SUMARIO: A TIME FOR CHANGE IN THE SOUTH PACIFIC?

James R. Thornbury *

Source: 1998 Revista Juridica Universidad de Puerto Rico ; 67 Rev. Jur. U.P.R. 1099


* Adjunct Professor of Law, Secured Transactions, University of Toledo, College of Law, Toledo Ohio.

SUMMARY:
... Halfway around the world from Washington D.C., there is a tropical paradise where an American common law system exists side by side with a traditional tribal culture. ... This discussion will focus on the clash between the traditional law of Samoa, existing before its cessation to the United States at the turn of the twentieth century, and the principles of the U.S. legal system that have been imposed upon the Samoans. ... Samoa's status as an unincorporated territory creates a different result. ... Relying on this deed, the church invested in building a church, a school and a "welfare planation." ... The Church was not denied due process of law because Congress put the court system of American Samoa under the authority of the Executive branch; nor was it denied equal protection since Congress, exercising its authority over the territories, did not lack a rational basis on which to justify differences between the courts of American Samoa and those in the States or the other Territories. ... If the territory were a sovereign, there would be no issue of the Interior Secretary discretionarily overruling the island courts or administration. ...  

TEXT:
[*1099]

I. Introduction

Halfway around the world from Washington D.C., there is a tropical paradise where an American common law system exists side by side with a traditional tribal culture. Though under nearly absolute rule by the United States, the inhabitants are not United States citizens, ¹ are granted only some Constitutional guarantees, ² and live with a hybrid system of law that may be unique in the world today.

This place is American Samoa, a Pacific archipelago some 4,000 miles from the California coast. ³ This discussion will focus on the clash between the traditional law of Samoa, existing before its cessation to the United States at the turn of the twentieth century, and the principles of the U.S. legal system that have been imposed upon the Samoans. Because of this clash, the legal system created in Samoa is not what might be expected as a place under governance of the United States. Constitutional guarantees which U.S. citizens expect are minimal and the government is subject to nearly absolute rule by an executive appointee. A dispute over land has been chosen as the vehicle for analyzing the roles of U.S. and tribal law in Samoa, together with the appropriateness of continuing this system today. After some background material comparing some general principles of the U.S. system and the tribal based Samoan system, the case of Corporation of the Presiding Bishop v. Hodel ⁴ will be explored. In Presiding Bishop, the Mormon Church brought suit against the U.S. Secretary of the Interior to force a review of a Samoan court decision voiding a sale of real property. A Samoan statute which prohibits certain land transfers solely on the basis of race  [*1100]  was at issue. This statute, if it existed within any state in the Union, would be unconstitutional. Yet it is valid in American Samoa. This is because American Samoa occupies a different status in the eyes of American law: that of an unincorporated territory. This raises the question of how much United States law applies to a territory. Presiding Bishop also illustrates the governing system in Samoa, which is subject to nearly absolute rule by the Secretary of the Interior with little oversight. Though U.S. in appearance, the government of Samoa is actually a fiefdom, under the nearly unbridled control of a political appointee. The U.S. places a high value upon constitutional guarantees and separation of powers and professes a policy of selfsufficiency for the Samoans, yet we have allowed this system of government to continue for nearly a century.

