American Samoa
Issues Associated with Potential Changes to the Current System for Adjudicating Matters of Federal Law Gao ID: GAO-08-655 June 27, 2008American Samoa is the only populated U.S. insular area that does not have a federal court. Congress has granted the local High Court federal jurisdiction for certain federal matters, such as specific areas of maritime law. GAO was asked to conduct a study of American Samoa's system for addressing matters of federal law. Specifically, this report discusses: (1) the current system for adjudicating matters of federal law in American Samoa and how it compares to those in the Commonwealth of the Northern Mariana Islands (CNMI), Guam, and the U.S. Virgin Islands (USVI); (2) the reasons offered for or against changing the current system for adjudicating matters of federal law in American Samoa; (3) potential scenarios and issues associated with establishing a federal court in American Samoa or expanding the federal jurisdiction of the local court; and (4) the potential cost elements and funding sources associated with implementing those different scenarios. To conduct this work, we reviewed previous studies and testimonies, and collected information from and conducted interviews with federal government officials and American Samoa government officials.
Because American Samoa does not have a federal court like the CNMI, Guam, or USVI, matters of federal law arising in American Samoa have generally been adjudicated in U.S. district courts in Hawaii or the District of Columbia. Reasons offered for changing the existing system focus primarily on the difficulties of adjudicating matters of federal law arising in American Samoa, principally based on American Samoa's remote location, and the desire to provide American Samoans more direct access to justice. Reasons offered against any changes focus primarily on concerns about the effects of an increased federal presence on Samoan culture and traditions and concerns about juries' impartiality given close family ties. During the mid-1990s, several proposals were studied and many of the issues discussed then, such as the protection of local culture, were also raised during this study. Based on previous studies and information gathered for this report, GAO identified three potential scenarios, if changes were to be made: (1) establish a federal court in American Samoa under Article IV of the U.S. Constitution, (2) establish a district court in American Samoa as a division of the District of Hawaii, or (3) expand the federal jurisdiction of the High Court of American Samoa. Each scenario would present unique issues to be addressed, such as what jurisdiction to grant the court. The potential cost elements for establishing a federal court in American Samoa include agency rental costs, personnel costs, and operational costs, most of which would be funded by congressional appropriations. Exact details of the costs to be incurred would have to be determined when, and if, any of the scenarios were adopted. The controversy surrounding whether and how to create a venue for adjudicating matters of federal law in American Samoa is not principally focused on an analysis of cost effectiveness, but other policy considerations, such as equity, justice, and cultural preservation.
GAO-08-655, American Samoa: Issues Associated with Potential Changes to the Current System for Adjudicating Matters of Federal Law
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Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
June 2008:
American Samoa:
Issues Associated with Potential Changes to the Current System for
Adjudicating Matters of Federal Law:
GAO-08-655:
GAO Highlights:
Highlights of GAO-08-655, a report to congressional requesters.
Why GAO Did This Study:
American Samoa is the only populated U.S. insular area that does not
have a federal court. Congress has granted the local High Court federal
jurisdiction for certain federal matters, such as specific areas of
maritime law. GAO was asked to conduct a study of American Samoa‘s
system for addressing matters of federal law. Specifically, this report
discusses: (1) the current system for adjudicating matters of federal
law in American Samoa and how it compares to those in the Commonwealth
of the Northern Mariana Islands (CNMI), Guam, and the U.S. Virgin
Islands (USVI); (2) the reasons offered for or against changing the
current system for adjudicating matters of federal law in American
Samoa; (3) potential scenarios and issues associated with establishing
a federal court in American Samoa or expanding the federal jurisdiction
of the local court; and (4) the potential cost elements and funding
sources associated with implementing those different scenarios. To
conduct this work, we reviewed previous studies and testimonies, and
collected information from and conducted interviews with federal
government officials and American Samoa government officials.
What GAO Found:
Because American Samoa does not have a federal court like the CNMI,
Guam, or USVI, matters of federal law arising in American Samoa have
generally been adjudicated in U.S. district courts in Hawaii or the
District of Columbia.
Reasons offered for changing the existing system focus primarily on the
difficulties of adjudicating matters of federal law arising in American
Samoa, principally based on American Samoa‘s remote location, and the
desire to provide American Samoans more direct access to justice.
Reasons offered against any changes focus primarily on concerns about
the effects of an increased federal presence on Samoan culture and
traditions and concerns about juries‘ impartiality given close family
ties. During the mid-1990s, several proposals were studied and many of
the issues discussed then, such as the protection of local culture,
were also raised during this study.
Based on previous studies and information gathered for this report, GAO
identified three potential scenarios, if changes were to be made: (1)
establish a federal court in American Samoa under Article IV of the
U.S. Constitution, (2) establish a district court in American Samoa as
a division of the District of Hawaii, or (3) expand the federal
jurisdiction of the High Court of American Samoa. Each scenario would
present unique issues to be addressed, such as what jurisdiction to
grant the court.
The potential cost elements for establishing a federal court in
American Samoa include agency rental costs, personnel costs, and
operational costs, most of which would be funded by congressional
appropriations. Exact details of the costs to be incurred would have to
be determined when, and if, any of the scenarios were adopted. The
controversy surrounding whether and how to create a venue for
adjudicating matters of federal law in American Samoa is not
principally focused on an analysis of cost effectiveness, but other
policy considerations, such as equity, justice, and cultural
preservation.
Figure: Map Showing Location of American Samoa, CNMI, Guam, and USVI.
[See PDF for image]
Source: GAO, Map Resources (map art).
[End of figure]
What GAO Recommends:
This report contains no recommendations, but is focused on providing
decision makers with further details on various scenarios for
potentially changing the current system of adjudicating matters of
federal law in American Samoa.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-655]. For more
information, contact William Jenkins at (202) 512-8777 or
jenkinswo@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Unlike Other Insular Areas, Matters of Federal Law in American Samoa
Are Adjudicated in U.S. District Courts in Hawaii or the District of
Columbia:
Proposals for Changing the Current System of Adjudicating Matters of
Federal Law in American Samoa Remain Controversial:
Scenarios for Establishing a Federal Court in American Samoa or
Expanding the Federal Jurisdiction of the High Court of American Samoa
Have Varied Support and Unresolved Issues:
Potential Cost Elements Subject to Considerable Uncertainties:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Objectives, Scope and Methodology:
Group Discussions and Public Comments:
Potential Cost Elements:
Appendix II: Comments from the Administrative Office of the United
States Courts:
Appendix III: Comments from the Department of the Interior:
Appendix IV: Comments from the Office of the Governor, American Samoa:
Appendix V: History and Development of the Judicial System in American
Samoa:
Overview:
Jurisdiction:
Appeals:
Judges:
Appendix VI: History and Development of the Judicial System of the
Commonwealth of the Northern Mariana Islands:
Overview:
Jurisdiction:
Appeals:
Judges:
Appendix VII: History and Development of the Judicial System of Guam:
Overview:
Jurisdiction:
Appeals:
Judges:
Appendix VIII: History and Development of the Judicial System in the
United States Virgin Islands:
Overview:
Jurisdiction:
Appeals:
Judges:
Appendix IX: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Comparison between Article IV and Article III Courts:
Table 2: Comparison of Local (Nonfederal) Courts in American Samoa,
CNMI, Guam, and USVI:
Table 3: Federal Statutes Conferring Jurisdiction on the High Court of
American Samoa:
Table 4: Comparison of Federal Jurisdiction of the High Court of
American Samoa with Federal Courts in CNMI, Guam, and USVI:
Table 5: Description of Scenarios for Establishing a Federal Court in
American Samoa or Expanding the Federal Jurisdiction of the High Court
of American Samoa:
Figures:
Figure 1: Map Showing the Location of American Samoa, CNMI, Guam, and
USVI:
Figure 2: Map Showing Distances and Flying Times between American Samoa
and CNMI, Guam, Hawaii, and Washington, D.C.:
Figure 3: Flyer Distributed in American Samoa:
Abbreviations:
AOUSC: Administrative Office of the U.S. Courts:
CJA: Criminal Justice Act:
CNMI: Commonwealth of the Northern Mariana Islands:
DOI: Department of the Interior:
DOJ: Department of Justice:
EOUSA: Executive Office for U.S. Attorneys:
FBI: Federal Bureau of Investigation:
GSA: General Services Administration:
USMS: U.S. Marshals Service:
USVI: U.S. Virgin Islands:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
June 27, 2008:
The Honorable Nick J. Rahall II:
Chairman:
The Honorable Don Young:
Ranking Republican Member:
Committee on Natural Resources:
House of Representatives:
The Honorable Eni F.H. Faleomavaega:
House of Representatives:
American Samoa is unique among U.S. insular areas in that it does not
have a federal court. [Footnote 1] A U.S. territory since the early
1900s, American Samoa has internal self-government under a locally
adopted Constitution, and the High Court of American Samoa is not part
of the U.S. federal judicial structure. American Samoa‘s local
judiciary was initially created and administered by the U.S. Navy, but
since 1951 has operated under the authority of the Secretary of the
Interior, who appoints the High Court Chief Justice and Associate
Justice.
The issue of establishing a federal court in American Samoa is not new.
In the mid-1990s, legislative proposals were developed that would have
included the establishment of a federal court in American Samoa.
However, these initiatives were not enacted by Congress and were
controversial among American Samoans. Then, again, in February 2006,
the Delegate from American Samoa introduced legislation in the U.S.
Congress to establish a federal court in American Samoa [Footnote 2]
and later that month, the American Samoa legislature held a public
hearing to solicit public comments.[Footnote 3] No congressional
actions were taken on the bill and the Delegate from American Samoa
withdrew the legislation after he and others requested this report.
In particular, you requested that we examine the unique judicial
structure of American Samoa and identify the issues associated with
establishing a federal court in American Samoa. This report discusses:
(1) the current system and structure for adjudicating matters of
federal law arising in American Samoa and how it compares to those in
the Commonwealth of the Northern Mariana Islands (CNMI), Guam, and the
U.S. Virgin Islands (USVI);
(2) the reasons that have been offered for or against changing the
current system and structure for adjudicating matters of federal law in
American Samoa;
(3) the description of different scenarios for establishing a federal
court in American Samoa or expanding the federal jurisdiction of the
High Court of American Samoa if a change to the current system were
made, and the identification of issues associated with each scenario;
and;
(4) the potential cost elements and funding sources associated with
implementing the different scenarios for establishing a federal court
in American Samoa.
We are not making recommendations regarding whether the current system
and structure for adjudicating matters of federal law in American Samoa
should be changed. Also, we will not be making any determinations as to
whether the current system is more or less costly than the different
scenarios presented in this report. Rather, our purpose is to provide
decision makers with information regarding the issues associated with
potential scenarios for change.
To meet our objectives, we reviewed historical documents, congressional
testimonies, law review articles, and previous studies, and conducted
interviews with federal government officials, to include: the
Administrative Office of the U.S. Courts (AOUSC); the Department of the
Interior (DOI); the Department of Justice (DOJ); the General Services
Administration (GSA); the U.S. Attorneys offices serving federal courts
located in CNMI and Guam, Hawaii, and USVI; the Inspector General
offices of the Departments of Education, Homeland Security,
Transportation, and Health and Human Services; the U.S. Court of
Appeals for the Ninth Circuit; the U.S. District Court of Hawaii; the
District Court for the Northern Mariana Islands; the District Court of
Guam; and the District Court of the Virgin Islands. We also reviewed
historical documents and court statistical data from and conducted
interviews with American Samoa government officials in the legislative,
judicial, and executive branches of government. In addition, to address
the first three objectives, we held group discussions with members of
the local bar association and the local chamber of commerce, and
conducted a public forum with college students and members of the
general public during our visit to American Samoa in October 2007.
