Anoa`i v. Lai
 The sa`o has pule or the authority to make decisions about family lands, whereas an untitled family member has no pule or authority to unilaterally deal in family property.
 Under Samoan custom, family lands are under the jurisdiction of the matai.
 A unilateral and secret attempt by a matai to give his daughter sole authority over family land to the exclusion of his successors in title is inconsistent with Samoan tradition, and is contrary to statutory law of American Samoa with regard to the alienation of family land.
 Under the provisions of A.S.C.A. § 37.0221(a) and (b), native or communal land may, with the approval of the Governor, be leased to any person for any term not exceeding 55 years for any purpose, except for the mining of minerals and cutting of timber.
 The term “native proprietor” as used in A.S.C.A. § 37.0221 means the family sa`o or senior matai.
 The Separation of Structures from Communal Land Act does not repeal the mandates of the Alienation of Land Act with regard to the leasing of native land.
 Samoan custom recognizes that an untitled person does not have the right to permit strangers to live on communal land.
 The Alienation of Land Act limits the leasing of communal land to terms of 55 years. A.S.C.A. § 37.0221(a).
 The 55 year term limitation on leases, included in the Alienation of Land Act, does not have a “house-lease” exception.
 Civil penalties assessed pursuant to A.S.C.A. § 37.0230 apply equally to private individuals and public officials whose acts thwart the Governor’s statutory duties.
 Leases and subleases in violation of the Alienation of Land Act are mere nullities and where concluded between competent contracting parties, neither can be heard to complain.
 In aid of its jurisdiction, the Land and Titles Division of the High Court may invoke the procedural flexibility permitted by A.S.C.A. § 3.0242(b) where it finds it most consistent with natural justice and convenience to continue the case and remand it to the Land Commission.
SAGAPOLUTELE, Associate Judge.
Counsel: For Tumua Anoa`i, Katopau T. Ainu`u
For Michael Lien Shu Lai, Jennifer L. Joneson
For Ta`amuvaigafa T. Iakopo, Asaua Fuimaono
OPINION AND ORDER CONTINUING PROCEEDINGS AND
REMANDING MATTER TO LAND COMMISSION
This matter concerns a small commercial building in Fagatogo,
commonly known as the BP Building (“the building”), located on land
claimed by the Ta`amuvaigafa (“Ta`amu”) family. The building was
built by the Burns Philip (South Seas) Co. Ltd. (“BP”), in the early
1950s and it was used as one of BP’s merchandizing outlets. At the
time, BP had leased the site from the then sa`o of the Ta`amu family,
Ta`amu Faiumu. The lease term was originally for twenty years but it
was subsequently extended in May 1972, for an additional ten years, by
Ta`amu Iosefo Elisara. In both instances of lease and renewal, the lease
process was handled strictly in accordance with the statute governing the
alienation and leasing of native (communal) land, A.S.C.A. §§ 37.0221
et seq., (the “Alienation of Land Act”). That is, the lease agreement was
routed through the Land Commission and approved by the Governor.
BP’s tenancy finally ended in 1982. In accordance with the terms of the
lease, the building became part of the lessor’s property. Thereafter, the
building remained under the control and direction of the family sa`o up
until the demise of Ta`amu Iosefa Elisara. Following the death of
Ta`amu Iosefa Elisara, the family’s matai title remained vacant for many
years until the succession of defendant Ta`amu Ta`alolo Iakopo in June
1998. In the interim, however, Le`ala Pili (“Le`ala”), a member of the
Ta`amu family, took it upon herself to rent the building out to thirdparties.
She initially let the premises out to Mrs. Nive Reed for an
unspecified rent and term, applying the rental proceeds derived from that
tenancy to the use of her immediate side of the family; namely, the heirs
of Ta`amu Ma`alona.
Le`ala subsequently entered into another lease agreement, again on
behalf of “the Ta`amu Ma`alona heirs,” with plaintiff/cross-defendant
Tumua Anoa`i (“Anoa`i”) for a term of 10 years at a monthly rental of
$800. This instrument, dated April 25, 1995, was accepted by the
Territorial Registrar for recording as a “House Lease,” without regard to
the requirements of the Alienation of Land Act, as more fully discussed
According to Le`ala, she has never received any rents from Anoa`i, but it
was also evident that she did not pursue the unpaid rents with any vigor.
Anoa`i in turn sublet the building to defendant/cross-claimant Michael
Lienshui Lai (“Lai”), a “nonnative.” A.S.C.A. § 37.0201(e). This
sublease, executed with Lai on June 15, 1996, provided for a term of 5
years with a graduated monthly rental rate of $2,100 during the first
year, $2,200 during the second, and $2,300 for the remaining years.