II. Background

American Samoa is a group of seven small islands in the South Pacific, about 2,300 miles southwest of Hawaii. ⁵ It is the only United States possession that lies south of the Equator. ⁶ The United States' claims to the islands arise from a series of treaties with Germany and Great Britain and the properties are deemed to be an "unorganized territory." ⁷ Prior to 1900, Samoa was governed by a series of tribal groups centered around family units known as aiga, which are structured in a communal fashion. ⁸ Presiding over the affairs of the aiga are the matia, of which there may be several depending on the size of the aiga, who are selected from within the family. ⁹ Prior to 1900, there was a senior matia who was considered the King of Manu'a. ¹⁰ In addition to being trustees of the aiga and its assets, the matia  [*1101]  are also the keepers of the oral traditions, known as fa'aSamoa, including customs, traditions, mythology, genealogy and law. ¹¹ One of the traditions of the fa'aSamoa concerns title to land. There are three types of land held in Samoa: communal or common area land that is held by the matia as custodian for the aiga; "freehold" lands included in specific grants prior to 1900; and "individually held" land. ¹² There are no written records of any kind indicating land ownership prior to 1900, as there was essentially no "government" that originally owned the land and granted title to private citizens, as was common in Western cultures. ¹³ Individual claims to Samoan land were based on oral traditions of who cleared and occupied the land in past generations. ¹⁴ Because there were no legal descriptions of the property, claims based on oral traditions were very complicated and subject to continuing dispute. ¹⁵ Samoans did not use writing until it was introduced to them by missionaries around 1830. ¹⁶ Thus, oral traditions are a significant part of the Samoan legal system, particularly in property law.

The Samoan territory was ceded to the United States in 1900, and governmental powers were first delegated to the United States Navy. ¹⁷ Not surprisingly, the day-to-day government created was modeled after the tri-partite system in the United States; consisting of executive, legislative and judicial branches overseen by a territorial governor appointed by the Executive Branch. ¹⁸ In the 1950's, the Navy's (then War Department's) responsibility for the islands was shifted to the Department of the Interior by a Presidential Executive Order. ¹⁹ Though American in appearance, with three branches of government, this is illu  [*1102]  sory. The Secretary of the Department of the Interior holds the power of appointment over virtually every member of the government in the territory, including the judiciary. ²⁰ The Secretary appoints a Governor who in turn appoints various subordinate officials. ²¹ Only the legislative branch has any "elected" officials. The legislature is bicameral, with a 20 member "House of Representatives" elected under universal suffrage and an 18 member "Senate" elected "in accordance with Samoan custom". ²² Judicial power is vested in a "High Court" that is ostensibly independent of the legislative and executive branches, but it is subject to the appointment and removal powers of the Secretary of the Interior. ²³ The Secretary may also overturn High Court decisions with this supervisory power. ²⁴ The American Samoa legislature has codified statutes, known as the American Samoa Code, that distributes the administration of local government among district, county and village governing bodies ²⁵ However, the Secretary of the Interior retains nearly all legislative, executive and judicial power over this territory. He can appoint and remove officials at will, overturn decisions of the Samoan courts, and amend nearly the entire governing system. ²⁶ The only governing matter which Congress has withdrawn from the Secretary is the ability to amend the Samoan Constitution, which limitation occurred only in 1983. ²⁷

The United States Constitution does not overlay the Samoan Constitution as it would one of the state constitutions. The U.S. Constitution is generally seen as a floor of basic laws and states  [*1103]  are free to create their own constitutions with greater protections, particularly in the area of civil rights. ²⁸ However, any attempt to reduce the federally guaranteed rights is trumped by the Supremacy clause of the U.S. Constitution. ²⁹ Samoa's status as an unincorporated territory creates a different result. Only "fundamental rights" under the U.S. Constitution apply in the case of an unincorporated territory. ³⁰ Thus, rights that U.S. citizens nearly take for granted- such as the right to a trial by jury under the Sixth Amendment- are non-existent in Samoa. ³¹

Despite the structural similarities to the United States system, there are key elements of the Samoan system that would seem to be irreconcilable with a number of American legal concepts. Application of principles such as due process and equal protection provided under the United States Constitution lead to a vastly different result in American Samoa. The differences derive from the cessation of these islands to the United States. The tribal chiefs required that the Samoan way of life be preserved as much as possible. ³²

This requirement led to a Samoan constitutional provision that requires the current governmental scheme to recognize that there are differences between Samoan culture and the United States system:

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 interest.  [*1104]  Such legislation as may be necessary may be enacted to protect the lands, customs, cultures and traditional Samoan family organization of persons of Samoan ancestry. ³³