Further, we established an e-mail account and received comments from
the general public regarding their views on possible scenarios for
establishing a federal court in American Samoa or expanding the federal
jurisdiction of the High Court of American Samoa. Although these views
cannot be generalized to the population of American Samoa as a whole,
they provided us with a better understanding of the range of issues
that were important to members of the local community. To address the
first three objectives, we also interviewed recognized legal experts on
territorial governance issues. These experts were not intended to be
representative of all expert opinions on American Samoa judicial
issues, but were contacted because they could provide insights on
territorial governance issues in general. For the fourth objective, we
collected available data regarding the potential cost elements and
funding sources related to establishing a federal court in American
Samoa from AOUSC, GSA, and DOJ‘s Executive Office for United States
Attorneys (EOUSA) and U.S. Marshals Service (USMS). Since these
agencies could only provide rough estimates of potential costs, and
because of the numerous caveats associated with the various costs
elements, the data cannot be used for budget purposes or to measure the
true costs regarding the establishment of a federal court in American
Samoa. Further, since the court scenarios were hypothetical and the
exact details of the jurisdiction, staffing, and physical facilities
are not known, the estimated costs cannot be aggregated to obtain a
precise estimate of the total costs for the scenarios. We did not
collect any cost data related to expanding the federal jurisdiction of
the High Court of American Samoa, since this would be a unique judicial
structure and there is no comparable existing federal court structure
upon which to estimate costs. We found the cost data provided to be
sufficiently reliable to provide rough estimates of potential future
costs for establishing a federal court in American Samoa, with
limitations as noted. Appendix I contains a more detailed description
of the scope and methodology.
We conducted this performance audit from April 2007 to June 2008 in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.
Results in Brief:
In contrast to other insular areas of the United States, such as CNMI,
Guam, and USVI, which have their own federal courts, American Samoa
does not have a federal court; rather, the High Court of American Samoa
has been granted limited federal jurisdiction for certain issues, such
as food safety, protection of animals, conservation, and shipping
issues. Because of the limits to the High Court‘s federal jurisdiction,
other matters of federal law arising in American Samoa have been
adjudicated in U.S. district courts, mainly in Hawaii or the District
of Columbia. Since a 2001 precedent-setting case involving human
trafficking, federal prosecutors have initiated criminal proceedings in
the U.S. District Court of Hawaii, in addition to past practices of
handling matters only in the U.S. District Court for the District of
Columbia. With regard to federal civil cases, in certain circumstances,
such as when both the plaintiff and the defendant reside in American
Samoa and the events giving rise to the civil action occurred in
American Samoa, there is no federal court with jurisdiction to handle
such matters.
Reasons offered for changing the existing system focus primarily on the
difficulties of adjudicating matters of federal law arising in American
Samoa, such as logistical challenges related to American Samoa‘s remote
location, along with the goal of providing residents with more direct
access to justice in their place of residence, while reasons offered
against changing the current system of adjudicating matters of federal
law focus largely on concerns about the impact of an increased federal
presence on Samoan culture and traditions, as well as concerns
regarding the impartiality of local juries given close family ties.
During the mid-1990s, several proposals for changing the current system
for adjudicating matters of federal law were studied and many of the
issues discussed at that time, such as protecting local culture and
traditions, were also raised during our study. Based on these studies
and information gathered for this report, we identified three principal
scenarios for change, if a change to the current system were made: (1)
establishing a district court in American Samoa pursuant to Article IV
of the U.S. Constitution, [Footnote 4] (2) establishing a district
court in American Samoa that would be a division of the District of
Hawaii, or (3) expanding the federal jurisdiction of the High Court of
American Samoa. Key issues associated with implementing any of these
scenarios include the need for enacting a statutory change and
overcoming operational challenges, such as what jurisdiction to grant
the court and what type of courthouse and detention facility would need
to be built under each scenario.
The potential cost elements for establishing a federal court in
American Samoa under the first two scenarios include court construction
and agency rental costs, as well as personnel and operational costs for
judicial and executive branch staff, most of which would be funded by
direct appropriations to each federal agency. However, the estimated
cost elements for these two scenarios are based on assumptions that
could change in actual implementation and the exact details of the
jurisdiction, staffing, and physical facilities would have to be
determined if, and when, any of the scenarios were adopted. Therefore,
the cost elements presented cannot be used for budget purposes and an
analysis of cost effectiveness for individual scenarios would be of
limited value given the data limitations. Regarding the third scenario,
we did not collect cost data because the granting of federal criminal
jurisdiction and expanded federal civil jurisdiction to the local High
Court would be a unique judicial arrangement, and there is no existing
federal structure upon which federal agencies could base cost
estimates. However, the controversy surrounding whether and how to
create a venue for adjudicating matters of federal law in American
Samoa is not principally focused on costs, but on other factors, such
as equity, justice, and cultural preservation. Thus policy
considerations, other than an analysis of cost effectiveness, are more
likely to be the basis for deciding whether and how to establish a
court with federal jurisdiction in American Samoa.
In May 2008, we requested comments on a draft of this report from the
Administrative Office of the U.S. Courts; the Department of the
Interior; the Department of Justice; the General Services
Administration; and officials representing the executive, legislative,
and judicial branches of the government of American Samoa. The
Administrative Office of the U.S. Courts and the Department of Justice
provided technical comments which we have incorporated into this report
as appropriate. In addition to the technical comments received, the
Administrative Office of the U.S. Courts, the Department of the
Interior, and the Office of the Governor of American Samoa provided
official letters for inclusion in this report. These letters can be
seen in appendixes II, III, and IV, respectively.
Background:
As shown in figure 1, of the four insular areas addressed in this
report, three are located in the Pacific”American Samoa, CNMI, and
Guam”and one is located in the Caribbean”the USVI. Each of these
insular areas has its own unique culture and historical relationship
with the United States. See appendices V, VI, VII, and VIII for
detailed descriptions of the history and development of the judicial
systems of American Samoa, CNMI, Guam, and USVI, respectively.
Figure 1: Map Showing the Location of American Samoa, CNMI, Guam, and
USVI:
[See PDF for image]
Source: GAO, Map Resources (map art).
[End of figure]
American Samoa, the only U.S. insular area in the southern hemisphere,
is located about 2,600 miles southwest of Hawaii. American Samoa
consists of five volcanic islands and two coral atolls, covering a land
area of 76 square miles, slightly larger than Washington, D.C. The
capital of American Samoa, Pago Pago, is located on the main island of
Tutuila, which is mostly rugged terrain with relatively little level
land. Agricultural production is limited by the scarcity of arable
land, and tourism is impaired by the island‘s remote location and lack
of tourist-rated facilities. Two tuna canneries constitute the main
sources of private sector employment. Most of the economic activity and
government operations on Tutuila take place in the Pago Pago Bay area.
According to the American Samoa Department of Commerce data, in 2005
the population of American Samoa was about 65,500. [Footnote 5] Unlike
residents born in CNMI, Guam, and USVI, residents born in American
Samoa are nationals of the United States, but may become naturalized
U.S. citizens.[Footnote 6] Like residents of the other insular areas,
residents of American Samoa have many of the rights of citizens of the
50 states, but cannot vote in U.S. national elections and do not have
voting representation in the final approval of legislation by the full
Congress. The Delegate from American Samoa has all congressional
privileges, including a vote in committee, except a vote in Congress as
a whole. Further, according to Census Bureau data for 2000, the median
household income in American Samoa was $18,200, less than half of the
U.S. median household income of almost $41,000.
American Samoa does not have an organic act that formally establishes
the relationship between American Samoa and the United States. Two
deeds of cession were initially completed between Samoan chiefs, or
matai, and the United States in 1900 and 1904 [Footnote 7] and ratified
by the federal government in 1929. [Footnote 8] In these deeds, the
United States pledged to promote peace and welfare, to establish a good
and sound government, and to preserve the rights and property of the
people. The U.S. Navy was initially responsible for federal governance
of the territory. Then, in 1951, federal governance was transferred to
the Secretary of the Interior, which continues today. The Secretary
exercises broad powers with regard to American Samoa, including ’all
civil, judicial, and military powers“ of government in American Samoa.
[Footnote 9] American Samoa has had its own constitution since 1960,
and since 1983, the local American Samoa constitution may only be
amended by an act of Congress.[Footnote 10]
The American Samoa Constitution provides for three separate branches of
government”the executive, the legislative, and the judicial. Since
1977, a popularly elected Governor heads the American Samoa executive
branch for 4-year terms. [Footnote 11] Nearly 40 American Samoa
departments, offices, and other entities within the executive branch of
the American Samoa government provide public safety, public works,
education, health, commerce, and other services. The Governor has
responsibility for appointing the Attorney General, Director of Public
Safety, and other executive branch agency leaders. The legislature, or
Fono, is comprised of 18 senators and 20 representatives. Each of the
senators is elected in accordance with Samoan custom by the city
councils of the counties that the senator represents. Each of the
representatives is popularly elected from the representative districts.
American Samoa exercises authority over its immigration system through
its own locally adopted laws. In fiscal year 2007, a total of almost
$105 million in federal funds were provided from a variety of federal
agencies, including the Departments of the Interior, Education,
Agriculture, Transportation, and Health and Human Services.
Specifically, DOI provided funds that same year in the amount of
$22.9 million for American Samoa government operations, including the
High Court of American Samoa. In addition to these federal funds, a
portion of the funding for American Samoa government operations comes
from local revenues.
American Samoa Judiciary:
The American Samoa judiciary, as provided in the American Samoa
Constitution and Samoan Code, consists of a High Court and a local
district court under the administration and supervision of the Chief
Justice. [Footnote 12] The High Court consists of four divisions”the
trial division; the family, drug, and alcohol division; the land and
titles division; and the appellate division.[Footnote 13] The trial
division, which consists of the Chief Justice, the Associate Justice,
and associate judges, is a court of general jurisdiction, empowered to
hear, among other things, felony cases and civil cases in which the
amount in controversy exceeds $5,000. The Chief Justice and the
Associate Justice are appointed by the U.S. Secretary of the Interior
and are required to be trained in the law. There are six associate
judges, who are appointed by the Governor and are not required to have
legal training. The associate judges are matai, or chiefs, and they
preside over cases in the High Court, playing a more significant role in
deciding issues of matai titles and land. There is one local district
court judge, who is appointed by the Governor and must also have legal
training, who hears matters such as misdemeanor criminal offenses and
civil cases in which the matter in controversy does not exceed $5,000.
[Footnote 14] The Chief and Associate Justices, and the local district
and associate judges hold office for life with good behavior. [Footnote
15] The American Samoa judiciary has a public defender, probation
officers, translators, and marshals. Since the 1970s the Secretary of
the Interior has appointed federal judges, usually from the Ninth
Circuit, to serve temporarily as Acting Associate Justices in the
appellate division of the High Court of American Samoa. [Footnote 16]
American Samoan Customs and Traditions:
American Samoan customs and traditions have an influence over the local
legal system. The distinctive Samoan way of life, or fa‘a Samoa, is
deeply imbedded in traditional American Samoa history and culture. Fa‘a
Samoa is organized around the concept of extended family groups”people
related by blood, marriage, or adoption”or aiga. Family members
acknowledge allegiance to the island leader hierarchy comprised of
family leaders, or matai (chiefs). Matai are responsible for the
welfare of their respective aiga and play a central role in protecting
and allocating family lands. About 90 percent of land in American Samoa
is communally owned and controlled by matai, and there are limits in
American Samoa law regarding the transfer of property. [Footnote 17]
The concept of fa‘a Samoa extends to the governance structures in
American Samoa and, thus, most high-ranking government officials,
including judges, are matai. Further, Samoan law allows for a custom of
ifoga, or ceremonial apology, whereby if a member of one family commits
an offense against a member of another family, the family of the
offender proceeds to the headquarters of the family of the offended
person and asks for forgiveness. After appropriate confession of guilt
and ceremonial contrition by the offending family, the family offended
against can forgive the offense. If the offender is convicted in court,
the court may reduce the sentence of the offender if it finds that an
ifoga was performed.