Shortly after the current Ta`amu took office, he intervened on the
family’s behalf making a demand upon Lai, who then decided to deal
with the Ta`amu family’s matai. Consequently, Ta`amu, on behalf of
the Ta`amu family, and Lai, as “President Evergreen Corporation, Inc.,”
entered into an entirely separate lease agreement commencing January 1,
1999, for a term of 5 years, at a monthly rental of $2,300.
Findings and Discussion
The proceedings now before the Court first arose with Anoa`i filing suit
against Lai on their sublease agreement. Lai responded with a
counterclaim seeking damages against Anoa`i, alleging the latter’s
failure to renovate the building with rental advances made to him for that
purpose. Additionally, Lai filed an interpleader action joining both
Anoa`i and Ta`amu. Pending final disposition of the matter, the Court
earlier issued an interim order requiring Lai to deposit into registry of the
Court the rental proceeds on interpleader.
Le`ala was called by Anoa`i to explain her dealings with the building.
She testified that the building was not on Ta`amu land, but on communal
land of the Tiumalu family, of which she is also a member. According
to her understanding, Ta`amu Ma`alona, who was also a member of the
Tiumalu family, dealt with BP not as sa`o of the Ta`amu family but as a
member of the Tiumalu family. Le`ala thus, somehow, claims
entitlement to lease the building on behalf of Ta`amu Ma`alona’s
The evidence, however, quite clearly shows that the former Ta`amu
titleholders who dealt with BP were dealing as Ta`amu titleholders rather
than as some dubious sort of agent for the Tiumalu family. The
alienation process giving rise to the BP’s leases, which included
proceedings before the Land Commission and approval by the Governor,
is conspicuously void of any suggestion whatsoever that the demised
1 Le`ala’s legal theory escapes us. Even if the land is the communal
property of the Tiumalu family as claimed, we fail to see how the land
could have possibly devolved to the issue of Ta`amu Ma`alona, as the
territory’s law on descent and distribution does not apply to “communal
land.” See A.S.C.A. § 40.0106 and § 40.0206.
premises in question was anything but Ta`amu family property. We
further find that the Ta`amu titleholders who dealt with the Land
Commission in 1953 and 1972 were Ta`amu Faiumu and Ta`amu Elisara
respectively. Also conspicuous over the years to this day is the lack of
any objection or adverse claim to the leasehold site from any of the
We find that the building is the property of the Ta`amu family.
A. Le`ala-to-Anoa`i Lease, Anoa`i-to-Lai Sublease
[1-3] It is black letter law that the sa`o has pule or the authority to make
decisions about family lands. See generally Sagapolutele v.
Sagapolutele, 20 A.S.R.2d 16 (Land & Titles Div. 1991); Lutu v.
Taesaliali`i, 11 A.S.R.2d 80 (Land & Titles Div. 1989); Gi v. Temu, 11
A.S.R.2d 137 (Land & Titles Div, 1989); Coffin v. Mageo, 4 A.S.R. 14
(Trial Div. 1970); Lutu v. Fuimaono, 4 A.S.R. 450 (Trial Div. 1964);
Tiumalu v. Scanlan, 4 A.S.R. 194 (Trial Div. 1961). Conversely, an
untitled family member has no pule or authority to unilaterally deal in
family property. Malaga v. Alaga, 4 A.S.R. 735, 737 (Trial Div. 1966)
(“‘Who can act as a matai?’ The law in American Samoa is quite clear . .
. only a matai has the powers, the authority, the pule of the matai”); Lolo
v. Heirs of Sekio, 4 A.S.R. 477, 481 (Trial Div. 1964) (“[U]nder Samoan
custom, family lands are under the jurisdiction of the matai. . . . A young
man has no authority to permit strangers to live on communal family
lands”). See also Gi v. Temu, 11 A.S.R.2d 137, 141 (Land & Titles Div.
1989) (“A unilateral and . . . secret attempt by [a matai] to give his
daughter sole authority over family land to the exclusion of his
successors in title would seem to have been inconsistent with Samoan
tradition, and would certainly have been contrary to statutory law of
American Samoa with regard to the alienation of family land”).
 Quite clearly, Le`ala had no authority, cognizable either in law or in
custom, to lease out Ta`amu family property to Anoa`i. As she was
without right to convey a leasehold estate to Anoa`i, the latter equally
had nothing in the way of a leasehold interest to sublet. Moreover, the
building, as we have found, is a part of the communal property of
Ta`amu family. As such, any lease thereof is subject to the requirements
of the Alienation of Land Act, which in pertinent part provides:
(a) Native [or communal] land may, with the approval of the
Governor, be leased to any person for any term not exceeding
55 years for any purpose, except for the working of minerals
and cutting timber.