One of the outgrowths of this restriction was to prevent the alienation of native lands to ". . . any person who has less than onehalf native blood . . . . ³⁴ The theory was to prevent American Samoa from becoming "another Hawaii where very few native [persons] claim title to . . . land," resulting destruction of the Polynesian culture due to commercialization and exploitation by foreigners. ³⁵ There has been some easing of this statutory restriction over time, allowing freehold and individually held land to be sold to foreigners. The policy of restricting alienation of "native" lands on a racial basis, particularly those held by the matai as communal property, is at the heart of the Presiding Bishop case.

On the surface, it would appear that the restriction based on race would not survive a constitutional challenge on the basis of equal protection under U.S. law. To restrict the acquisition of real property solely on the basis of race has long been recognized as a violation of the United States Constitution. ³⁶ Racial classification is the ultimate "suspect" class and any law which differentiates based on race is "subject to the most exacting scrutiny", which in essence means that such statutes fail for lack of a "compelling government interest." ³⁷ However, the United States courts have taken a different approach in cases involving territories. Thus, there is an exception to equal protection for U.S. territories where the law is "affecting the possession, use and transfer of property, and designed to secure good order and peace in the community." ³⁸ The basis for this approach arises from Downes v. Bidwell ³⁹ where the court said:

It is quite obvious that in the annexation of outlying and distant possession grave questions will arise from differ  [*1105]  ences of race, habits, laws and customs of the people, and from differences of soil, climate and production, which may require action on the part of Congress that would be quite unnecessary in the annexation of contiguous territory . . . .



Thus, the U.S. Supreme Court created a different standard for outlying territories with respect to constitutional guarantees.

The wisdom of continuing this exception creates one of the central issues for discussion in the Presiding Bishop case and the recommendations which follow.

III. Discussion

In the case of Corporation of the Presiding Bishop v. Hodel ⁴⁰ , the plaintiff is the official body of the Mormon Church. This case arose in District Court for the District of Columbia after the church was unsuccessful in the Samoan court system. The Samoan system does not provide for any direct appeal to the U.S. Court system in the traditional fashion. ⁴¹ Because the Secretary of the Interior exercises plenary power over American Samoa, the appointee has the sole authority to overturn a decision of the Samoan High Court. ⁴² Only in the event of a federal constitutional question or a federal statute is any aggrieved party entitled to any judicial review of the Secretary's decisions. ⁴³

The underlying event in Presiding Bishop was a declaration by the Samoan Court that the church was not entitled to retain land it had received under a deed in 1953 because it was communal land and could not be sold to non-native persons or entities. ⁴⁴ The major question presented in Presiding Bishop is whether the racially restrictive statute is irreconcilably in conflict with the fundamental right of equal protection under law. ⁴⁵ [*1106]

In 1903, the Mormon Church leased a 360 acre portion of land under the control of the Puailoa matia. ⁴⁶ The widow of the matai succeeded her spouse and continued to collect the lease payments. ⁴⁷ When the Samoan anti-alienation statute was changed to allow sales of noncommunal land to foreigners, the widow executed a deed in 1953 and sold 300 acres of land to the church for $ 30,000. ⁴⁸ Relying on this deed, the church invested in building a church, a school and a "welfare planation." ⁴⁹ As a result of the on-going dispute over succession in the Puailoa family, the matia in power in 1978 petitioned the Samoan courts to overturn the succession decision, which would make the 1953 deed void ab initio. The court refused to set aside the deed, so the tribe simply entered the land and began farming. In response, the church brought a trespass action. ⁵⁰

Instead of removing the trespassers, the Samoan High Court held that the Church did not own the land because the deed it had received was invalid. Because the land did not appear in the "freehold" land records of Samoa, the Court reasoned it was presumed not to be held individually. Further, the court had searched a series of previous cases concerning Puailoa land, which showed several references to the land in question being communally held, leading it to conclude the land could not be sold to a non-native person or entity. ⁵¹ The court rejected an adverse possession claim on the basis that the thirty year time had not yet run for invoking this principle. ⁵²

