fa'a Samoa by respecting Samoan traditions concerning land ownership.,,13 The court also explained that because of "Congress' plenary authority over the territories as provided in Article IV" of the U.S. Constitution, Congress has delegated its power to establish courts in American Samoa "to the President, who has in tum delegated it to the Secretary [of Interior].,,14 The Secretary's authority is limited by the Due Process Clause of the Fifth Amendment, and thus "[t]he Secretary might not be able to exercise his authority... in a case to which he is a party," but in other cases the Secretary has broad authority and, according to this opinion, the Secretary could even decide cases directly himself.ls The court nonetheless did review the dispute in the Latter-Day Saints case in some detail, and "rejected by the Samoan electorate, primarily due to proposed changes in the selection of the Samoan Senate." LIEBOWITZ, supra note 8, at Corporation a/the Presiding Bishop a/the Church 0/ Jesus Christ a/the Latter-Day Saints v. Hodel, 830 F.2d 374 (D.C. Cir. 1987). 12 Id at Id at Id at 384. IS Id 4

5 affirmed the decision of the American Samoa High Court because its rulings "did not constitute gross error or arbitrary action in violation of the Fifth Amendment.,,16 This Latter-Day Saints case, now 23 years old, is the most recent federal appellate decision on questions related to federal authority over the American Samoan government and its courts. The opinion in this case has not been reviewed or analyzed further by any subsequent opinions. Some of the broad language in the Latter-Day Saints opinion has been criticized by commentators. Arnold Leibowitz has written that if the broad powers of the Secretary of Interior over the American Samoan government and the power of the Secretary to overturn decisions of the American Samoan High Court is in fact the law, it "depreciates all Samoan government institutions and makes the Samoan Constitution adopted in 1960 a giant deceit." 17 He has explained that this broad claim of power "is without precedent in the treatment of the courts of territories.,,18 Leibowitz concludes by arguing that "[u]nless the national security of the United States is threatened so the President may act constitutionally as Commander-in-Chief, the better view would be to hold there is no power in the Secretary [ of Interior] to overturn actions by the Samoan Government taken within the bounds of the local Constitution." Professor Stanley Laughlin, Jr. agrees that "it seems unlikely that the broad language that Judge Ginsburg used to resolve this [Latter-Day Saints] case would hold up in future cases.,,19 The Future Political Status Study Commission has stated more recently that it is "unsettling" that the Secretary of Interior "arguably could still abrogate the entire [American Samoan 161d at ARNOLD H. LEIBOWITZ, DEFINING STATUS 420 (1989). 18Id at LAUGHLIN, supra note 10, at

6 Constitution] with one strike of his pen,,20 and that "the continuing hold of the DOl Secretary on a number of important aspects of the Territory's political system is delaying a full exercise of self government in the American spirit of democracy.,,21 The Legal Authority for the Approval of Amendments to the American Samoan Constitution by Congress and the Secretary of Interior. As explained above, Congress's authority to approve amendments to the American Samoan Constitution is based on the 1983 statute (Section 12 of Public Law ) asserting that power. This statute was designed to prevent the Secretary of Interior from making any unilateral changes, and it reserves the power to approve any changes to the Congress itself. Even though the Secretary of Interior cannot now unilaterally make any changes to the American Samoan Constitution, the Secretary may still assert the power to review and approve any changes approved by the votes of American Samoa under the 1951 Presidential Executive Order No and the decision of the U.S. Court of Appeals for the District of Columbia in the 1987 Latter-Day Saints Case. 23 Although Congress certainly has the ability to remove this power from the Secretary, it has not done so explicitly, and so it may be that amendments approved by the American Samoan electorate will need approval by both the Secretary of Interior and by Congress before they can take effect under U.S. law. Inconsistent with the Right of American Samoans to Self-Determination. The inability of the people of American Samoa to amend their own Constitution without going through two 20 Future Political Status Study Commission, supra note 9, at 59. Because of the 1983 congressional statute described above, text at notes 7-10, which was explicitly designed to prevent the Secretary of Interior from making unilateral changes to the American Samoan Constitution, it would appear that the Secretary could not in fact unilaterally change or abrogate the American Samoan Constitution, but, under the existing U.S. legal structure, it seems that Congress could do so. 21Id at See supra text at note See supra text at notes

