American Samoa Deeds Of Cession Provisions Ignored By U.S., Court To Hear

Governor's office to argue against reduction in size of Large Vessel Prohibited Area

By Fili Sagapolutele

PAGO PAGO, American Samoa (The Samoa News, Dec. 8, 2016) – American Samoa’s two separate Deeds of Cession with the United States are the focus of a federal court hearing next month in the Territory of American Samoa’s lawsuit against several federal officials over the reduction of the Large Vessel Prohibited Area in waters of the territory.

American Samoa, through the Governor’s Office, had argued that when the US National Marine Fishery Service (NMFS) agreed to a recommendation by the Western Pacific Fishery Management Council, and then implemented in February this year the final rule, reducing the LVPA from 50 to 12 miles, NMFS failed to take into account the US promise to protect local resources, as cited in the Tutuila and Aunu’u Deed of Cession in 1900 and the Manu’a Islands Deed of Cession in 1904.

Based on court filings, most of ASG arguments against reduction of the LVPA centers around the two Deeds of Cession. In objecting to plaintiffs motion for summary judgement for the plaintiffs, the federal defendants also filed on Oct. 24 a “judicial notice”, which brings the Honolulu federal court’s attention to the Deeds of Cession, based on the Deeds information posted on the American Samoa Bar Association website (www.asbar.com).

Defendants point out that the plaintiff’s complaint includes exhibits that purport to be copies of the Deeds but they are not authenticated by a declaration. According to the defendants, plaintiff’s interpretation that the Deeds are “other applicable law” under the Magnuson Act, “are without merit” for two reasons.

First, the Deeds’ broad language does not apply to fishing or any territory interest in offshore marine resources subject to exclusive federal management, and therefore the Deeds do not impose requirements on NMFS’s development of the LVPA rules and do not constitute “other applicable law”, according to the defendants.

Second, to the extent that the Deeds require NMFS to respect, protect, or recognize American Samoan traditions, the defendants say NMFS’s administrative record shows that NMFS carefully considered all relevant information and articulated a satisfactory and rational explanation for the 2016 LVPA rule and thus clearly satisfied any requirement allegedly imposed by the Deeds.

The federal court has set for Jan. 9, 2017 a hearing on the “judicial notice” and plaintiffs on Monday informed the court, through new filings, that it has no objection to the defendants’ judicial notice. Additionally, the Deeds are published as part of the American Samoa Code Annotated, which is local law.

According to the plaintiffs, the property and surrounding waters in the Deeds, by the chiefs of Tutuila, Aunu’u and Manu’a, measure more than 28,000 square miles. In return, for the offering by the Chiefs, the US government “promised to ‘respect and protect the individual rights of all people dwelling in Tutuila to their lands and other property in said District’,” under the Tutuila/Aunu’u Deed.

Similarly, the US promised “the right of Chiefs in each village and of all people concerning their property according to their customs shall be recognized” under the Manu’a Deed.

In 1929, U.S. Congress officially accepted, ratified, and confirmed the Deeds, “including their promise to protect the property rights in the ceded area of the people of Tutuila, Aunuʻu, and the Manuʻa Islands.”

“In doing so, the United States acknowledged and agreed that the more than 28,000 square mile area described in the Deeds of Cession (or Ceded Area) belonged to the people of Tutuila, Aunu’u, and the Manu’a Islands, and that the area was ceded to the United States on the condition that the United States protect and respect the rights of the natives of the Ceded Area.”

The plaintiff argued that the people of Tutuila, Aunu’u, Ofu, Olosega, Ta’u and Rose Island attached special significance to both Deeds at the time of signing and continue to regard both deeds as sacred documents today.

“Among the customs protected by these Deeds are the fishing practices of American Samoans,” the plaintiff argued, and noted that American Samoans have “a long history of dependence on pelagic fishery resources.”

 The people of American Samoa have historically fished the Pacific Ocean using alia and canoes, with some going out as far as 30 nautical miles to track schools of tuna.

The plaintiff reiterated, what was initially cited in the lawsuit, that the NMFS rule making process in reducing the LVPA, didn’t take into consideration the Deeds and “lacked any consideration or respect for the effect the new rule would have on American Samoan cultural practices.”

Based on the tone of the plaintiff’s motion, and lawsuit, American Samoa is prepared for battle in the courtroom when it comes to the Deeds of Cession.

Plaintiff is represented by the Honolulu-based law firm of Imanaka Asato, lead attorneys in the case are Steven S.K. Chung and Michael L. Iosua, who previously served as assistant attorney general for the local Attorney General’s Office.

The Samoa News
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