The Church appealed to the Secretary, asking that the appointee exercise plenary power over the Samoan courts and reverse the finding. The Secretary declined to intervene on the ba  [*1107]  sis that a reversal "would undermine a policy fostering greater self government and self sufficiency in American Samoa." ⁵³ The Secretary explained:

As Secretary, I have held no hearing and read no briefs. To have done so, or do so now, with a view toward overruling the High Court's decision, in what I perceive to be a highly complicated case, puts the Secretary in the position of an appellate court, superimposed over the duly constituted judiciary. Moreover I am aware of no evidence that this case jeopardizes United States policy. Nor, does this case appear to present such a clear abuse of judicial discretion that intervention is dictated. For these reasons, I choose not to intervene. ⁵⁴

The commentary of the Secretary illustrates another major issue in the American Samoa relationship. The U.S. has imposed a common law system upon the nationals of Samoa, yet does not provide constitutional guarantees nor a separation of powers which would be found within the United States. The parties are bound by an appointee who, on one hand does not wish to be an appellate court, but who would reverse the Samoan High Court when a case presented ". . . a clear abuse of judicial discretion." ⁵⁵ This creates a potential for substantial abuse of power. ⁵⁶ Parties to international situations must be aware of the various systems that each respective independent sovereign uses to operate. Presumably, parties will accommodate their transactions to the particular system. The problem with American Samoa is that it is not the United States system. Nearly the entire governing system, including the decisions of the courts, is subject to the discretion of an executive appointee. Thus, it appears that the law of American Samoa is subject almost completely to the  [*1108]  whim of a political appointee likely to change every four to eight years. This is not a tenable situation for either culture. The Samoan customs are still subject to overrule at any time and the common law system of the United States does not apply in full. This creates a limbo where neither the interests of the Samoans or the United States are well served.

Presiding Bishop also makes clear that a different standard is to be used when dealing with constitutional issues. The only way this case found its way to the U.S. court system was upon an allegation of constitutional error. ⁵⁷ The plaintiff claimed that the government's action, through the Executive branch, constituted a taking of property prohibited by the Fifth Amendment, as well as an equal protection violation based on the racially restrictive land sale statute. ⁵⁸ Though United States courts generally adhere to a policy of strict necessity in disposing of constitutional issues, the court here actually manufactures a result to avoid the fundamental question. ⁵⁹ The U.S. Court of Appeals, in affirming the District Court, said:

The Church was not denied due process of law because Congress put the court system of American Samoa under the authority of the Executive branch; nor was it denied equal protection since Congress, exercising its authority over the territories, did not lack a rational basis on which to justify differences between the courts of American Samoa and those in the States or the other Territories. ⁶⁰



Quite frankly, this commentary is difficult to reconcile with the current state of United States jurisprudence, where racial based classifications are almost always subject to strict scrutiny. The United States Supreme Court has applied "fundamental" rights to all U.S. territories, including those classified as "unorganized". The lower courts, however, have found a method to allow such a seemingly fundamental right as equal protection to escape meaningful review. ⁶¹ By applying the "Territorial clause" of the U.S. Constitution, the rights simply disappear. What this  [*1109]  actually creates is a case where United States law applies only "sometimes", creating unequal approaches to similar issues.

The same sort of inequities are present in other contexts, including the right to trial by jury. This was the central issue in the case of King v Morton. ⁶² Jake King was a U.S. Citizen living in Samoa and was charged with failing to file tax returns. He would be entitled to a trial by jury had this been an Article III federal court. ⁶³ But because American Samoa is an "unincorporated" territory, the Constitution does not automatically "follow the flag." ⁶⁴ Thus, no jury trial is provided in any such territory, even for a U.S. citizen.