Past Proposals to Establish a Federal Court in American Samoa:
The issue of establishing a federal court in American Samoa is not new.
This issue has arisen within the larger question of defining the
political status of American Samoa and its relationship with the United
States. For example, in the 1930s, Congress considered legislation that
would provide an avenue of appeal from the High Court of American Samoa
to the U.S. District Court of Hawaii, during its deliberation of an
organic act for American Samoa. However, this initiative was not
enacted by Congress. Further, since 1969, there have been three
American Samoa commissions convened to study the future political
status of American Samoa. These commissions have studied, among other
things, the necessity of an organic act. [Footnote 18] The most recent
commission‘s report, published in January 2007, did not recommend any
changes in American Samoa‘s political status as an unorganized and
unincorporated territory of the United States, with the intent that
American Samoa could continue to be a part of the United States and
also have the freedom to preserve Samoan culture. [Footnote 19] In
addition, in the mid-1990s DOJ proposed legislative options for changing
the judicial structure of American Samoa, including establishing a
federal court within the territory. These proposals were developed in
response to growing concerns involving white-collar crime in American
Samoa, which were detailed in a December 1994 DOJ crime assessment
report. [Footnote 20] However, while the House Committee on Resources
held hearings on the 1994 DOJ report in August 1995, and judicial
committees studied various legislative options, the Congress did not
take any actions on the proposals. Then, in February 2006, the Delegate
from American Samoa introduced legislation in the U.S. Congress to
establish a federal court in American Samoa and later that month, the
American Samoa Fono held a joint legislative public hearing to solicit
public comments on the bill. [Footnote 21] No congressional actions
were taken on the bill and the Delegate from American Samoa withdrew
the legislation after he and others requested this report.
Differences between Article IV Courts in Insular Areas and Article III
Courts:
The federal courts in the insular areas of CNMI, Guam, and USVI were
established under Article IV of the Constitution, whereas U.S. district
courts elsewhere in the United States were established under Article
III of the Constitution. [Footnote 22] Article IV courts are similar to
Article III courts, but differ in terms of specific jurisdiction and
tenure of the judges. As shown in table 1, Article IV courts generally
exercise the same jurisdiction as Article III courts and may also
exercise jurisdiction over local matters. Article IV judges are
appointed by the President, with the advice and consent of the Senate,
serve terms of 10 years, and can be removed by the President for cause.
Article III judges are appointed by the President, with the advice and
consent of the Senate, and serve with Article III protections of life
tenure for good behavior and immunity from reductions in salary.
Article IV judges hear both federal and bankruptcy cases, whereas
Article III courts generally have a separate unit to hear bankruptcy
cases. An Article III judge can be designated by the Chief Judge of the
Circuit Court of Appeals or the Chief Justice of the United States to
sit on an Article IV court. However, an Article IV judge can be
designated to sit only as a magistrate judge on an Article III court.
[Footnote 23]
Table 1: Comparison between Article IV and Article III Courts:
Jurisdiction:
Article IV courts in CNMI, Guam, and USVI: Federal and bankruptcy
combined;
Article III courts: Federal and bankruptcy separate.
Judges' terms:
Article IV courts in CNMI, Guam, and USVI: 10-year term, President may
remove for cause;
Article III courts: Life, for good behavior.
Judges' salaries:
Article IV courts in CNMI, Guam, and USVI: Set by statute;
Article III courts: Constitutionally protected.
Judges' responsibilities:
Article IV courts in CNMI, Guam, and USVI: Cannot sit on U.S. Court of
Appeals panel;
Article III courts: May sit on U.S. Court of Appeals panel.
Judges' benefits:
Article IV courts in CNMI, Guam, and USVI: If the judge retires after
meeting certain age and service requirements, the judge receives an
annuity equal to the salary at the time of retirement with limited cost-
of-living increases. The judge may also take senior status[A] after
meeting the age and service requirements and if recalled by the chief
judge of the circuit to perform judicial duties, in which case the judge
would receive the salary of an active judge. An annuity may be
available to those judges who left office prior to retirement. Federal
life insurance benefits are not offered;
Article III courts: If the judge retires after meeting certain age and
service requirements, the judge receives an annuity equal to the
judge‘s salary at the time of retirement. The judge may also take senior
status after meeting the age and service requirements and receive the
salary of an active district judge, provided that certain workload
requirements are met. Federal life insurance benefits are offered
throughout a judge‘s tenure.
Judges‘ appointment:
Article IV courts in CNMI, Guam, and USVI: President with advice and
consent of the Senate;
Article III courts: President with advice and consent of the Senate.
Designation of others in judges‘ absence:
Article IV courts in CNMI, Guam, and USVI: The chief judge from the
respective circuit or the Chief Justice of the United States can
temporarily designate others to handle court matters, including other
Article IV judges, Article III judges, or judges from the local superior
or local supreme court;
Article III courts: The chief judge from the circuit court can
temporarily designate only other Article III judges from within the
circuit to handle court matters; the Chief Justice of the United States
can assign Article III judges from outside the circuit to handle court
matters.
Source: GAO analysis of relevant federal laws.
[A] Senior status is a form of semi-retirement for federal judges in
which, after meeting certain age and service requirements, a judge may
work part-time and receive the salary of an active judge.
[End of table]
The Federal Courts in CNMI, Guam, and USVI:
The federal courts in CNMI, Guam, and USVI were established at different
times, but developed in similar ways. The District Court for the
Northern Mariana Islands was established in 1977 as specified in the
1975 agreement, or covenant, between the Northern Mariana Islands and
the United States. [Footnote 24] The District Court of Guam was
established when the federal government passed an Organic Act for Guam
in 1950. [Footnote 25] The District Court of the Virgin Islands, as it
currently exists, was established by an Organic Act in 1936. [Footnote
26] Each of these federal courts initially had jurisdiction over
federal, as well as local, issues. Over time, however, the federal
courts were divested of jurisdiction over local issues, with the
exception of the District Court of the Virgin Islands, which maintains
jurisdiction over cases involving local offenses that have the same
underlying facts as federal offenses. [Footnote 27] Similarly, each of
the federal courts had appellate jurisdiction over the local trial
courts until the local government established a local appellate court.
CNMI, Guam, and USVI have all established local Supreme Courts, so that
the federal courts no longer have appellate jurisdiction over local
cases. As such, the jurisdiction of each of the three federal courts
currently resembles that of district courts of the United States, which
include federal question jurisdiction, diversity jurisdiction, and the
jurisdiction of a bankruptcy court. [Footnote 28] Decisions of the
District Court for the Northern Mariana Islands and the District Court
of Guam may be appealed to the U.S. Court of Appeals for the Ninth
Circuit, and decisions of the District Court of the Virgin Islands may
be appealed to the U.S. Court of Appeals for the Third Circuit. An
Article IV judge”two Article IV judges in the case of the Virgin
Islands”sits on each of the federal courts and is appointed by the
President with the advice and consent of the Senate, for a term of 10
years, but may be removed by the President for cause. For the history
and development of courts in the CNMI, Guam, and USVI, see appendixes
VI, VII, and VIII, respectively.
Unlike Other Insular Areas, Matters of Federal Law in American Samoa Are
Adjudicated in U.S. District Courts in Hawaii or the District of
Columbia:
Unlike other insular areas, such as CNMI, Guam, and USVI, American
Samoa does not have a federal court. As a result, federal law
enforcement officials have pursued violations of federal criminal law
arising in American Samoa in the U.S. district courts in Hawaii or the
District of Columbia. In the absence of a federal court in American
Samoa, federal law has provided federal jurisdiction to the High Court
of American Samoa in areas such as food safety and shipping issues,
which is quite narrow compared to the comprehensive federal
jurisdiction granted to federal courts in other insular areas.
American Samoa‘s Local Judicial Structure Differs from Local Judicial
Structures in CNMI, Guam, and USVI:
With regard to its local judicial structure, American Samoa is different
from other U.S. insular areas. The judicial system in American Samoa
consists only of local courts that handle limited federal matters,
whereas the judicial system in CNMI, Guam, and USVI are composed of
local courts and federal courts that operate independently from each
other. Also, whereas the justices of the High Court in American Samoa
are appointed by the Secretary of the Interior, the judges of the local
courts in CNMI, Guam, and USVI are appointed by the Governors of each
insular area. Further, although decisions of the appellate division of
the High Court of American Samoa have been appealed to the Secretary of
the Interior, federal law provides that, 15 years after the
establishment of a local appellate court, decisions of the local
appellate courts in CNMI, Guam, and USVI may be appealed to the U.S.
Supreme Court. [Footnote 29]
Table 2: Comparison of Local (Nonfederal) Courts in American Samoa,
CNMI, Guam, and USVI:
Jurisdiction:
American Samoa: Local District Court: Minor criminal and civil
cases[A];
American Samoa: High Court: Trial Division: Major criminal and civil
cases[B];
American Samoa: High Court: Land and Titles Division: Land and titles
cases;
American Samoa: High Court: Family, Drug, and Alcohol Division:
Juvenile, certain domestic relations, domestic violence, and certain
substance and alcohol abuse cases;
American Samoa: High Court: Appellate Division: Appellate jurisdiction
over district court, and trial, land and titles, and family, drug, and
alcohol divisions;
CNMI: Superior Court[C]: Original jurisdiction over criminal and civil
cases;
CNMI: Supreme Court: Appellate jurisdiction over Superior Court
decisions;
Guam: Superior Court[D]: Original jurisdiction over criminal and civil
cases;
Guam: Supreme Court: Appellate jurisdiction over Superior Court
decisions;
USVI: Superior Court[E]: Original jurisdiction over criminal and civil
cases;
USVI: Supreme Court: Appellate jurisdiction over Superior Court
decisions.
Rights of Appeal:
American Samoa: Local District Court: High Court Trial or Appellate
Division;
American Samoa: High Court: Trial Division: High Court Appellate
Division;
American Samoa: High Court: Land and Titles Division: High Court
Appellate Division;
American Samoa: High Court: Family, Drug, and Alcohol Division: High
Court Appellate Division;
American Samoa: High Court: Appellate Division: Secretary of the
Interior;
CNMI: Superior Court[C]: Supreme Court of CNMI;
CNMI: Supreme Court: U.S. Supreme Court;
Guam: Superior Court[D]: Supreme Court of Guam;
Guam: Supreme Court: U.S. Supreme Court;
USVI: Superior Court[E]: Supreme Court of USVI;
USVI: Supreme Court: U.S. Court of Appeals for the Third Circuit[F].
Judges Appointment:
American Samoa: Local District Court: Governor, upon recommendation of
Chief Justice and confirmation by local Senate;
American Samoa: High Court: Trial Division: Justices: Secretary of the
Interior; Associate judges: Governor, upon recommendation of Chief
Justice and confirmation by local Senate;
American Samoa: High Court: Land and Titles Division: Justices:
Secretary of the Interior; Associate judges: Governor, upon
recommendation of Chief Justice and confirmation by local Senate;
American Samoa: High Court: Family, Drug, and Alcohol Division:
Justices: Secretary of the Interior; Associate judges: Governor, upon
recommendation of Chief Justice and confirmation by local Senate;
American Samoa: High Court: Appellate Division: Justices: Secretary of
the Interior; Associate judges: Governor, upon recommendation of Chief
Justice and confirmation by local Senate[G];
CNMI: Superior Court[C]: Governor, with the advice and consent of the
local Senate;
CNMI: Supreme Court: Governor, with the advice and consent of the local
Senate;
Guam: Superior Court[D]: Governor, with the advice and consent of the
local legislature;
Guam: Supreme Court: Governor, with the advice and consent of the local
legislature;
USVI: Superior Court[E]: Governor, with the advice and consent of the
local legislature;
USVI: Supreme Court: Governor, with the advice and consent of the local
legislature.
