5ASR3d270

Series: 5ASR3d | Year: () | 5ASR3d270
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TUILEFANO M. VAELA`A, Claimant,

 

v.

 

VALENTINO TAUFA`ASAU, UTAIFEAU T. MAUGA ASUEGA, FANENE F.

KAVA, SEALI`IUTU F. MAUGA,

and MAILO ATONIO, Counter-claimants.

 

[In re Matai Title

“MAUGA” of the Village of Pago Pago]

 

High Court of American Samoa

Land and Titles Division

 

MT No. 12-98

 

December 14, 2001


 

 

[1] In matai title dispute cases, Sotoa

rule (candidate’s blood

relationship determined by reference to relationship to original titleholder,

not by descent to nearest past titleholder) is not of general application,

particularly when family genealogical understanding is contentious and when

family history suggests contrary tradition and understanding of entitlement.

 

[2] Using

traditional formula, hereditary entitlement is determined by percentage of

candidate’s blood relationship to former titleholder, as opposed to original

titleholder. 

 

[3] Under

A.S.C.A. § 1.0409(c)(3), evaluation and assessment of candidates is necessarily

comparative exercise, varying in emphasis from case to case.  Court is statutorily directed to examine

personal traits that, in part, appeal to personal observation.  However, leadership ability, honesty,

education, public service, involvement in church and village affairs, and

previous experience as matai are

factors which aid in meeting this criterion.

 

Before KRUSE,

Chief Justice, LOGOAI, Chief Associate Judge, ATIULAGI, Associate Judge and

TAUANU`U, Temporary Associate Judge.

 

Counsel:          For

Tuilefano M. Vae1a`a, Afoa L.S. Lutu & Arthur Ripley, Jr.

 For Valentino M. Taufa`asau, Pro Se

 For Utaifeau T.M. Asuega, Asaua Fuimaono

 For Seali`iutu F. Mauqa, Aitofele T. Sunia

 For Mailo Atonio, Faiivae A.G. Ga1ea`i

OPINION

AND ORDER

 

Introduction

 

This longstanding matter had its

beginnings in May 13, 1998, when Tuilefano M. Vaela`a (Tuilefano) filed his

claim to succession to the vacant matai

title Mauga of Pago Pago.  The

Territorial Registrar posted the claim publicly for the requisite 60-day period

in accordance with the requirements of A.S.C.A. § 1.0406.  The claim in turn drew the filing of

succession counterclaims from Valentino Mauga Taufa`asau (“Taufa`asau”) on July 10,

1998; from Utaifeau Tasi Mauga Asuega (“Utaifeau”) and Fanene Fetaiaiga Kava

(“Fanene”) on July 13, 1998; and from Lavea Seali`iutu F. Mauga (“Lavea”) and

Mailo Atonio (“Mailo”) on July 14, 1998.

 

The Territorial Registrar then referred the matter to the Secretary of

Samoan Affairs who duly convened the parties for settlement conferences pursuant

to A.S.C.A. § 43.0302.  Without a family

settlement, the Secretary of Samoan Affairs certified an irreconcilable dispute

to the Land and Titles Divisions under A.S.C.A. §43.0302(a).

 

Trial commenced herein on February 28, 2000,[1] with the evidentiary

presentation of the parties concluded on March 3, 2000.  However, on March 6, 2000, the date and time

anticipated for rebuttal evidence and final arguments, the parties jointly

requested the Court to postpone the proceedings to allow them one more

opportunity to attempt a family resolution. 

Given the relative importance of the matai

title Mauga,[2]

the motion was granted, and the proceedings adjourned sine die, with the high expectation of a fa`a Samoa conclusion.[3]

 

The effort was to no avail.  The communal will to move forward and select

a new Mauga titleholder was, it seems, nonexistent or, at best, feeble from the

outset.  After some six months of family

inertia, one of the parties felt compelled to file a motion to reinstate

judicial proceedings citing the family’s unwillingness to at least call a

meeting as previously represented to the Court. 

The motion was denied and the parties were advised that the Court would

not reconvene unless the family met, as promised, to meaningfully reconsider a

successor matai. Following a further

four months of family inaction, one family member then took it upon himself to

publicly advertise the calling of a family meeting.  This action finally prompted a family

gathering at Gagamoe[4]

on February 3, 2001.[5]  As above noted, the extrajudicial exercise

proved futile.