The basis for these decisions ostensibly lies in Article IV, <section> 3 of the United States Constitution, which allows Congress to "dispose of and make all needful rules and regulation respecting territory or other property belonging to the United States." ⁶⁵

This concept may have been valid at the time when the United States was expanding and there was a need for Congressional control to effect an orderly transfer of government. In fact, if a territory is "incorporated", meaning it is an area "intended for statehood at the time of acquisition.", the entire Constitution applies. ⁶⁶ None of the historical data or litigated cases even remotely suggests that American Samoa was ever intended for statehood. Thus, the technical application of Art. IV, <section> 3 to these cases is an inappropriate method of dealing with the issues and perpetuates the climate of unequal application of law. The method may have been sound in the expansionary period when territories eventually became states, thus applying the entire constitution.

The concept of procedural safeguards in the law is one of the foundations of the U.S. legal system. It is part "of the very essence of a scheme of ordered liberty". ⁶⁷ If this is an underpin  [*1110]  ning of the United States system, why do such rights not apply in its territories?

The United States and American Samoa relationship has created a legal system where there are few constitutional guarantees, which can create inconsistent results. The Samoan courts may apply traditional tribal principles or the hybrid law arising from its relationship with the U.S., such as the anti-alienation statute. Thus, trying to use the rules developed in the U.S. system on Samoan legal problems creates substantially different results. In today's world, we no longer need to treat territories as such; the protectionist requirements of the turn of the twentieth century are not as relevant today. To create, in essence, various classes of people within an area claimed by the U.S. is no longer appropriate. True, there may be a need to preserve Samoan culture. There may also be a need to have a relationship for defensive purposes. ⁶⁸ However, these needs should not be met in a fashion which suggests a constitutional government on the U.S. model but which in reality is just a sham.

The inequity in the American Samoan legal system can be cured either by adopting the entire protections of the U.S. system to the islands or by freeing Samoa from the hybrid system and allowing complete self-government. ⁶⁹ If the territory were a sovereign, there would be no issue of the Interior Secretary discretionarily overruling the island courts or administration. Nor would there be any question about the application of the U.S. Constitution. The Samoans would be free to choose their own methods. If they chose to discriminate on the basis of race on land sales or any other issue, this is for their self determination. There is no need to retain the partial-hybrid system that exists today.

IV. Conclusion

The current system in American Samoa is a throwback to the colonial period when a "superpower" of sorts may have been nec  [*1111]  essary to "protect" the natives. Whether applying the entire U.S. system would work in Samoa remains to be seen. However, it is clear from Presiding Bishop and the other source cases that the system cannot fairly reconcile the tribal customs as well as traditional U.S. notions of the law. Today's society does not require Samoa to have the "protection" of the United States as in 1900. There is no longer a need for the Secretary of the Interior to hold the unbridled power over the entire government of the islands.

Judge Tamm, in his dissent in King v. Morton, examined the Report from the Future Political Status Commission to the Samoan legislature. ⁷⁰ The Report indicated that Samoans are better educated (due to compulsory education) and "a new degree of sophistication is obvious." ⁷¹ Given the tremendous increases in communications, the sophistication level of the Samoans has probably geometrically increased since the Report was issued in 1970. The 1970 Report concluded that "Samoan political opinion has shifted from passive acceptance of an appointed government to a strong desire for self-government within the American framework." ⁷²

It is time for the United States to begin to unwind the current system and allow the Samoans to develop their own legal system, giving due regard to whatever traditions they seek to preserve and to utilize part or all of any legal system now existing in the world.