Judges' Term:
American Samoa: Local District Court: Life, but may be removed by Chief
Justice for cause;
American Samoa: High Court: Trial Division: Justices: Life, but may be
removed by Secretary of the Interior for cause; Associate judges: Life,
but may be removed by Chief Justice for cause;
American Samoa: High Court: Land and Titles Division: Justices: Life,
but may be removed by Secretary of the Interior for cause; Associate
judges: Life, but may be removed by Chief Justice for cause;
American Samoa: High Court: Family, Drug, and Alcohol Division:
Justices: Life, but may be removed by Secretary of the Interior for
cause; Associate judges: Life, but may be removed by Chief Justice for
cause;
American Samoa: High Court: Appellate Division: Justices: Life, but may
be removed by Secretary of the Interior for cause; Associate judges:
Life, but may be removed by Chief Justice for cause;
CNMI: Superior Court[C]: 6 years, and may be reappointed for 12-year
terms;
CNMI: Supreme Court: 6 years, and may be reappointed for 12-year terms;
Guam: Superior Court[D]: 7 years, and may be elected to subsequent
terms, but may be removed for cause;
Guam: Supreme Court: 10 years, and may be elected to subsequent terms,
but may be removed for cause;
USVI: Superior Court[E]: 6 years, unless sooner retired or removed for
cause;
USVI: Supreme Court: 10 years, and may be reappointed for life term,
but may be retired or removed for cause.
Source: GAO analysis of relevant federal, American Samoa, CNMI, Guam,
and USVI laws.
[A] Minor criminal and civil cases include cases such as misdemeanor
criminal cases and civil cases in which the amount in controversy does
not exceed $5,000.
[B] Major criminal and civil cases include cases such as felony
criminal cases and civil cases in which the amount in controversy
exceeds $5,000.
[C] The Superior Court of CNMI has a family court division.
[D] The Superior Court of Guam has traffic, small claims, family, and
drug court divisions.
[E] The Superior Court of USVI consists of criminal, civil, traffic,
family, conciliation, and small claims divisions.
[F] The U.S. Court of Appeals for the Third Circuit has appellate
jurisdiction over decisions of the Supreme Court of the Virgin Islands
for the first 15 years after its establishment. After the first 15
years, in 2022, the U.S. Supreme Court will have appellate jurisdiction
over decisions of the Supreme Court of the Virgin Islands.
[G]The quorum for the appellate division is two High Court justices and
one associate judge. Since there are only two High Court justices and
one of those justices has usually been involved in the matter in the
lower courts, the Secretary of the Interior has used the practice of
appointing active or senior federal district judges, usually from the
Ninth Circuit, as acting associate justices of the High Court, who
travel to American Samoa to hear matters before the High Court
Appellate Division as needed.
[End of table]
Because there is no federal court in American Samoa, matters of federal
law arising in American Samoa have generally been adjudicated in either
the District of Hawaii (Honolulu, Hawaii) or the District of Columbia
(Washington, D.C.), as stated earlier.
Federal Criminal Cases Arising in American Samoa Are Generally Heard in
Hawaii and the District of Columbia:
With regard to criminal matters, although federal criminal law extends
to American Samoa, questions surrounding the proper jurisdiction and
venue of cases have posed complex legal issues when violations of
federal law occurred solely in American Samoa. [Footnote 30] However,
since a 2001 precedent setting case involving human trafficking,
[Footnote 31] DOJ prosecutors told us that some of the legal issues
regarding jurisdiction and venue that had been unsettled in the past
have been resolved. For example, federal law provides that the proper
venue for a criminal case involving a federal crime committed outside
of a judicial district is: (1) the district in which the defendant is
arrested or first brought; or (2) if the defendant is not yet arrested
or first brought to a district, in the judicial district of the
defendant‘s last known residence; or (3) if no such residence is known,
in the U.S. District Court for the District of Columbia. [Footnote 32]
Prior to this 2001 case, most cases arising in American Samoa were
brought in the U.S. District Court for the District of Columbia. In
this 2001 case, prosecutors used the ’first brought“ statute to
establish venue in the District of Hawaii, since the defendant was
arrested and ’first brought“ to Hawaii and then indicted in the
District of Hawaii. Based on the facts and arguments presented, the
Ninth Circuit upheld this application of the ’first brought“ statute.
[Footnote 33] Following this case, most defendants who have been
charged with committing federal offenses in American Samoa have been
charged in one of two venues”the U.S. district courts in Hawaii or the
District of Columbia, because there is no federal court in American
Samoa. [Footnote 34] In 2006 and 2007, DOJ attorneys prosecuted
defendants in the U.S. district courts in both Hawaii and the District
of Columbia for civil rights violations and public corruption cases
arising in American Samoa. [Footnote 35] DOJ prosecutors told us that
their approach is adjusted depending on the facts of each case, legal
challenges presented, and prosecutorial resources available.
Proper Federal Venue May Not Exist for the Adjudication of Certain
Federal Civil and Bankruptcy Matters:
With regard to certain federal civil matters, when both the plaintiff
and the defendant reside in American Samoa, and the events giving rise
to the civil action occurred in American Samoa, there may be no proper
federal venue, meaning there may be no federal court that may hear the
case. [Footnote 36] However, some civil cases have been brought against
the Secretary of the Department of the Interior alleging that the
Secretary‘s administration of the government of American Samoa violated
the U.S. Constitution. [Footnote 37] In such cases, the U.S. District
Court for the District of Columbia has been the appropriate forum,
given that DOI is headquartered in Washington, D.C.
Bankruptcy relief is not available in American Samoa since federal law
has not explicitly extended the U.S. Bankruptcy Code to American Samoa,
and there is not a federal court in American Samoa in which bankruptcy
claims may be adjudicated. [Footnote 38] However, U.S. bankruptcy
courts may exercise jurisdiction over petitions for relief filed by
American Samoan entities under certain circumstances, such as if the
entities reside or do business in a judicial district of the United
States and the court finds that exercising jurisdiction would be in the
best interest of the creditors and the debtors.
The Federal Jurisdiction of American Samoa‘s High Court is Very Limited
Compared to Federal Courts in Other Insular Areas:
As discussed above, because American Samoa does not have a federal
court, federal officials have had to seek U.S. district courts to
adjudicate matters of federal law arising in American Samoa. Despite
the absence of a federal court in American Samoa, federal law provides
that the local court”the High Court of American Samoa”has limited
federal civil jurisdiction. In particular, federal law has explicitly
granted the High Court of American Samoa federal jurisdiction for
certain issues, such as food safety, protection of animals,
conservation, and shipping issues, as shown in table 3. Although the
High Court does not keep data on the number of federal cases it
handles, the Chief Justice of the High Court official told us that, on
occasion, these federal matters, particularly maritime cases, [Footnote
39] have taken a significant amount of the court's time. The Chief
Justice noted that the piecemeal nature of the High Court's federal
jurisdiction sometimes creates challenges. For example, although the
High Court has jurisdiction to hear certain maritime cases, the High
Court does not have the authority under certain federal statutes to
enjoin federal court proceedings or to transfer a case to a federal
court. Such a situation may lead to parallel litigation in the High
Court and a federal court. [Footnote 40]
Table 3: Federal Statutes Conferring Jurisdiction on the High Court of
American Samoa:
U.S. Code and Title: Title 7, Agriculture, Chapter 3;
Description: Jurisdiction over cases arising under the U.S. Grain
Standards Act.
U.S. Code and Title: Title 7, Agriculture, Chapter 6;
Description: To enforce, prevent, and restrain violations of certain
provisions related to insecticides and environmental pesticide control.
U.S. Code and Title: Title 7, Agriculture, Chapter 54;
Description: To enforce, prevent, and restrain violations of certain
provisions regarding the transportation, sale, and handling of certain
animals.
U.S. Code and Title: Title 7, Agriculture, Chapter 104;
Description: Jurisdiction over all cases arising under the Plant
Protection Act regarding plant health.
U.S. Code and Title: Title 7, Agriculture, Chapter 109;
Description: Jurisdiction over all cases arising under certain
provisions regarding the protection of animal health.
U.S. Code and Title: Title 15, Commerce and Trade, Chapter 44:
Description: To enforce, prevent, and restrain violations of certain
provisions related to the protection of horses.
U.S. Code and Title: Title 16, Conservation, Chapter 1;
Description: Exclusive jurisdiction to determine the payments that
should be disbursed to villages and families located within the
boundaries of the National Park of American Samoa for the lease of
their land by the United States.
U.S. Code and Title: Title 21, Food and Drugs, Chapter 10 and 12;
Description: To enforce, prevent, and restrain violations of certain
provisions related to poultry and meat inspection.
U.S. Code and Title: Title 46, Shipping;
Description: To enforce provisions related to maritime preferred
mortgages and liens.[A]
Source: GAO analysis of relevant federal laws.
[A] Maritime preferred mortgages are vessel mortgages that meet certain
filing requirements, and maritime liens are claims against vessels for
nonpayment for goods and services provided to the vessel.
[End of table]
As shown in table 4, the federal jurisdiction of the High Court of
American Samoa is very limited as compared to comprehensive federal
jurisdiction in federal courts located in CNMI, Guam, and USVI. In
addition to the limits of federal jurisdiction, there are differences
in the way federal matters are heard in the High Court from the federal
courts in other insular areas. For example, whereas the Secretary of
the Interior asserts authority to review High Court decisions under
federal law, the U.S. Courts of Appeals have appellate review of
decisions of the federal courts in CNMI, Guam, and USVI. Also, as
stated earlier, whereas the Justices of the High Court are appointed by
the Secretary of the Interior, the judges of the federal courts in
CNMI, Guam, and USVI are appointed by the President, with the advice
and consent of the U.S. Senate.
Table 4: Comparison of Federal Jurisdiction of the High Court of
American Samoa with Federal Courts in CNMI, Guam, and USVI:
Federal jurisdiction:
High Court of American Samoa: Limited to some conservation, agriculture,
food safety, and shipping issues;
Federal courts: District Court for CNMI: Jurisdiction of a district
court of the United States and a bankruptcy court;[A]
Federal courts: District Court of Guam: Jurisdiction of a district
court of the United States and a bankruptcy court;
Federal courts: District Court of USVI: Jurisdiction of a district
court of the United States and a bankruptcy court; jurisdiction over
all matters relating to income tax laws applicable to the Virgin
Islands; jurisdiction over local offenses with the same underlying
facts as federal offenses.
Rights of appeal:
High Court of American Samoa: (1) Appellate Division of High Court, (2)
Secretary of the Interior, (3) U.S. District Court for the District of
Columbia, (4) U.S. Court of Appeals for the District of Columbia
Circuit, and (5) U.S. Supreme Court;
Federal courts: District Court for CNMI: (1) U.S. Court of Appeals for
the Ninth Circuit, (2) U.S. Supreme Court;
Federal courts: District Court of Guam: (1) U.S. Court of Appeals for
the Ninth Circuit, (2) U.S. Supreme Court;
Federal courts: District Court of USVI: (1) U.S. Court of Appeals for
the Third Circuit, (2) U.S. Supreme Court.
Judge appointment:
High Court of American Samoa: Secretary of the Interior;
Federal courts: District Court for CNMI: President, with the advice and
consent of the Senate;
Federal courts: District Court of Guam: President, with the advice and
consent of the Senate;
Federal courts: District Court of USVI: President, with the advice and
consent of the Senate.