 

Discussion

 

The Court, having heard the evidence

and considered the parties’ post-trial written arguments, makes the following

findings pursuant to the criteria set out in A.S.C.A. § 1.0409:

 

1.  Hereditary Right—A.S.C.A. §

1.0409(c)(1)

 

[1] In the

vast majority of matai title disputes

before the Court, a candidate’s hereditary right has been calculated by tracing

his lineage to his nearest ancestor holding the title.  See

In re Matai Title Leiato, 3

AS.R.2d 133, 134 (App. Div. 1986).  This

formula was almost universally applied until 1984 when the Court in In re

Matai Title Sotoa, 2 A.S.R.2d 15

(Lands & Titles Div. 1984), suggested an alternative method of calculation

as being more desirable.  Under the rule

in Sotoa, a candidate’s blood relationship is to be determined by

reference to his relationship to the original titleholder, and not by descent

to the nearest past titleholder.[6]  The Court’s reasoning was that “every new

titleholder does not start a new line of heredity.”  Id. at l5.[7]

 

The Sotoa rule, however, is

not of general application, particularly where family genealogical

understanding is contentious,  In re Matai

Title Lolo, 25

A.S.R.2d 175, 176 (Land & Titles Div. 1994); In re Matai Title Tuaolo, 28 A.S.R.2d 137, 140 (Land

& Titles Div. 1997), and where family history suggests a contrary tradition

and understanding of entitlement.  In

re Matai Title Tauaifaiva, 5

A.S.R.2d 13, 14 (Land & Titles Div. 1987); see also In re Matai

Title La`apui, 4

A.S.R.2d 7, 10 (App. Div. 1987) (Murphy, J., concurring) (“Whether a family

traces hereditary rights directly to the original title holder or to the last

living holder of the title is . . . a matter of custom and tradition.”).

 

[2] With the

matter at bar, we note that in past Mauga succession disputes before the Court,

hereditary entitlement was determined by using the traditional formula, namely,

percentage of a candidate’s blood relationship to a former titleholder, as

opposed to the original titleholder.  See Asuega v. Manuma, 4 A.S.R. 616, 624 (Trial

Div. 1965); Sialega v. Sal, MT No. 04-82 (Land & Titles Div. 1983).  Secondly, contemporary Mauga family history

suggests two family branches separate and distinct to the lineage established

by the original titleholder Mauga Mulivai. 

See Asuega, 4 A.S.R. at 625.  Further, it is clear on

the evidence that this family development evolved prior to the establishment of

the government and the enactment of A.S.C.A. § 1.0409(c), which restricts

eligibility only to those candidates with blood ties.  As this Court previously noted in In re

Matai Title “Mulitauaopele”, 16

A.S.R.2d 63, 82-83 (Land & Trial Div. 1990), the legislative adoption of

the “best hereditary criterion of § 1.0409(c) did not empower the Court to

disenfranchise a family line who obtained the title hundreds of years prior to

the enactment of the [A.S.C.A. § 1.0409(c)], even if the title was not acquired

through blood.”

 

Using then the familiar rule of

heredity, we find that Taufa`asau is the son of Mauga Iulio Taufa`asau, and is

therefore 1/2; Lavea is the grandson of Mauga Palepoi and is therefore 1/4;

Tuilefano is the great-grandson of Mauga Lei and is therefore 1/8; Utaifeau is

also descended from Mauga Lei, who is his second great-grandfather, and is,

therefore, 1/16.

 

Mailo’s blood claim of 1/16, given by

tracing his relationship to the original titleholder Mauga Mulivai, is

problematic.  While there was little

dispute from the other parties as to Mailo’s entitlement, and while the

evidence showed that Mailo family members have participated in past affairs of

the Mauga family, we find that while Mailo is entitled, his claim, however, to

1/16 entitlement is unsupported.  His

claim of heredity makes him the second great-grandson of the original

titleholder. This is implausible when viewed against the intervening

generations attested to by genealogy supplied by the other parties.  Moreover, Mauga family history, as alluded to

by Mailo, pegs the original titleholder Mauga Mulivai to a time frame around

the conclusion of the Tongan wars, circa A.D. 1600.[8]  (See

Mailo’s Closing Arguments, at 7.)  There

are clearly generational gaps in the family tree supplied us.  Moreover, Mailo’s pedigree also lists an

intervening titleholder, Mauga Sivauea Sagaiga, a view which is singularly held

and conspicuously at variance with the genealogy submitted by the other

candidates.  While widely varying

versions of family history are not uncommon in matai title disputes, especially when dealing with oral tradition

that approaches the realm of legend, the discrepancy in this instance is

nonetheless noteworthy.