FOOTNOTES:
n1 8 U.S.C. <section> 1408 (1994).

n2 King v. Morton, 520 F.2d 1140, 1146 (D.C. Cir. 1975).

n3 Id. at 1158 (Tamm, J. dissenting).

n4 637 F. Supp. 1398 (D.D.C. 1986) affirmed 830 F.2d 374 (D.C. Cir. 1987).

n5 Note, The Application of the American Constitution to American Samoa, 9 J. Int'l. Law & Econ. 325 (1974).

n6 Id.

n7 U.S. v. Standard Oil Co., 404 U.S. 558 (1972). In this case, the Supreme Court held that the Sherman Act, regulating anti-trust violations, did not apply to American Samoa, presumably allowing Standard Oil to operate a monopoly in the distribution and sale of petroleum products on the islands even though such activities would be prohibited anywhere in the United States. Id.

n8 Note, supra note 5, at 329-31 (1974).

n9 Id.

n10 Id. This "title of nobility" was officially abolished upon the ceding of Samoa to the United States and such titles have since been suppressed by the various territorial governors of Samoa. Id.

n11 Id.

n12 Corp. of Presiding Bishop v. Hodel, 637 F. Supp. 1398, 1401 (D.D.C. 1986).

n13 Note, Applicability of Western Judicial Concepts to Polynesian Land Disputes: High Court Use of The Adverse Possession Principle in American Samoa, 9 Pacific L.J. 75 (1981).

n14 Id.

n15 Id. Some of the claims to land are based on oral traditions two to three hundred years old. Id.

n16 Id. The Mormons were some of the original missionaries to reach Samoa.

n17 Id.

n18 King v. Morton, 520 F.2d 1140, 1158 (Tamm, J. dissenting).

n19 Tien Lop Lee v. U.S., 549 F.2d 154 (9th Cir. 1977). Congress had vested governing authority over the lands with the President in 1929. See 48 U.S.C. <section> 1661(d) (1994); Executive Order No. 10264, June 29, 1951, effective July 1, 1951.

n20 King v. Morton, 520 F.2d 1140, 1159 (D.C. Cir. 1975) (Tamm, J. dissenting). The acceptance of American Samoa, the form of government and the Congressional authority for this system is codified in 48 U.S.C. <sections> 1661-1670 (1994).

n21 Id. The key official subordinate to the Governor is the Secretary for Samoan Affairs. Whoever holds this position typically appoints local officials, such as a district governor, based on a recommendation from the district council. However there is no requirement that the Secretary for Samoan Affairs act in this capacity because the Secretary of the Interior holds the final plenary power in the territory. Id.

n22 Id. See also Am. Samoa Const. art. II <sections> 2, 4.

n23 Am. Samoa Const. art III <sections> 1, 2, 3.

n24 Id.

n25 Am. Samoa Const. art. V <section> 10; Am. Samoa Code <sections> 1 et seq.

n26 Id.

n27 48 U.S.C. <section> 1662(a) (1994). This statute allows modifications of the American Samoa Constitution in effect on January 1, 1983 only by act of Congress.

n28 Michigan v. Mosley, 423 U.S. 96 (1975). The fundamental rights in the U.S. Constitution are deemed to be "selectively incorporated" into state actions through the Fourteenth Amendment. However, in essence they provide a basic level of guarantees which cannot be denied by state action. Mapp v. Ohio, 367 U.S. 643 (1961); Duncan v. Louisiana, 391 U.S. 145 (1961).

n29 U.S. Const. art. VI <section> 2. "The Constitution . . . shall be the supreme Law of the Land."

n30 Balzac v. Porto Rico, 258 U.S. 298 (1922). The Bill of Rights, except the Second, Third and Seventh Amendments, the right to grand jury indictment in the Fifth Amendment and the Eighth Amendment's guarantee against excessive bail are considered express fundamental personal rights. Implicit fundamental rights include interstate travel, issues of marriage and family, voting and access to justice. Jerome A. Barron, Constitutional Law (2nd ed. West 1991).

n31 King v. Morton, 520 F.2d 1140 (D.C. Cir. 1975).

n32 Note, supra note 5.

n33 Id. (citing Am. Samoa Const. art. I, <section> 3, Am.Sam. Code vol.1).