Judge term:
High Court of American Samoa: Life, but the Secretary of the Interior
may remove for cause;
Federal courts: District Court for CNMI: 10 years, but the President
may remove for cause;
Federal courts: District Court of Guam: 10 years, but the President may
remove for cause;
Federal courts: District Court of USVI: 10 years, but the President may
remove for cause.
Designation of others in judge's absence:
High Court of American Samoa: The Secretary of the Interior can appoint
Acting Associate Justices to sit on cases in the appellate division;
Federal courts: District Court for CNMI: The chief judge of the Ninth
Circuit can appoint a senior or active federal judge or judge from the
local superior or supreme court, and the Chief Justice of the U.S. can
appoint any district or circuit judge with consent;
Federal courts: District Court of Guam: The chief judge of the Ninth
Circuit can appoint a senior or active federal judge or judge from the
local superior or supreme court, and the Chief Justice of the United
States can appoint any district or circuit judge with consent;
Federal courts: District Court of USVI: The chief judge of the Third
Circuit can appoint a senior or active federal judge or judge from the
local superior or supreme court, and the Chief Justice of the United
States can appoint any district or circuit judge with consent.
Source: GAO analysis of relevant federal and American Samoa laws.
[A] The jurisdiction of U.S. district courts is prescribed in federal
law and includes federal question jurisdiction, which is jurisdiction
over civil cases arising under the U.S. Constitution, an act of
Congress, or a treaty, and diversity jurisdiction, which is
jurisdiction over civil cased filed based on the ’diversity of
citizenship“ of the litigants, such as between citizens of different
states or between U.S. citizens and those of another country, in which
the matter in controversy has a sum or value that exceeds $75,000.
[End of table]
Proposals for Changing the Current System of Adjudicating Matters of
Federal Law in American Samoa Remain Controversial:
While various proposals to change the current system of adjudicating
matters of federal law in American Samoa have been periodically
discussed and studied, controversy remains regarding whether any
changes are necessary and, if so, what options should be pursued. In the
mid-1990s, various proposals to change the current system were studied
by judicial committees and federal officials. Issues that were raised
at that time, such as protecting American Samoan culture and traditions,
resurfaced during our interviews with federal and American Samoa
government officials, legal experts, and in group discussions and public
comments we received. Reasons offered for changing the existing system
focus primarily on the difficulties of adjudicating matters of federal
law arising in American Samoa, along with the goal of providing American
Samoans with more direct access to justice in their place of residence.
Reasons offered against changing the current system of adjudicating
matters of federal law focus largely on concerns about the impact of an
increased federal presence on Samoan culture and traditions, as well as
concerns regarding the impartiality of local juries.
Concerns with White-Collar Crime Led to Discussions in the Mid-1990s on
Changing the System for Adjudicating Matters of Federal Law in American
Samoa:
The issue of changing the system for adjudicating matters of federal
law in American Samoa has been raised in the past in response to a
government audit and subsequent reports, which cite problems dating
back to the 1980s. These reports cited problems with deteriorating
financial conditions, poor financial management practices, and
vulnerability to fraudulent activities in American Samoa. [Footnote 41]
In March 1993, the newly elected Governor of American Samoa requested
assistance from the Secretary of the Interior to help investigate white-
collar crime in American Samoa in response to a projected $60 million
deficit uncovered by a DOI Inspector General audit. [Footnote 42] As a
result of this request, a team from DOJ spent 3 months assessing the
problem of white-collar crime in American Samoa and completed its
report in December 1994. [Footnote 43] The report concluded that white-
collar crime”in particular, public corruption”was prevalent in
American Samoa and provided details on the difficulties with enforcing
federal law in American Samoa. The report discussed three possible
solutions: (1) establishing a district court in American Samoa, (2)
providing the U.S. District Court of Hawaii with jurisdiction over
certain matters of federal law arising in American Samoa, or (3)
providing the High Court of American Samoa with federal criminal
jurisdiction.
By August 1995, the U.S. Congress held hearings on the 1994 DOJ report
and possible alternatives to provide for the prosecution of federal
crimes arising in American Samoa. At the hearing, some American Samoa
government officials opposed suggestions for changing the judicial
system in the territory and concern was expressed over increased federal
presence, the desire to retain self-determination regarding their
judicial structure, and the need to protect and maintain the matai
title and land tenure system in American Samoa. The American Samoa
Attorney General at that time testified that his office and the
Department of Public Safety had created a Joint Task Force on Public
Corruption that investigated and prosecuted several white-collar
offenses, including embezzlement, bribery, fraud, public corruption,
forgery, and tax violations. [Footnote 44]
For several months following the 1995 congressional hearings, different
legislative options were studied by judicial committees within Congress
and federal officials. One bill was drafted that would have given the
U.S. District Court of Hawaii limited jurisdiction over federal cases
arising in American Samoa. The bill proposed that one or more
magistrate judges may sit in American Samoa, but district judges of the
U.S. District Court of Hawaii would presumably preside over trials in
Hawaii. The bill was opposed by some federal judicial officials citing
an unfair burden that would be placed on the District of Hawaii, as
well as on defendants, witnesses, and juries, due, in part, to the
logistical difficulties in transporting them between American Samoa and
Hawaii. [Footnote 45] By 1996, the proposed legislation was revised to
establish an Article IV court in American Samoa with full staff
accompaniments and limited federal jurisdiction that would exclude
cases that would put into issue the office or title of matai and land
tenure. [Footnote 46] While DOJ sent the legislation to the President
of the Senate and Speaker of the House in October 1996, it was never
introduced into the 104th Congress or in subsequent congressional
sessions.
Concerns about Human Trafficking and Federal Grant-Related Corruption
Have Heightened Law Enforcement Focus on American Samoa:
While the mid-1990‘s legislative proposals were primarily concerned with
white-collar crime in American Samoa, more recently, different types of
criminal activities have emerged. Prior to 1999, FBI officials told us
that allegations of criminal activity in American Samoa were
investigated by agents based in the Washington, D.C. field office and,
due to the distance and costs involved, very few investigations were
initiated. Around mid-1999, FBI began to assign Hawaii-based agents to
investigations in American Samoa in response to increasing reports of
criminal activity. Then, due to growing caseload and a crime
assessment, in December 2005 FBI opened a resident agency in American
Samoa. According to an FBI official, other than a National Park Service
fish and wildlife investigator affiliated with the National Park of
American Samoa, the FBI agents were the first federal law enforcement
agents to be stationed in American Samoa. FBI‘s increased activities
over the past 8 years, and establishment of a resident agency, have
targeted a growing number of crimes in American Samoa, including public
corruption of high-ranking government officials, fraud against the
government, civil rights violations, and human trafficking. Among the
most notable was U.S. v. Lee, which was the largest human trafficking
case ever prosecuted by DOJ, as reported in 2007. [Footnote 47] This
2001 case involved about 200 Chinese and Vietnamese victims who were
held in a garment factory, and in 2003, Lee was convicted in the U.S.
District Court of Hawaii of involuntary servitude, conspiring to
violate civil rights, extortion, and money laundering. Another federal
case in 2006 resulted in guilty pleas from the prison warden and his
associate for conspiring to deprive an inmate of rights, by assaulting
him and causing him bodily injury. [Footnote 48]
In December 2004, we found that American Samoa‘s failure to complete
single audits, [Footnote 49] federal agencies‘ slow reactions to this
failure, and instances of theft and fraud limited accountability for 12
key federal grants supporting essential services in American Samoa.
[Footnote 50] We recommended, among other things, that the Secretary of
the Interior coordinate with other federal agencies to designate the
American Samoa government as a high-risk grantee until it completed all
delinquent single audits. In June 2005, DOI designated the American
Samoa government as a high-risk grantee. The American Samoa government
subsequently completed all overdue audits and made efforts to comply
with single audit act requirements. Later, in December 2006, we
reported that insular area governments, including American Samoa, face
serious economic, fiscal, and financial accountability challenges and
that their abilities to strengthen their economies were constrained by
their lack of diversification in industries, scarce natural resources,
small domestic markets, limited infrastructure, and shortages of
skilled labor. [Footnote 51] Again, we cited the long-standing
financial accountability problems in American Samoa, including the late
submission of the reports required by the Single Audit Act, the
inability to achieve unqualified (’clean“) audit opinions on financial
statements, and numerous material weaknesses in internal controls over
financial reporting and compliance with laws and regulations governing
federal grant awards. [Footnote 52] We made several recommendations to
the Secretary of the Interior, including increasing coordination
activities with officials from other federal grant-making agencies on
issues such as late single audit reports, high-risk designations, and
deficiencies in financial management systems and practices. DOI agreed
with our recommendations, but we have not yet assessed its progress
toward implementing them.
In addition to these GAO reviews, FBI and various inspector general
agents have conducted a broad investigation into federal grant-related
corruption in American Samoa, which yielded guilty pleas in October 2005
from four former American Samoa government officials, including the
Director of Procurement of American Samoa, the Director of the
Department of Education of American Samoa, the Director of the
Department of Health and Social Services for American Samoa, and the
Director of the School Lunch Program for American Samoa. Additionally,
recent audits and investigations by the Inspector General offices of the
Departments of Homeland Security, Education, and the Interior indicate
that the American Samoa government has inadequate controls and
oversight over federal funds, that federal competitive bidding practices
have been circumvented, and that American Samoan officials have abused
federal funds for personal benefit. For example, in September 2007,
officials from the U.S. Department of Education designated the American
Samoa government as a high-risk grantee due to serious internal control
issues raised in previous single audits, and cited a number of
underlying fiscal and management problems. Due to the department‘s
concerns about the American Samoa government‘s ability to properly
administer and provide services with its funds, the department imposed
several special conditions, including restrictions on the drawdown of
grant funds. Also, the American Samoa legislature, or Fono, has been
assisting federal agencies in their efforts to investigate public
corruption and other crimes. Specifically, in early 2007, the Fono
established a Senate Select Investigative Committee to review and
investigate any unlawful, improper, wasteful, or fraudulent operations
involving local and federal funds or any other misconduct involving
government operations within all departments, boards, commissions,
committees, and agencies of the American Samoa government. An official
stated the committee reviews and investigates complaints, holds senate
hearings with relevant witnesses, and can refer cases to either the
American Samoa Attorney General or FBI for investigation and
prosecution.
Reasons Offered for Changing the Current System Focus Principally on
the Difficulties of Adjudicating Matters of Federal Law and Greater
Access to Justice:
As was the case in the 1990s, and was repeated in the interviews we
conducted and e-mail comments we received, the reasons offered for
changing the American Samoa judicial system principally stem from
challenges associated with adjudicating matters of federal law arising
in American Samoa and the desire to provide American Samoans with
greater access to justice. Federal law enforcement officials have
identified a number of issues that limit their ability to pursue
matters of federal law arising in American Samoa. These include
logistical challenges related to American Samoa‘s remote location.
Proponents of changing the judicial system of American Samoa also cite
reasons, such as providing more direct access to justice as in other
insular areas, serving as a possible deterrent to crime, and providing
a means to alleviate the shame, embarrassment, and costs associated
with being taken away to be tried more than 2,000 miles from American
Samoa. While the main areas of concern in the mid-1990s and in our
discussions were related to criminal matters arising in American Samoa,
there were also concerns regarding civil matters, such as federal debt
collection, although these were not addressed in much detail.
Logistical Challenges Related to American Samoa‘s Remote Location:
Without a federal court in American Samoa, investigators and federal
prosecutors whom we interviewed said they were limited in their ability
to conduct investigations and prosecute cases due to logistical
obstacles related to working in such a remote location. In addition to
high travel costs, and infrequent flights into and out of American
Samoa, DOJ officials said they face difficulties involving effective
witness preparation and difficulties communicating with agents during a
small window of time each day (due to the 7-hour time difference
between Washington, D.C. and American Samoa). In some cases, search
warrants or wiretaps were not used by the prosecutors to the extent
that they would have been if American Samoa were in closer proximity to
Washington, D.C. or Honolulu, Hawaii. [Footnote 53] Federal prosecutors
told us that far fewer witnesses have been called to testify in front
of the grand jury, given the burden of high travel costs from American
Samoa. Federal prosecutors also told us that they must also rely on
witness observations and summaries from federal agents stationed in
American Samoa rather than meet key witnesses face to face before
bringing charges or issuing subpoenas, as they would typically do.