(b) Provisional agreements for the leasing of native land as
provided in subsection (a) may be entered into with the
native proprietor or proprietors. Every such provisional
agreement, stating in full its terms and conditions, shall
be submitted with a plan showing the situation of the land
the Governor for approval, and it shall have no validity
until such approval has been signified in writing.
A.S.C.A. § 37.0221 (emphasis added).
 None of the lease instruments presented to the Court are in
compliance with statute. The documents pertaining to the lease and
sublease involving Anoa`i are not even in contemplation of § 37.0321(b)
so as to at least qualify as “provisional agreement[s]” pending
gubernatorial approval. That is because the claimed lessor Le`ala does
not qualify as a “native proprietor,” as that term appears in the
enactment. From the cases above discussed, the term “native proprietor”
necessarily references in this instance the family sa`o or senior matai
[6-10] Even if the building was the separate property of the heirs of
Ta`amu Ma`alona, and it is clearly not, we fail to see how calling a lease
a “house lease” thereby excludes the transaction from the requirements
of the Alienation of Land Act, applicable to native land leases. First, the
Alienation of Land Act requires the Land Commission to meet
periodically for purposes of “making recommendations respecting the
approval or disapproval of instruments affecting . . . possession of
[communal] land.” A.S.C.A. § 37.0203(b). Leaseholds clearly come
within the reach of this enactment. Moreover, the house-lease stratagem
too conveniently ignores the reality that the communal land on which a
structure is located, is necessarily encumbered. Buildings do not exist in
a vacuum, notwithstanding the Separation of Structures From Communal
Land Act, A.S.C.A. §§ 37.1501 et seq., (the “Separation Act”). This
statute provides a vehicle for treating what would otherwise be realty
into personalty for the sole statutory aim of facilitating secured financing
for family members who build on communal land. The Separation Act
does not purport to do anything more. It certainly does not attempt to in
any way to repeal the mandates of the Alienation of Land Act as it
regulates the leasing of native land.2
2 Cf. Tiumalu v. Levi, 4 A.S.R.3d 272, 274 (Land & Titles Div. 2000)
(“Lease for buildings or portions of a building . . . are not subject to the
requirement that leases of communal land be approved by the
The Separation Act clearly does not facilitate the automatic encumbrance
of the situs realty without the agreement of the landowner (that is, the
sa`o of the landowning family). For instance, a mortgagee who takes a
mortgage on a separated structure has, without more, only the salvage
value of the separated structure in the event of foreclosure. Nothing
more. The mortgagee has no interest in the underlying land without
agreement of the landowner (the Samoan family through its sa`o)
properly transferred in accordance with Land Alienation Act.
Similarly with a leasehold situation, it cannot be sensibly suggested that
the lease of a separated house or building does not involve the situs
realty. To the contrary, the lease of a house or building also inextricably
involves the transfer of “possession,” A.S.C.A. § 37.0203(c), of the situs
realty. This hard and fast reality simply cannot be blissfully ignored on
some vague assumption that the Separation Act has somehow otherwise
adjusted property rights.
Moreover, the functionality of any house or building is meaningful only
in context that include such real property incidents such as rights of
ingress/egress and access to a certain curtilage area for parking and other
attendant needs. Again, buildings do not exist in a vacuum, and there is
absolutely nothing in the Separation Act that remotely suggests that
these sort of rights are part and parcel of the fictional statutory state of
[11-13] Furthermore, and from a policy3 point of view, it does not take
too much imagination to picture the sort of mischief potential with the
“house-lease” ruse. Among other things, this stratagem is anti-fa`a
3 AM. SAMOA REV. CONST. art. 1, § 3 provides:
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 interests. Such legislation as
may be necessary may be enacted to protect the lands, customs,
culture, and traditional Samoan family organization of persons
of Samoan ancestry, and to encourage business enterprises by
such persons. No change in the law respecting the alienation or
transfer of land or any interest therein shall be effective unless
the same be approved by two successive legislatures by a twothirds
vote of the entire membership of each house and by the
Samoa. It is in derogation of Samoan custom that recognizes that an
untitled person does not have the right to permit strangers to live on
communal land. Heirs of Sekio, 4 A.S.R. at 481. It thus has the potential
for eroding the notion of matai pule, and hence a “cornerstone” of the
fa`a Samoa (the Samoan way of life). Fairholt v. Aulava, 1 A.S.R.2d 73,
78 (Land & Titles Div. 1983) (“The Samoan way of life has twin
cornerstones, the matai system and communal land tenure”). It opens the
door to the extended encumbrance of communal lands (situs realty) to
the exclusion of the matai and family. The Alienation of Land Act limits
the leasing of communal land to terms not exceeding 55 years. A.S.C.A.