n34 Id. (citing Am. Samoa Code <section>204 (b)).

n35 Id.

n36 Id. (citing Buchanan v. Warley, 245 U.S. 60 (1917)).

n37 Palmer v. Sidoti, 466 U.S. 429, 432 (1984).

n38 Id.

n39 182 U.S. 244 (1901).

n40 637 F. Supp. 1398 (D.D.C. 1986).

n41 King v. Morton, 520 F.2d 1140 (D.C. Cir. 1970).

n42 Id.

n43 Id. The provisions for relief under the Administrative Procedures Act do not apply to the Secretary's decisions regarding the territories. See 5 U.S.C. <section> <section> 701-706.

n44 Corp. of Presiding Bishop v. Hodel, 637 F. Supp. 1398 (D.D.C.).

n45 Id. The Church also argued that the lack of Article III status of territorial courts made the decision an Executive branch "taking" under the Fifth Amendment. The court disposed of this by referring to 28 U.S.C. et seq. which allows Congress to establish the court systems.


n46 Presiding Bishop, 637 F. Supp., at 1402.

n47 Id. The succession issue was litigated by other members of the aiga in the Samoan courts. This litigation, over a 40 year period, spawned the deed nullification action forming the basis of this case.

n48 Id. at 1402.

n49 Id. at 1402.

n50 Id. at 1402-03.

n51 Id. at 1403.

n52 Id. at 1403. Adverse possession significantly contradicts the concept of the oral traditions as well as the anti-alienation statute. However, it was almost immediately adopted as a legal principle in the islands upon ceding. See Note, Applicability of Western Judicial Concepts to Polynesian Land Disputes: High Court Use of the Adverse Possession Principle in American Samoa, 9 Pacific Samoa L.J. 75 (1981).

n53 Corp. of Presiding Bishop v. Hodel, 637 F. Supp. 1398, 1404 (D.D.C. Cir. 1986). The author is not contending that the Samoan High Court erred on the law in its ruling. Rather, this case illustrates that fundamental U.S. rights are not protected by the current government structure and traditional Samoan values are not guaranteed because the ultimate legal authority is vested in a political appointee.

n54 Corp. of Presiding Bishop v. Hodel, 830 F.2d 374 (D.C. Cir. 1987).

n55 Id. at 379.

n56 The author is not suggesting that this abuse of power has indeed taken place. The issue is the opportunity which the Secretary has to exercise this power with virtually no oversight.

n57 Corp. of Presiding Bishop v. Hodel, 637 F. Supp. 1398, 1405 (D.D.C. 1986).

n58 Id.

n59 Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549 (1947).

n60 Corp. of Presiding Bishop v. Hodel, 830 F.2d 374, 387 (D.C. Cir. 1987).

n61 Balzac v. Porto Rico, 258 U.S. 298 (1922).

n62 520 F.2d 1140 (D.C. Cir. 1975).

n63 Id.

n64 Note, supra note 5.

n65 Wabol v. Villacrusis, 958 F.2d 1450 (9th Cir. 1990).

n66 Commonwealth of Northern Mariana Islands v. Atalig, 723 F.2d 682 (9th Cir.) cert. denied 467 U.S. 1244 (1984). This case also held that there is no right to trial by jury in the Mariana Islands, a "trust" territory administered by the United States pursuant to a United Nations "trusteeship agreement". Id.

n67 Palko v. Connecticut, 302 U.S. 319 (1937).

n68 The author suggests that this may not be of such importance given the advanced technology capacities of modern weapons systems.

n69 During a transition period, the United States could protect its strategic interests by retaining certain portions of the islands under a lease arrangement that eventually transfers complete sovereignty to the Samoans in the future. This was done upon granting independence to the Philippines concerning two key military bases at Subic Bay.

n70 King v. Morton, 520 F.2d 1140 (D.C. Cir. 1975).

n71 Id. at 1160.

n72 Id. at 1160.