Further, according to DOJ officials, the cost related to managing these
cases has limited the number of cases they are able to pursue. Federal
law enforcement agents told us that a federal court located in American
Samoa could bring additional investigative and prosecutorial resources
so that they would be able to pursue more cases. Although some have
suggested that judicial and prosecutorial resources from the judicial
districts of CNMI and Guam be deployed to American Samoa, the high
travel costs and logistical obstacles would not be any less, given that
there are no direct flights between American Samoa and Guam or between
American Samoa and CNMI. See figure 2 showing the distances between
American Samoa and CNMI, Guam, Hawaii, and Washington, D.C.
Figure 2: Map Showing Distances and Flying Times between American Samoa
and CNMI, Guam, Hawaii, and Washington, D.C.:
[See PDF for image]
This map indicates distances and flying times between American Samoa
and CNMI, Guam, Hawaii, and Washington, D.C., as follows:
Distances:
CNMI to Guam: 138 miles;
Guam to Hawaii: 3,800 miles;
American Samoa to Hawaii: 2,600 miles;
Hawaii to Washington, DC: 4,800 miles.
Flying times: Trip from American Samoa to (not including stopovers):
Hawaii - 5 hours;
Washington, D.C. - 18 hours (connection through Hawaii and U.S.
mainland);
CNMI - 13 hours (connection through Hawaii and Guam);
Guam - 12 hours (connection through Hawaii).
Source: GAO (art, analysis), MapResources (map).
[End of figure]
More Direct Access to Federal Court and Parity with Other Insular
Areas:
Another key reason offered for changing the system for adjudicating
matters of federal law in American Samoa is that a federal court would
provide residents with more direct access to justice and the ability to
pursue cases in the federal court system. Currently, the ability to
adjudicate federal cases exists only in very limited cases through the
High Court, at a significant cost of time and money to travel to U.S.
District Courts in Hawaii or Washington, D.C.; or not at all, in the
case of some civil matters and bankruptcy. Proponents state that the
establishment of a federal court would provide American Samoa parity
with other insular areas, such as CNMI, Guam, and USVI, which have
federal courts. Further, a legal expert said that a federal court in
American Samoa would provide the community with an opportunity to see
first hand how parties can come together to resolve their differences
with regard to federal matters. For example, some have asserted that if
public corruption trials were held in American Samoa, they would act as
a deterrent to others contemplating fraudulent behavior; increase
accountability with regard to government spending; and provide
satisfaction in witnessing wrong doers brought to justice. Some stated
in the February 2006 public hearing held by the Fono [Footnote 54] and
in e-mail comments we received that they have felt shame and
embarrassment when defendants are taken to distant courts and in our
group discussions, it was stated that American Samoa is perceived by
others as unable to render justice to its own residents. Further, some
officials of American Samoa have noted the significant costs that
defendants‘ families must bear in traveling great distances to provide
support during trials. This burden is exacerbated by the comparatively
low family incomes in American Samoa, which, as stated earlier, are
less than half of the U.S. median household income, according to 2000
Census Bureau data.
Finally, some people we met with stated that the current system of
holding federal criminal trials outside of American Samoa subjects
defendants to possible prejudices by jurors in other locations. They
cited the relative unfamiliarity of the judges and jurors in
Washington, D.C. or Honolulu, Hawaii regarding American Samoa cultural
and political issues and suggested that American Samoans would receive
a fairer trial in American Samoa than in these locations. This issue
had also been discussed in the mid-1990s. For example, in his testimony
during August 1995 congressional hearings, the then-Governor of
American Samoa stated that the people of American Samoa have the
ability to deliver just verdicts based on the evidence presented. He
noted that for almost 20 years prior, the trial division of the High
Court had successfully conducted six-person jury trials as evidence
that American Samoan customs and family loyalties had not prevented
effective law enforcement. [Footnote 55]
Comments from Group Discussions and E-mail Responses Reflect Some of the
Same Reasons Offered for Changing the Current System:
Views in support of changing the current system were also reflected in
some comments made during the group discussions we held in American
Samoa and in some of the e-mail responses we received. Some members of
the public expressed discontent over the significant costs associated
with American Samoan defendants and their families having to travel to
Hawaii or Washington, D.C. for court matters and they expressed the
importance of having a jury of their peers deciding their cases. Other
members of the public and a local community group expressed their
belief that a federal court in American Samoa may act as a deterrent
for the abuse of federal funds and public corruption, and provide
opportunities for American Samoans to pursue federal legal matters,
such as bankruptcy. While there was no consensus opinion, certain
members of the local bar association mentioned that having a federal
court could be beneficial for economic development, by attracting
qualified attorneys and court staff to American Samoa. Additionally,
one member stated that a federal court may lighten the workload and
reduce the backlog of the High Court by taking over its federal
maritime and admiralty matters.
Reasons Offered Against Changing the Current Judicial System Focus
Principally on Preserving the Culture and Traditions of American Samoa
and Concerns about Juries:
One of the key reasons offered against changing the current judicial
system is the concern that a federal court would impinge upon Samoan
culture and traditions. The most frequent concerns raised were related
issues” that the system of matai chiefs and the land tenure system could
be jeopardized. In raising these issues, some cited the deeds of cession
which specify that the United States would preserve the rights and
property of the Samoan people. Further, some law enforcement officials
we met with also opposed a change to the current system for prosecuting
federal cases arising in American Samoa because they were concerned
that, given the close familial ties in American Samoa, it would be
difficult to obtain convictions from local jurors.
Preservation of Local Culture and Traditions:
During the February 2006 Fono hearings, [Footnote 56 in e-mail comments
we received, and in statements by American Samoa government officials we
interviewed, concerns were voiced that the establishment of a federal
court in American Samoa could jeopardize the matai and land tenure
system of American Samoa. As noted above, matai hold positions of
authority in the community; for example, only matai may serve as
senators in the American Samoa legislature, and matai control the use
and development of the communal lands and allocate housing to their
extended family members. The land tenure system of American Samoa is
such that the majority of the land in American Samoa is communally
owned, and the sale or exchange of communally owned land is prohibited
without the consent of the Governor. Also prohibited is the sale or
exchange of communally owned and individually owned property to
people with less than one-half Samoan blood. [Footnote 57] American
Samoa government officials assert that the land tenure system fosters
the strong familial and community ties that are the backbone of Samoan
culture and that limits on the transfer of land are important to
preserve the lands of American Samoa for Samoans and protect the Samoan
culture.
Currently, cases regarding matai titles and land issues, such as
disputes over the rightful successor to a matai or land use or
improvements, are heard by the land and titles division of the High
Court of American Samoa. This division is composed of the Chief Justice
and Associate Justice, as well as associate judges, who are appointed
based on their knowledge of Samoan culture and tradition. Pursuant to
the federalist structure of the U.S. judiciary, if a federal court were
established in American Samoa most cases arising under local law, such
as matai and land disputes, would likely continue to be heard by the
local court. However, some American Samoa officials stated that they
are concerned that if a federal court were established in American
Samoa, federal judges, without the requisite knowledge of Samoan
culture and tradition, would hear land and title cases. They stated
that they would like to keep matai title and land tenure issues within
the jurisdiction of the High Court.
Another concern that was raised by government officials and residents of
American Samoa is that the presence of a federal court in American Samoa
may generate constitutional challenges to the matai and land tenure
system. Though such challenges may be brought in existing venues, some
voiced concerns that the establishment of a federal court in American
Samoa may make such challenges less costly and perhaps more likely.
In general, many residents of American Samoa said they value their
culture and traditions and think that the matai and land tenure systems
in American Samoa are critical components of the fa‘a Samoa. The
following quote from the Secretary of Samoan Affairs summarizes the
position we heard from many during our visit:
To this day, our native land tenure system remains at the very core of
our existence: our culture, our heritage and our way of life. Without
our native land tenure system, our matai or chieftain system will fade
over time”along with our language, our customs and our culture—.we, as
a people, have an overriding desire to keep the fabric of our society
(i.e., our Samoan culture) intact. No other U.S. state or territory
enjoys the total and complete preservation of its people‘s culture as
American Samoa. I fear that the imposition of a federal court system in
American Samoa may have a destructive impact on our culture. [Footnote
58]
Concerns about Juries:
Some have raised concerns regarding the establishment of a federal jury
system, given the potentially small pool of U.S. citizens in American
Samoa and the extended family ties among American Samoans. Federal law
provides that federal jurors must be U.S. citizens. [Footnote 59] As
discussed earlier, American Samoans are U.S. nationals, not U.S.
citizens, although they may apply and become U.S. citizens. Neither the
U.S. Census Bureau nor the American Samoa Department of Commerce
provides data on the number of U.S. citizens in American Samoa. Thus,
the proportion of the American Samoa adult population who are U.S.
citizens is unknown. If the number of U.S. citizens is fairly small,
then the pool from which to select federal jurors would be fairly small
without a statutory change. In addition, law enforcement officials have
speculated that extended family ties in American Samoa may limit the
government‘s ability to successfully prosecute cases. Specifically,
they raised the issue of jury nullification”the rendering of a not
guilty verdict even though the jury believes that the defendant
committed the offense”as a potential problem that may occur if jury
trials were held in American Samoa, due to the influence of familial
ties or other societal pressures on jurors. Federal law enforcement
officials we met with added that some witnesses involved in testifying
against others in previous federal criminal cases have relocated
outside of American Samoa and have lost their jobs and housing as a
result of their participation in cases. These officials stated that
they believe that similar societal pressures will be imposed on jurors
if trials were held in American Samoa. These officials concluded that
the current system of federal criminal trials taking place away from
American Samoa is the best way to get unbiased juries. [Footnote 60]
Comments from Group Discussions and E-mail Responses Reflect Some of the
Same Reasons Offered Against Changing the Current System:
Views expressing opposition to changing the current system were also
reflected in some comments we received from the group discussions we
held in American Samoa and from e-mail responses. Some members of the
public expressed concerns over an increased federal presence in American
Samoa and the potential legal challenges which could be brought
regarding the land tenure system and matai title traditions. Further,
some expressed concerns about non-Samoans filing discrimination
lawsuits over their inability to own land. Some stated that the current
system operates well and they did not see a need for change. Others
expressed opposition to a federal court in American Samoa due to their
concerns about impartial jurors. They stated that if a federal court
were established in American Samoa, jurors may not be able to be
impartial because of the close relations through family, culture,
church, government, or business. Finally, others expressed concerns
about the U.S. government pushing and imposing its will on American
Samoa, and their belief that changes to the current system should come
not from the federal government but from American Samoans themselves.
Scenarios for Establishing a Federal Court in American Samoa or
Expanding the Federal Jurisdiction of the High Court of American Samoa
Have Varied Support and Unresolved Issues:
Based on our review of legislative proposals considered during the mid-
1990s testimonies and reports and through discussions with legal experts
and American Samoa and federal government officials, we identified three
potential proposals, or scenarios, if a change to the judicial system of
American Samoa were to be made. These scenarios are (1) establishing an
Article IV district court in American Samoa, (2) establishing a district
court in American Samoa that would be a division of the District of
Hawaii, or (3) expanding the federal jurisdiction of the High Court of
American Samoa. Each scenario would require a statutory change and
present unique operational issues to be addressed. To the extent
possible, we cited written documents and knowledgeable sources in the
discussion of these issues. See appendix I for detailed information on
our scope and methodology.