 

We

conclude on this criteria that Taufa`asau prevails over Lavea, who prevails over Tuilefano, who prevails over Utaifeau, who

prevails over Mailo.

 

2.  Clan Support—A.S.C.A. § 1.0409(c)(2)

 

On this issue, the parties

are in agreement on the number of clans; there are three. The evidence further

bears out another important point of consensus; that is, the Mauga clans, as

they are known today, are not defined in terms of the

lineage(s) started by children of the original titleholder. Although there is

some divergence in view as to labels assigned to identify each clan, the

evidence clearly shows common awareness of three distinct family branches

labeled in terms of geographic distribution. Conveniently, reference was freely

made to one family branch identified as being those pertaining to Gagaxnoe,

while another as being those family

members pertaining to Siufaga, and yet another as being those family

members pertaining to Maiva. Each of these locations also contains a

family guest-house site.

 

The Gagamoe side gave

rise to titleholders from the lineage established from Mauga Mulivai, the

reputed original titleholder; the Siufaga side identifies those from the

Mauga Pulumatala line, who are said to have obtained the title as a reward for

past heroic service; while the Maiva side, identifies those from the

Mauga Manuma line which came into being through

adoption.  See generally Asuega v. Manuma,

4 A.S.R. 616.

 

While there were many family

meetings’ called to select a matai, none of these meetings produced a

majority of clan support for any one candidate. 

If there was anything to be seen from the evidence on the issue of clan

support, it is that family meetings were not exactly utilized to select a

successor matai.  With each unyielding stance taken, the goal

at these family meetings simply appeared to be ensuring against a family

consensus on any one candidate.  Indeed,

some candidates did not even bother to attend any pre-court family meetings,

while others attended only sporadically. 

Moreover, the parties’ exercise in continuing judicial proceedings in

this matter proved to be nothing more than unproductive posturing as family

meetings were not even called until there was prodding from the Court.[9]

We

find that no candidate garnered the support of the majority of clans of the

Mauga family.

 

3. 

Forcefulness, Character and

Personality, and Knowledge of Samoan Customs — A.S.C.A. § 1.0409(c)(3)

 

[3] Under this criterion, evaluation and assessment of

the candidates is necessarily a comparative exercise, varying in emphasis from

case to case.  The task is not always

easy especially when presented with a slate of very capable people, while at

the same time the Court is statutorily directed to examine personal traits

that, in part, appeal to personal observation. 

See Reid v. Tafalele, 4 A.S.R. 458, 463-64 (Trial

Div. 1964); Fagau v. Tulei, 4

A.S.R. 490, 493 (Trial Div. 1964); Asuega v. Manuma, 4 A.S.R. at 629 (The Court’s

consideration includes “personal demeanor, presence of mind, the clarity, speed

and correctness with which answers were given, candidness, the ability to stand

up to rigorous cross-examination, the education, the self-confidence, and other

qualities which are reflected from the speech and behavior of the candidates,

matters which can be assessed only from the personal observation of each

individual candidate . . . .”). However, “[l]eadership ability, honesty,

education, public service, involvement in church and village affairs, and

previous experience as a matai are some of the factors which aid in meeting

this criterion.”  In re Matai Title

Leaeno, 25 A.S.R.2d

4, 8 (Land & Titles Div. 1994).

 

To

these ends, the Court here has not only had the benefit of firsthand

observation of each of the candidates as they testified, but of reviewing each

personal history as recounted both on the stand and in final written arguments,

in some cases not without a sprinkling of self-aggrandizement.  Each candidate testified as to his particular

contribution and service to church, family, and village, as well as to

educational and vocational background. 

We have also seen certain shortcomings as developed on cross-examination

and from personal observation.

