question custom

Land case may question custom

THE Mormon Church has appealed against a US court decision de priving it of land it claims it owns in American Samoa. The US District Court for the District of Columbia in Washington had decided last year (RIM August, ’B6 p 9) that the land in question belonged to a Samoan family, and not the Mormons, who have been occupying it since 1906.

The Mormons have now car ried their appeal to the second highest level of the US court system, the US Court of Appeals (for the District of Columbia Circuit.) Briefs have been filed by rival sets of lawyers, and an oral argument before an as yet unselected panel of three circuit court judges will take place later this year.

The losing side at the circuit court level could choose to go to the US Supreme Court, and if that occurs, the battle might continue into the 1990 s (The Supreme Court, could, as it often does, refuse to hear the case, thus confirming the lower court’s decision.) It has been a long, compli cated case with the Mormons having few problems in the years 1906 through 1978, but sustaining a steady string of courtroom losses in recent years. In fact, the Mormons have lost at four levels, and, in the Circuit Court, they are fighting the same contest for the fifth time.

It all started quietly back in 1906 when the missionaries of the Church of Jesus Christ of the Latter Day Saints leased 360 acres near Pago Pago from Pualiloa Vaiuli, then Matai (leader) of the Pualiloa family.

The land is known as “Malaeimi” and was used by the Mormons as the site of their

headquarters, school and a plantation.

Over the years the Mormons made a number of moves to hold the land, on which they spent millions in improvements.

When the original Matai died, in 1929, there was a dispute as to who should receive lease pay ments for the land.

In 1931, the widow, Sala taima, was given the right to collect rent, and according to the Mormons the deed to the property, which she subse quently sold to the church. In 1953 the church paid the widow $30,000 for the land.

By 1978 the Fualiloa family decided to try to reclaim the land, started farming it, and the church went to court to remove them as trespassers.

The case went through both the Trial and the Appellate branches of the High Court of American Samoa, with the fam ily winning at both levels. Then the Mormons appealed to the US Secretary of Interior who appoints the High Court judges and who rules the islands for the Government in Washington.

The Secretary refused to re verse the High Court’s decision that the family owned the land.

Next the Mormons sued the Secretary in the US District Court for the District of Col umbia, with Federal Judge Oliver Gasch ruling against the church, and for the American Samoa Government (ASG), which has been handling the case since it came to the main land.

The issues are as complex as the history of litigation. The Mormons make three basic points: • They have occupied the land for decades without con test, and they are, under the US Constitution, being deprived of their property without due pro cess;

• That the District Court ignored an important legal issue, the constitutionality of the ASG law which prevents any one who is not of at least 50 per cent Samoan blood from purchasing what had previously been communal land; and • That the ASG courts are not courts at all, because the judges (unlike those on the mainland) do not have tenure for life, and because they (again unlike other judges) can be overruled by the Secretary of Interior.

The Mormon brief is a skilful ly prepared document which may prevail but it lacks an island flavor; the argument, if not the recitation of facts, reads as if it dealt with a land dispute in, say, New England. The lawyers are Wilfred Kirton, of a prominent Salt Lake City firm, and Washington lawers Marcus G. Faust and Rex E. Lee. (This is the Rex Lee who used to be number three man in the US Justice Department, not the Rex Lee who used to be the AS Governor.) The opposing brief is full of the history and the customs of the islands, references to Fa a Samoa, the Samoa way of thinking and doing, pule, the island term for power or control Over land. The social purpose behind the ASG tradition of not alienating communal land to outsiders is stressed.

The brief was filed by L.

Su’esu’e Lutu, the ASG Attor ney General, and Washington lawyers Marcus Sisk and Arnold Leibowitz. (Sisk spent years in American Samoa and the peripatetic Leibowitz has helped write the constitutions of most of America’s island terri tories. ) The Samoan brief argues that Judge Gasch did exactly what he should have done when he ruled that the Mor mons had raised no valid fede

ral issues, and hence the High Court’s decision should be accepted. In reply to the Mor mon arguments, it says, in effect: • That there are no federal due process issues, that the rulings of the Samoan Courts should be upheld because they did not violate any substantial Constitutional standard; (the is land brief does not dwell on how long the Mormons held the land, or on the purposes for which it was used); • That the racial restrictions of ASG land-tenure law are not significant to the case because the widow had no right to sell the land, to anyone, in the first place; and • That the High Court is, indeed, an appropriate court of law.

There are high stakes riding on the ultimate decision, over and above the ownership of an attractive plot of land and the buildings on it.

If the Mormons manage to get the mainland courts to pay attention to the ethnic land ownership issue the current American Samoa law is in real danger. American courts, in the last forty years, have taken a dim view of granting rights to some ethnic groups and not to others.

Another significant problem will arise if the Mormons prevail on the question of the nature of the islands’ courts. This not only would lead to a re-structur ing of the court system, it might, conceivably, question the other decisions made by the High Court over the years.

Ironically, if the normally conservative Mormon Church wins, radical change will ensue in American Samoa. But if ASG wins, there will be no changes, except in the ownership of the land. From David S. North in Washington.