§ 37.0221(a). If these limits are not applicable to a “house-lease,” such
would appear to be without any limits as to term. Additionally, the
house-lease ruse would open the door to communal property dealings
which bypass legislative policy regulating the leasing of communal
property, see A.S.C.A. § 37.0221, and it would open the door for
unsupervised “improvident” communal land dealings, A.S.C.A. §
B. Ta`amuvaigafa-to-Lai Lease
 With respect to the Ta`amu and Lai lease, this instrument, although
seemingly dated—it was executed February 22, 1999—qualifies as a
“provisional agreement” pending gubernatorial approval in
contemplation of the Alienation of Land Act, A.S.C.A. § 37.0221(b).
The evidence shows that the contracting parties, Ta`amu and Lai with
capacity to enter into a lease of communal land submitted their
concluded, but provisional, lease agreement, together with a plan of the
demised premises as required by § 37.0221(b), to the Land Commission
for approval processing in accordance with the requirements of §
37.0203(b). Notwithstanding this statutory mandate, the Land
Commission inexplicably altered the whole statutory process by
withholding the parties’ leasehold instrument from the Governor solely
on the unelaborated observation that the “Taamuvaigafa matter is being
removed because this is a house lease.” (See Land Comm’n Minutes,
Feb. 18, 2000.) This exceptionary treatment appears even less merited
given the actual terms of the proposed lease agreement which refer to the
demised premises as “that pieces (sic) of land situated in the village of
Fagatogo,” followed by a detailed description of that land in metes and
4 This enactment charges the Land Commission with the duty of
preventing the “improvident alienation” of communal lands. It goes
without saying that the provision in the Ta`amu-to-BP lease that kept the
building part of the lessor’s property upon the expiration of the lease,
was a critical term of the lease that would have featured in the Land
Commission’s favorable deliberations and the Governor’s approval.
bounds. The Land Commission thus committed gross error with its
apparent theory that land is not land if you call it something else. We
remind the Land Commission of the civil penalties that flow from any
violations of Chapter 02, of Title 37 (see A.S.C.A. § 37.02305), which
apply equally to private individuals and public officials whose acts
thwart the Governor’s statutory duties.
A. Le`ala-to-Anoa`i Lease, Anoa`i-to-Lai Sublease
 We conclude that the Anoa`i lease and sublease are nullities, being
in violation of Alienation of Land Act, A.S.C.A. § 37.0221(b), and being
nullities concluded between competent contracting parties, neither can be
heard to complain. Anoa`i having had nothing to lease to Lai, he has no
claim upon which relief can be based and his complaint should,
therefore, be dismissed. Equally, Lai’s counterclaim against Anoa`i
must also be dismissed. As a nonnative failing to comply with the
mandatory provisions Alienation of Land Act, he is without a remedy.
Specifically, A.S.C.A. § 37.0230 provides in pertinent part provides:
[A]ny nonnative failing to conform to [Title 37]  chapter
 . . . shall be liable to the forfeiture to the owner of land, of
all improvements he may have erected or made on the land
and no action shall lie for recovery of any payment he may
have made or other expenditure he may have incurred in
B. Ta`amuvaigafa-to-Lai Lease
 We conclude on Lai’s interpleader action that Ta`amu, on behalf of
the Ta`amu family, has clearly shown superior rights to the land, and
hence the building, over Anoa`i’s claim. We note, however, from the
Land Commission’s file on the Ta`amu and Lai proposed lease, in
evidence as Ex. “8,” that there were a number of objections lodged with
the Land Commission, besides Anoa`i’s. While Anoa`i has had his day
in court, it is not clear to us on the record before us that the other
objectors have. Presumably with the tact taken by the Land Commission
to avoid meeting on the merits of the Ta`amu and Lai proposed lease, the
5 This enactment in pertinent part provides that “any person committing,
or attempting to commit, a breach of a provision of [Title 37]  chapter
 . . . shall be liable to a fine not to exceed $200.”
claims of the other objectors, if not voluntarily withdrawn, still remain
pending. Without any of the other objectors before us, full and final
relief sought here by Lai’s interpleader action is not available at this
time. In aid of our jurisdiction, this matter should be continued. We
invoke the procedural flexibility permitted the Land and Titles Division
by A.S.C.A. § 3.0242(b), and find it “most consistent with natural justice
and convenience,” to continue and remand to the Land Commission.
For reasons given, and in aid of our jurisdiction in this matter, the
following orders are entered:
1) Anoa`i’s complaint against Lai on the sublease is dismissed and
Anoa`i shall take nothing thereby.
2) Lai’s cross-complaint against Anoa`i on the sublease is dismissed and
Lai shall take nothing thereby.
3. The Ta`amu/Lai proposed lease is remanded to the Land Commission
and Governor for approval processing in accordance with the
requirements of Land Alienation Act.
4. This matter is continued sine die pending proceedings before the Land
Commission and Governor.
It is so ordered.