 

Claimant Tuilefano pointed to, among

other things, his early career with the United States Marine Corp, together

with various commendations he received, including a citation for meritorious

action during the Vietnam war; his succession to, and service as, the ranking

orator Tuilefano of Malaeloa; his three terms as Aitulagi County’s Senator in

the Legislative Branch; his various government board memberships; and his

appointment to the political post of Commissioner of Public Safety.

Additionally, Tuilefano lists business enterprises with which he is involved.

 

Counter-claimant Taufa`asau, who

appearing pro se acquitted himself admirably in his own representation, appraised

the Court of his 32 years of “outstanding and creditable” service to the United

States Government, National Weather Service, attaining the “Gold Medal” award,

and his education towards attaining his career goals. He now enjoys a

well-earned retirement.  He argues that

while certain of the other candidates can similarly lay claims to having held

good government positions with the territorial government, he contends that

their positions were more an incident of leading matai status rather than

indices of personal merit.

 

Utaifeau urges an assessment

of his character and personal qualities against his background of a stable

family life, successful family business enterprises, together with his

longstanding and continuing presence and service within the family and village. In his service to the family, he has given generously of his own

time, money, equipment, and assets to,

among other things, the family guesthouse and many fa`alavelave (family affairs). Likewise, he has equally

donated time, money, equipment and assets to village community projects.  As the Utaifeau, appointed by Mauga Ioane, he

has been instrumental in promoting the village’s standing, and pride, in the

world of fautasi (longboat) racing and intra-village rugby. While

conceding the breadth of Mailo’s knowledge of Samoan culture, Mailo having

published a book on the subject, Utaifeau contends that, because of his

continual firsthand experience with family matters, he is better situated with

respect to the more pertinent customs and traditions of the Mauga family, and he is more familiar with the family’s

communal landholding and assets.

 

Lavea directs us to a personal resume which includes

his successful completion of a college education, Bachelor of Arts, his short

military service, his leadership skills with the Aoa village aumaga (untitled

men’s organization), resulting in three consecutive Samoan cricket crowns.  He has also had a varied career with the

American Samoa Government in all its three branches, serving three terms in the

House of Representatives, Probation work with the High Court of American Samoa,

and as liaison officer for the Department of Public Safety.  In his capacity as the Lavea he has served as

family spokesman for his many

extended family ties, including the Mauga family. In all his endeavors, Lavea

stresses his commitment to service.

Counter-claimant Mailo’s background

is varied.  His early career was

education related, involved with both teaching and administration.  As a product of the early government scholarship

program, where he successfully completed postgraduate studies, Mailo

experienced firsthand the program’s shortfalls. 

Later he was appointed by Governor Haydon to reassess and revamp the

whole program to make it more student-friendly. His extensive government career

ended with his serving a term as Associate Judge of the High Court, from which

he recently retired. Throughout his work life, Mailo has also operated a number

of businesses, including a grocery store, a building contractor, a restaurateur

and tavern operator, taxi operator, apartment owner and, more recently,

commercial taro farming in the State of Hawaii. 

He has held the Mailo title of Fagatogo for many years and is a leading

official of the Roman Catholic Diocese of Pago Pago, Samoa.

 

In our assessment, we find that while

Mailo prevails on the consideration of knowledge of Samoan custom, we rank

Utaifeau slightly ahead of a very strong field on the considerations of

forcefulness, character, and personality. 

His superior business skills and industry; his leadership record with

the village aumaga as the Utaifeau; his benevolence as evidenced by the

regularity of his significant contributions in time, property, and money to

family and village, his honesty and integrity, his unassuming manner and his

sense of humility, has, in our view, spoken most persuasively in terms of his

personal traits and personal potential.

 

We find that Utaifeau prevails on

this consideration.

 

4.  Value to Family, Village, and

Country—A.S.C.A. § 1.0409(c)(4)

 

Under this heading we find that no

one candidate stands out decisively from the others in terms of value to

country.  In their own career paths and

endeavors, we are satisfied that all of the candidates have contributed creditably

to the general welfare of the people and country.  With regard to the considerations of value to

family and village, while each candidate is able to point to specific instances

of tautua (traditional, service) to either family, church, or village,

we find that Utaifeau’s contribution to both the Mauga family and the village

of Pago Pago stands out as more consistent and conspicuous over the claims of

the other candidates.  Utaifeau, in our

view, better personifies the proverb O

le ala i le pule o le tautua.” 