Three Scenarios Present Different Structures and Operational Issues to
Be Resolved:
Based on our review of past legislative proposals, testimonies, and
reports,
and through discussions with legal experts and American Samoa and
federal government officials, we identified three potential scenarios
for
establishing a federal court in American Samoa or expanding the federal
jurisdiction of the High Court of American Samoa:
(1) establishing an Article IV district court in American Samoa;
(2) establishing a district court in American Samoa that would be a
division of the District of Hawaii, or;
(3) expanding the federal jurisdiction of the High Court of American
Samoa.
These scenarios are similar to those discussed in the 1990s, and are
described in table 5. Each scenario would require a statutory change and
each presents unique operational issues that would need to be resolved
prior to implementation. Some issues to be resolved include determining:
(1) what jurisdiction would be granted to the court; (2) what type of
courthouse facility and detention arrangements would be needed and to
what standards, including security standards; and (3) what jury
eligibility requirements would apply.
Table 5: Description of Scenarios for Establishing a Federal Court in
American Samoa or Expanding the Federal Jurisdiction of the High Court
of American Samoa:
Scenario 2:
Scenario 3:
Structure:
Scenario 1: Federal court modeled on other federal courts in U.S.
territories;
Scenario 2: District court in American Samoa that is a division of the
District of Hawaii;
Scenario 3: Unique arrangement granting the High Court federal criminal
jurisdiction as well as expanded federal civil jurisdiction.
Judge and court staff:
Scenario 1: Article IV judge in American Samoa with court clerk and
support staff; Judge appointed by President with advice and consent of
the Senate;
Scenario 2: Article IV or Article III judge in American Samoa with
court clerk and support staff; Judge appointed by President with advice
and consent of the Senate;
Scenario 3: High Court Justices would hear additional federal matters;
Additional judge may be required, who may be appointed by the Secretary
of the Interior or, as with other federal judges, by the President,
with advice and consent of the Senate.
U.S. Attorney:
Scenario 1: One resident U.S. Attorney with three staff attorneys and
support staff;
Scenario 2: Share U.S. Attorney with District of Hawaii and staff a
satellite office with one Assistant U.S. Attorney, three staff
attorneys, and support staff;
Scenario 3: May use a federal prosecutor and/or local Attorney General.
Defender Services:
Scenario 1: Shared federal Public defender with District of Hawaii[A]
(using staff based in Hawaii) and/or CJA Panel;[B]
Scenario 2: Shared federal Public defender with District of Hawaii[A]
(using staff based in Hawaii) and/or CJA Panel;[B]
Scenario 3: Under current law, federal defender services are not
provided unless within a judicial district. May be able to use a local
public defender.
U.S. Marshals Service:
Scenario 1: One U.S. Marshal, one chief deputy, one judicial security
inspector, two
deputy marshals, and one administrative staff;
Scenario 2: Share U.S. Marshal with Hawaii and staff a satellite office
with supervisory deputy marshal, two deputy marshals, and one
administrative
staff;
Scenario 3: Federal detention and security requirements may not apply.
May be able to use a local marshal or law enforcement staff.
Probation and Pretrial Services:
Scenario 1: One chief probation officer, one probation officer and one
administrative staff in American Samoa with shared staff in District of
Hawaii for additional support;
Scenario 2: One chief probation officer, one probation officer and one
administrative staff in American Samoa with shared staff in District of
Hawaii for additional support;
Scenario 3: Under current law, federal Probation and Pretrial services
are not provided unless within a judicial district.
Facilities:
Scenario 1: New courthouse facility would be needed that can house
judge, court staff, U.S. Attorney staff, U.S. Marshal staff, and
holding facility. Unclear whether new federal detention center would be
needed or whether a portion of the existing local prison could be
upgraded;
Scenario 2: New courthouse facility would be needed that can house
judge, court staff, U.S. Attorney staff, U.S. Marshal staff, and
holding facility. Unclear whether new federal detention center would be
needed or whether a portion of the existing local prison could be
upgraded;
Scenario 3: Federal court requirements may not apply. May be able to
use existing High Court or District Court facilities. Unclear whether a
new prison would be needed or whether a portion of the existing prison
could be upgraded.
Jurisdiction:
Scenario 1: May be jurisdiction of district court and bankruptcy court,
or may be more limited;
Scenario 2: May be jurisdiction of district court and bankruptcy court,
or may be
more limited;
Scenario 3: Limited jurisdiction, which may grow over time.
Appeals:
Scenario 1: Appeals to U.S. Court of Appeals for the Ninth Circuit;
Scenario 2: Same as District of Hawaii (appeals to U.S. Court of
Appeals for the Ninth Circuit);
Scenario 3: It is unclear whether and to which tribunal High Court
decisions would be appealed.
Source: GAO analysis of relevant federal laws.
[A] According to Federal Public Defender officials, it is unlikely that
a court in American Samoa would reach the minimum 200 appointments per
year required to appoint a Federal Public Defender in American Samoa.
[B] U.S. district courts, with the approval of the judicial council of
the circuit, must have a plan for furnishing representation for any
person financially unable to obtain adequate representation. Under this
plan, a judge can appoint counsel from a federal defender organization
authorized by the court or a panel of attorneys designated or approved
by the court”called a Criminal Justice Act (CJA) panel”to furnish legal
representation for those defendants who are financially unable to obtain
counsel. 18 U.S.C. § 3006A. Where a federal defender organization is
established, the CJA provides that panel attorneys be appointed in a
substantial proportion of the cases (defined by guidelines as
approximately 25 percent of the appointments annually in a district).
[End of table]
Scenario 1: Establishing an Article IV District Court in American
Samoa:
The original structure of this scenario came from draft legislation
submitted by DOJ to the Speaker of the U.S. House of Representatives and
the President of the U.S. Senate in October 1996, which proposed the
creation of a new federal court in American Samoa. [Footnote 61] The
legislation
specified that the court would have limited jurisdiction that would
exclude matters pertaining to matai title and land tenure issues. Under
this scenario, federal law would authorize a federal court structure
that most closely resembled federal courts in CNMI, Guam, and USVI. It
would include an Article IV district court with a district judge, court
clerk, and support staff. Below is a description of the key issues
under this scenario.
Jurisdiction: The statute creating the Article IV district court would
specify the court's jurisdiction. It could be limited to criminal cases
only, or may or may not include bankruptcy, federal question, and
diversity jurisdiction. American Samoa officials and others whom we
interviewed were divided on whether the law establishing a district
court in American Samoa should explicitly exclude matai and land
tenure issues from the court‘s jurisdiction. Another possibility is
that, as in other insular area federal courts, the federal jurisdiction
of the court could grow over time. For example, while the District
Court of Guam began with jurisdiction over cases arising under federal
law in 1950, subsequent federal laws expanded its jurisdiction to
include that of a district court of the United States, including
diversity jurisdiction, and that of a bankruptcy court.
Appeals process: The process for appealing decisions would be the
same as in other Article IV district courts. Appeals would first go to
the U.S. Court of Appeals for the Ninth Circuit and then to the U.S.
Supreme Court.
Judges: The judge would be appointed in the same manner as federal
judges for the other insular areas, who are appointed by the President,
with the advice and consent of the Senate, for 10-year terms.
Associated Executive and Judicial Branch staff: Probation and
Pretrial services staff, U.S. Attorney and staff, and U.S. Marshals
staff would establish stand-alone offices. Defender services could be
provided, at least initially, through the Federal Public Defender
Organization personnel based in the District of Hawaii and/or Criminal
Justice Act (CJA) panel attorneys. [Footnote 62] CJA panel attorneys
are designated or approved by the court to furnish legal representation
for those defendants who are financially unable to obtain counsel.
[Footnote 63]
Physical facilities: Under this scenario, a new courthouse facility
would need to be built to provide the courtroom, judge‘s chambers,
office space for federal court staff, and a holding area for detaining
defendants during trials. It is not clear if a detention facility for
detaining defendants pretrial and presentencing would need to be built
or if a portion of the existing local prison could be upgraded to meet
federal standards. According to the U.S. Marshals Service, the current
local prison in American Samoa does not meet federal detention
standards.
Operational issues: Several judicial officials and experts we met
with stated that this scenario is the most straightforward option
because it would be modeled after the federal courts in other insular
areas, which would place residents of American Samoa in a position
that is equitable with residents of the other insular areas. Other
judicial officials we met with stated, however, that this is
potentially the most costly scenario of the three, given the relatively
small caseload expected. However, the Pacific Islands Committee
[Footnote 64] stated in its 1995 Supplemental Report that new federal
courts historically have drawn business as soon as they open their
doors, and it is likely that growth in the court caseload would result.
[Footnote 65]
Scenario 2: Establishing a District Court in American Samoa That Would
Be a Division of the District of Hawaii:
This scenario would create a new division of American Samoa within the
District of Hawaii.[Footnote 66] There are potentially several
arrangements which could be devised to handle court matters. Since the
U.S. District Court of Hawaii is an Article III court, a judge assigned
to a Division of American Samoa would also presumably be an Article III
judge, which would differ from the Article IV courts in CNMI, Guam, and
USVI. Another possibility would be to assign an Article IV judge to
American Samoa. Regardless of the arrangement, a clerk of the court and
support staff would be needed in American Samoa to handle the work of
the court.
Jurisdiction: As with scenario 1, the statute creating the division in
the District of Hawaii would specify the court's jurisdiction. It could
be limited to criminal cases only, or may or may not include bankruptcy,
federal question, and diversity jurisdiction.
Appeals process: The process for appealing decisions would be the
same as the District of Hawaii, to the U.S. Court of Appeals for the
Ninth Circuit and then to the U.S. Supreme Court.
Judges: An Article III or Article IV judge would be appointed by the
President, with the advice and consent of the Senate, and serve either a
life term with good behavior (Article III) or a 10-year term (Article
IV) as is true in Guam, CNMI, and USVI.
Associated Executive and Judicial Branch staff: Probation and Pretrial
services, U.S. Attorney, and U.S. Marshals could provide the minimum
staff required in American Samoa and share support functions with their
offices in the District of Hawaii. Defender services could be provided,
at least initially, through Federal Public Defender Organization
personnel based in the U.S. District Court of Hawaii and/or CJA panel
attorneys.
Physical facilities: As with scenario 1, a new courthouse facility
would need to be built to provide the courtroom, judge‘s chambers,
office space for federal court staff, and a holding area for detaining
defendants during trials. Also, similar to scenario 1, it is unclear
whether a new detention facility would need to be built or if a portion
of the existing local prison could be upgraded to meet federal
standards.
Operational issues: Some federal and judicial officials we interviewed
told us that this scenario may be less costly than scenario 1 because
as a division of the District of Hawaii, some administrative functions
and resources may be able to be shared with Hawaii. Other federal and
judicial officials told us that costs for staff to travel between
American Samoa and Hawaii and additional supervisory staff which may be
needed in Hawaii may make scenario 2 just as costly, or possibly more
costly than scenario 1. Although this scenario would allow for trials
to be held in American Samoa, there may be issues to be resolved
concerning the status of any judges that would serve in the court and
the degree to which resources would be shared with the U.S. District
Court of Hawaii. For example, some judicial officials have raised
questions of equity about the possibility of Article IV judges being
assigned to federal courts in CNMI, Guam, and USVI while an Article III
judge was assigned to the federal court in American Samoa.
Scenario 3: Expanding the Federal Jurisdiction of the High Court of
American Samoa:
This scenario would expand the federal jurisdiction of the High Court of
American Samoa rather than establish a new federal court. This would be
a unique structure, as local courts typically do not exercise federal
criminal jurisdiction. As a result, a number of unresolved issues
associated with this scenario would have to be resolved should this
scenario be pursued.