7 layers of federal-government review and approval is inconsistent with the inherent right of selfdetermination that they have as a non-self-governing people. 24 American Samoans can, therefore, seek the assistance of the United Nations Special Committee on Decolonialization to remove these barriers, and Governor Tulafono seemed to suggest that possibility when he attended the Pacific Seminar in Noumea last month. This effort could be part of a broader process to obtain a new act of Congress that would establish "a permanent political status,,25 for American Samoa within "the American family of states and territories,,,26 as recommended by the Future Political Status Study Commission. Legislative Veto. One commentator 27 has suggested that the 1983 requirement that Congress approve any changes to American Samoa's Constitution could be a "legislative veto," and thus would be unconstitutional under recent U.S. Supreme Court decisions, which have said that Congress can act only through the formal process of enacting laws subject to signature or veto by the President. 28 But because the 1983 enactment says that amendments to the American Samoan Constitution "may be made only by Act of Congress," it seems to anticipate the formal bill-passing process applicable to other Acts, rather than a procedure whereby Congress would act on its own without Presidential participation. Examples do exist of other federal-state situations where changes to state legislation can be made only with the approval of Congress, including, for instance, changes to certain provisions of the Hawaiian Homes Commission Act See supra text at note I. 2S Future Political Status Study Commission, supra note 9, at Id at LAUGHLIN, supra note 10, at See, e.g., Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983). 29 Hawaiian Homes Commission Act, 1920, 42 Stat. 108 (1921). This statute was originally enacted by the U.S. Congress in 1921, but in the 1959 statute admitting Hawaii as the 50 th state Congress required the new State of Hawaii to take responsibility for administering the Hawaiian Home Lands Program and Hawaii accepted this responsibility as part of its state constitution. The Hawaii State Legislature can now amend most parts of the statute, 7

8 Limitations on Congress's Authority. Even if Congress has the authority to evaluate and approve changes to American Samoa's Constitution, that authority is limited by the contractual agreement reached between the United States and the Samoan matai who agreed to the cession of their sovereignty in the 1900 and 1904 Deeds of Cession, but specified that United States must respect the rights of the Samoans to their lands and property. These Deeds limit the authority of the United States in a manner somewhat similar to the limits found in the 1840 Treaty of Waitangi,30 whereby the Maori chiefs of Aotearoa (New Zealand) ceded sovereignty, but not their lands and resources, to the British Crown. 31 Conclusion. The authority for Congress to review and approve amendments to the Constitution of American Samoa is based on Section 12 of Public Law , the statute Congress enacted in 1983 claiming that power. The authority for the Secretary of Interior to review and approve amendments is less clear, because of that 1983 statute which was designed to reduce the Secretary's power, but the Secretary may still claim authority to approve based on Presidential Executive Order No (1951) and on the 1987 Latter-Day Saints opinion of the U.S. Court of Appeals for the District of Columbia. This power of Congress and the Secretary of Interior to review and approve amendments is inconsistent with the inherent right of the American Samoan people to self-determination, and it should be eliminated, perhaps with the help of the U.N. Special Committee on but amendments affecting the rights of beneficiaries must be approved by the U.S. Congress before they can take effect. See JON M. VAN DYKE, WHO OWNS THE CROWN LANDS OF HAWAII? (2008). 30 Treaty ofwaitangi, Feb. 6, 1840, reprinted in PETER CLEAVE, THE SOVEREIGNTY GAME: POWER, KNOWLEDGE AND READING THE TREATY (1989). 31 See, e.g., Jon M. Van Dyke, The Evolving Legal Relationships Between the United States and Its Affiliated U.S.-Flag Islands, 14 UNIVERSITY OF HAWAII LAW REVIEW 445, (1992). 8

9 Decolonialization, as part of the process of establishing a "permanent political status" for American Samoa within the U.S. political community. 9