Series: 7ASR3d | Year: () | 7ASR3d225
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MALOUAMAUA, Defendants



Court of American Samoa


and Titles Division



No. 21-01



26, 2003



[1] The process

for alienating communal land, set forth in the Alienation of Communal Land Act

(A.S.C.A. §§ 37.0201 et seq.),

requires not only the involvement of the Land Commission, but gubernatorial

approval as well.


[2] The

Registration Act (A.S.C.A. §§ 37.0101 et

seq.) does not trump the

Alienation of Communal Land Act (A.S.C.A. §§ 37.0201 et seq.), nor does it

provide a vehicle for evading the latter.


[3] Individual

could not obtain title to property as his individually-owned land by simply

offering to register title with the Territorial Registrar and going through the

process set forth in the Registration Act, where land was in fact communal land

and had not been alienated pursuant to the Alienation of Communal Land




KRUSE, Chief Justice, SAGAPOLUTELE, Associate Judge, and MAMEA, Associate




For Plaintiff, Asaua Fuimaono

 For Defendant Lopati

Fau, Fai`ivae A. Galea`i, L.P.






Te`o Lauti Tavai offered to register with the Territorial Registrar title to

certain land “Pago,” located in the village of Vailoatai, as his own

individually-owned land.  Te`o’s claim

was publicly posted between November 30, 2000, through January 29, 2001,[1] and it had in turn

attracted the objections of Lopati Fau, now holder of the Fau title of

Vailoatai, and Te`o Malouamaua.  The

objectors both claimed that the land “Pago” was communal land of the Te`o

family.  Lopati Fau, a member of the Te`o

family, so testified.  We agree with the

objectors and accordingly deny Te`o’s claim for the reasons that follow. 



take judicial notice of this Court’s decision in Te`o v. Fau, LT No.

40-86 (Land & Titles Div. 1987), entered September 8, 1987.  The Court there awarded plaintiff, “Te`o

Lauti Tavai, for himself and on behalf of the Te`o family of Vailoatai,”

certain land located in the village of Vailoatai, known as “Pago.”  See id.  At the time of the case, the land Pago was

the subject of a lease with the federal government, with Fau Pulemau (objector

Fau Lopati’s predecessor in-title) as lessor.



1987 judgment held, among other things, that:


1. [T]he land known as Pago in the village of Vailoatai,

American Samoa is the communal land of the Te`o family under the control

of the senior matai or sa`o of the family, Teo.

2. [] Fau is a talking chief (tulafale) title of the Te`o

titleholder in Vailoatai.



(emphasis added); (see also Stipulation to Entry of

Judgment & Judgment 1-2).  This is a

final judgment, conclusive against the parties and Te`o’s present attempt to

undo this final judgment by attempting to invoke the land title registration

process, as set out in A.S.C.A. §§ 37.0101 et

seq. (the “Registration Act”), is a futile and hopelessly ineffectual



Te`o’s goal here, quite obviously, is to skirt the statutory restrictions

against the alienation of communal lands as contained in A.S.C.A. §§ 37.0201 et seq. (the “Alienation of Communal

Land Act”).  The process set out in the

Alienation of Communal Land Act, regulating the alienation of communal land,

requires not only the involvement of the Land Commission, to check against

improvident transactions, but gubernatorial approval as well.  See generally Pen v. Lavata`i, 30

A.S.R.2d 10, 13-14 (App. Div. 1996).  But

the Registration Act cannot trump the Alienation of Communal Land Act and it

certainly does not provide a vehicle for evading the latter.  Otherwise, the constitutionally mandated

policy of protective legislation requiring the courts to interpret statutes in

a way which is protective of the Samoan custom would be rendered quite

meaningless.  See Am. Samoa Rev. Const. art. I, § 3.[2]



view of the foregoing, Te`o’s application to register title in individual

ownership to land “Pago” in the village of Vailoatai is denied.  The Territorial Registrar shall, accordingly,

reject such application.



is so ordered.



[1]  Incidentally, the survey

offered by Te`o for registration was, on its face, procured in 1979, some 21

years before the offer to register title. 

However, from the Territorial Registrar’s file submitted to the Clerk’s

office, it was not at all clear that the requisite statutory certifications by

the surveyor and pulenu`u, pursuant to A.S.C.A. § 37.0102, were ever given.

[2]  Section 3. Policy of protective


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 two-thirds vote of the entire membership of each house and by

the Governor.