Moreover, he has lived in the village for most of his life

and has been actively involved in the affairs of the village and family.  His familiarity with family needs and members

is preferred.  See Aano v. Sitau,

2 A.S.R. 107, 110-11 (Trial Div. 1940); Tuinei v. Ieliko,

2 A.S.R. 117, 123 (Trial Div. 1940). 

Although Taufa`asau grew up, and has returned to live, in the village

after an extensive absence because of education and off-island duty stations,

he has been involved in village and family affairs to a much lesser extent than

Utaifeau.

 

We rate Utaifeau first on this

criterion.

 

Conclusion & Order

 

[4] Based on

the foregoing, we hold that Utaifeau is qualified to hold the title Mauga as he

prevails on the third and fourth statutory criteria although preceded by Taufa`asau,

Lavea, and Tuilefano on the first.  The

second criterion is discounted.

 

The Territorial Registrar shall, in

accordance with A.S.C.A. § 1.0409(b), register the matai title Mauga, attached to the village of Pago Pago, in

candidate Utaifeau Tasi Asuega.

 

It is so ordered.

 



[1] By this time, Fanene had withdrawn her counterclaim,

which was previously dismissed in open court, but she continued to file

additional material with the Clerk.

[2] See Taufa`asau v. Manuma, 4 A.S.R. 947, 949

(App. Div. 1967) (“Historically, the Mauga is known to be among the oldest and

most influential matai titles of

American Samoa.  Available historical

records dating from the earliest contacts of the Europeans with eastern or

American Samoa contain numerous references to the Mauga.”) The preeminence of

the Mauga title is, according to one account, traced to the time of the Tongan

occupation in Samoa, some seven centuries ago. 

See Amerika Samoa, Capt.

J.A.C. Gray, United States Naval Institute, 1960.

[3] Under A.S.C.A. § 3.0242(b), the Land and Titles

Division is accorded certain procedural flexibility consistent with the

exigencies of justice and convenience.

[4]  One of the

Mauga family’s traditional meeting sites.

[5] Candidate Mailo explains family inertia in terms of

“sub-family” politics over the issue of who should call family meetings. The

matter, however, appears quite clearly to have become a non-issue after

somebody took the initiative to use the public media to call a family meeting.

[6] A variation of the rule employs blood relationship to

the nearest common ancestor titleholder.

[7] It has also been suggested that the “Sotoa rule” is

more equitable in that it “avoids discrimination against clans which have not

held the title for several generations but whose members, according to the

tradition in many families, remain entitled to a fair chance at each new

vacancy and perhaps even to some affirmative credit on the theory that each

clan should have its turn at the title.” 

In re Matai Title “Laie”,

18 A.S.R.2d 35, 37 (Land & Titles Div. 1991).

[8] This history, incidentally, coincides with some

written accounts.  See fn. 2, infra.

[9] This sort of strategy, now prevalent with most ranking

matai succession disputes, seems to

underscore one thing only, and that is the common reality that there is the

well-beaten path to the courthouse.  But

the converse of this observation is the emerging reality that the Judicial

Branch is more and more evolving into being the preferred “matai

picker,” with Samoan families increasingly abdicating their traditional role.

  

Law reform efforts recurrently come and go before the Fono without any

readily apparent solution to the present avowedly unsatisfactory state of

affairs; judicial appointments and the rank suspicion that goes along with an

unpopular, albeit legally correct, court determination. For this reason, law

reform efforts could at least be redirected to explore matai selection alternatives. 

The focus does not have to be centered on the option of removing the decision-making

function from an indecisive family in favor of the courts, but on keeping

decision-making within the family by way of an alternative decision-making

process.

  

If a family, for any reason, is unable or unwilling to utilize the

selection process handed down by their forebears, where the model is open

discussions upon discussions until a consensus is reached, than an alternative

selection process geared to keeping the decision within the family might

perhaps be more appropriate, rather than passing the buck onto the court. 

  

Undoubtedly, an alternative selection process will be critically viewed

as un-Samoan, but such would be no more Samoan than the current process of

leaving it to a panel of non-family members, Associate Judges, who are guided

in part by statutory criteria that essentially appeal to the subjective.