Jurisdiction: The jurisdiction of the High Court would be expanded to
include additional federal matters, such as federal criminal
jurisdiction. This would be a unique structure, as local courts
generally do not exercise federal criminal jurisdiction. While there is
a history of federal courts in insular areas with jurisdiction over
local offenses, there has never been the reverse”a local court with
jurisdiction over both local and federal offenses.
Appeals process: The appellate process for federal matters under such a
scenario is unclear. The current process for the limited federal cases
handled by the High Court has five levels of appellate review: (1) to
the Appellate Division of the High Court, (2) to the Secretary of the
Interior, (3) to the U.S. District Court for the District of Columbia,
(4) to the U.S. Court of Appeals for the District of Columbia Circuit,
and (5) to the U.S. Supreme Court. Whether the appeals process would
match that of the federal courts in CNMI, Guam, and USVI would have
to be determined.
Judges: The Chief Justice of the High Court stated that the High Court
may need an additional judge to handle the increased caseload.
Alternatively, in our discussions, Pacific Island Committee members
with whom we met suggested that the Secretary of the Interior or the
Chief Judge of the Ninth Circuit could designate active and senior
district judges within the Ninth Circuit to handle any court workload in
American Samoa. They point out that they designated judges from the
Ninth Circuit to the District of Guam for over 2 years, when there was
an extended judge vacancy. Further, the Ninth Circuit has designated
local judges to handle federal matters, when necessary. For example,
the judges from the Districts of CNMI and Guam routinely use local
Superior Court or Supreme Court judges to handle federal court matters
and trials, in cases when they must recuse themselves from a court
matter or in the case of a planned or emergency absence.
However, Pacific Island Committee members with whom we met stated that
presumably federal judges would only handle federal court matters. It
was unclear whether High Court justices would handle federal and local
court matters and what implications might arise from such a structure.
Associated Executive and Judicial Branch staff: It is unclear whether
Probation and Pretrial services, U.S. Attorneys, and U.S. Marshals
would be established, since these staff are only provided to a district
court. Similarly, the authority under the CJA to authorize a federal
defender organization to provide representation or to compensate panel
attorneys is vested in the district court. The Department of Justice
would need to determine whether it would establish a federal prosecutor
position in American Samoa to prosecute certain federal cases in the
High Court. There are local Public Defender and Attorney General
Offices in American Samoa and the extent to which they could assist
with cases is unknown. According to the Chief Justice of the High
Court, it is unlikely that the existing probation and pretrial or court
security staff would be able to handle an increased workload. Currently
the High Court has three probation officers who work part-time as
translators for the court, and two marshals, one for each of the High
Court‘s two courtrooms.
Physical facilities: The extent to which federal detention and
courtroom security requirements would apply is uncertain. Until this
issue is resolved, activities could possibly continue in existing
courthouse and detention facilities. However, the High Court justices
and clerk said that current courtroom facilities are already used to
capacity without the added caseload that federal jurisdiction could
bring.
Operational issues: This scenario may be the lowest-cost scenario and
may alleviate concerns about the threat to the matai and land tenure
systems. It is potentially the lowest-cost scenario because some of the
existing court facilities and staff may be used. Some leaders within
the American Samoa government believe this is the best option and
supporters of this scenario note that the High Court has a history of
respecting American Samoa traditions and so they have fewer concerns
that issues of matai titles and land tenure would be in jeopardy.
At the same time, as it is unprecedented to give federal criminal
jurisdiction to a local court, this scenario could face the most
challenges of the three, according to federal judges and other judicial
officials. Legal experts with whom we met told us that, because this is
a unique arrangement, the High Court and U.S. judiciary may be faced
with having to constantly solve unique problems and develop solutions
on a regular basis. For example, judicial officials stated that the High
Court Justices would have to be cognizant of their roles and
responsibilities when shifting from the duties of a local High Court
Justice to the duties of a federal judge. A judicial official also noted
that the High Court justices may have to become familiar with federal
sentencing guidelines, which require a considerable amount of training.
In the August 1995 hearing, the DOJ Deputy Assistant Attorney General
stated that vesting federal jurisdiction in the High Court runs counter
to well-established legislative policy that district courts should have
exclusive jurisdiction over certain types of proceedings to which the
United States is a party. For example, federal law states that U.S.
district courts have exclusive jurisdiction over all offenses against
the criminal laws of the United States [Footnote 67] and with respect
to the collection of debts owed to the United States, provides for an
exclusive debt collection procedure in the courts created by Congress.
[Footnote 68] Similarly, federal regulatory statutes often provide for
enforcement and judicial review in the federal courts.
Another issue to be resolved is the appointment process for justices of
the High Court. While none of the judicial officials with whom we met
had concerns about the independence of the current justices, some
expressed concerns about the differences in the way judges are
appointed”while federal judges are generally appointed by the
President, the justices in American Samoa are appointed by the
Secretary of the Interior. As such, they suggested that the justices in
American Samoa may not be subject to the same vetting process and
protected by the same constitutional and statutory provisions”such
as salary guarantees”as are district judges.
Potential Cost Elements Subject to Considerable Uncertainties:
The potential cost elements for establishing a federal court in American
Samoa include agency rental costs, personnel costs, and operational
costs; most of which would be funded by congressional appropriations. We
collected likely cost elements, to the extent possible, for scenario 1
and 2 from the various federal agencies that would be involved in
establishing a federal court in American Samoa. We did not collect cost
data for scenario 3 because of its unique judicial arrangement and
because there was no comparable existing federal court structure upon
which to estimate costs. For scenario 1 and 2, AOUSC officials told us
that a new courthouse would need to be built. GSA officials told us
that court construction and agency rental costs would be comparatively
high”about $80 to $90 per square foot for a new courthouse, compared to
typical federal government rental charges for office space in American
Samoa of around $45 to $50 per square foot in 2007. Funding sources for
the judiciary and DOJ derive primarily from direct congressional
appropriations and funding for a federal courthouse in American Samoa
would likely be funded similarly. We found the data for scenarios 1 and
2 sufficiently reliable to provide rough estimates of the possible
future costs for these scenarios for establishing a federal court in
American Samoa, with limitations as noted.
Data Limitations and Assumptions:
Because the three court scenarios presented are hypothetical, and the
exact details of the jurisdiction, staffing, and physical facilities
would have to be determined when, and if, a specific scenario were
adopted, the estimated costs cannot be aggregated to obtain a precise
estimate of the total costs for the scenarios. Rather, the cost data
should be viewed as general approximations of the types and magnitude
of costs that could be incurred. Recognizing this uncertainty, we
collected likely cost elements for each scenario, to the extent
possible, from federal agencies that would be involved in establishing
a federal court in American Samoa”GSA for construction and rental
costs, AOUSC for judicial branch costs, and EOUSA and USMS for
executive branch costs.
We collected cost data for scenarios 1 and 2. According to AOUSC, under
each of these scenarios a new courthouse would need to be built. We did
not estimate costs for bankruptcy courts for either scenario, since, if
the district court were to hear bankruptcy cases, it is likely that the
district court judge would hear both federal matters and bankruptcy
cases, similar to other district judges in CNMI, Guam, and USVI. We did
not collect cost data for scenario 3 because, as stated earlier, it
would be a unique judicial arrangement and there is no comparable
existing federal court structure upon which to estimate costs. The cost
data presented cannot be used for budget purposes and an analysis of
cost effectiveness would be of limited value given that the data are
fragmented. The controversy surrounding whether and how to create a
venue for adjudicating matters of federal law in American Samoa is not
principally focused on an analysis of cost effectiveness, but other
policy considerations, such as equity, justice, and cultural
preservation. Thus, policy considerations, other than cost
effectiveness, are more likely to be the basis for deciding whether and
how to establish a court with federal jurisdiction in American Samoa.
For a detailed description of the scope and methodology, including the
caveats and limitations of the cost data, see appendix I.
Court Construction and Agency Rental Costs Would be Comparatively
High:
Due to limitations on existing buildings and potential land
restrictions” about 90 percent of American Samoan land is communally
owned”GSA officials told us that a new courthouse in American Samoa
would likely use a build-to-suit lease construction arrangement rather
than government-owned construction and that construction and consequent
rental costs would be comparatively high. GSA provided initial
construction and rental costs for the hypothetical courthouse in
American Samoa, based on a floor plan submitted for a proposed new one-
judge courthouse in CNMI. According to GSA officials, there are no
buildings in American Samoa suitable for use as a federal courthouse.
Further, officials from the High Court of American Samoa told us that
its two-courtroom High Court building and its one-courtroom local
district court building are frequently used to capacity.
Under build-to-lease construction, the government contracts with a
private developer to build the courthouse and, in this case, GSA leases
the completed building based on the amortization of a 20-year
construction loan. GSA would then rent portions of the building to the
tenant federal agencies, such as AOUSC, EOUSA, and USMS. GSA officials
gave very preliminary rent estimates of $80 to $90 per square foot,
[Footnote 69] based on requirements similar to an existing build-to-
suit lease prospectus for a new courthouse in CNMI. [Footnote 70]
Further, GSA officials told us that federal agencies would be
responsible for up-front payments for the particular courthouse
governmental features, such as holding cells, and blast protection for
security. [Footnote 71] GSA officials indicate that the accuracy of the
initial American Samoa court construction may vary by as much as -20 to
+80 percent, thereby influencing rental costs. The GSA Assistant
Regional Administrator for Region IX Pacific Rim stated that there are
many factors that could affect construction costs and, therefore, the
tenant agencies‘ rental costs. For example, any cost increases
associated with the condition of an unknown site or escalation in
construction costs beyond what has been anticipated will have a direct
and proportional impact on the rental costs, as well as the up-front
costs that agencies may be required to pay.
Preliminary rental costs of $80 to $90 per square foot for a new
courthouse with specialized building requirements would exceed typical
federal government rental charges for offices in American Samoa at the
prevailing market rates of $45 to $50 per rentable square foot in 2007.
Judicial Branch Costs Include Judges, Court Staff, and Federal
Defender:
For scenarios 1 and 2, AOUSC officials provided information related to
four types of costs:
(1) district court costs;
(2) probation and pretrial services costs, and;
(3) federal defender office costs.
Scenario 1 Costs:
District court costs: For yearly district court costs under scenario 1,
AOUSC provided us with district court cost estimates of about $1.5
million for personnel costs, including the costs of one district court
judge and the full-time equivalent salaries of 2 law clerks and 1
secretary, 11 district clerk‘s office staff, 1 pro se law clerk,
[Footnote 72] 1 court reporter, and recruitment and training costs.
[Footnote 73] Operational costs were estimated at $0.1 million, which
includes judge‘s law books, stationery, forms, new case assignment and
jury management systems, travel, postage and delivery charges, and
consumables for both the first year and recurring years. Information
technology and other equipment costs were estimated at $0.1 million.
Space and facilities costs ranged between $2.6 million to $2.9 million
and include necessary alterations and renovations, signage, furnishings,
furniture, and estimated GSA rental costs. [Footnote 74]
Probation and pretrial services costs: For the yearly cost of probation
and pretrial services, AOUSC provided us with personnel and benefits
costs estimated at $0.3 million, which includes the full-time equivalent
salaries of one Chief Probation Officer, one probation officer, and one
administrative support staff. Operational costs were estimated at $0.1
million, including travel, training, transportation, postage, printing,
maintenance, drug dependent offender testing and aftercare, pretrial
drug testing, mental health treatment services, monitoring services, DNA
testing, notices/advertising, contractual services, supplies, awards,
firearms, and protective equipment. Information technology and other
equipment costs were estimated at about $16,000 (i.e., equipment,
maintenance, purchase of copy equipment, computer training, phone
communications, supplies, computers, phones, data communications
equipment, printers, scanner, and computer software). [Footnote 75]
Space and facilities costs were estimated at $0.4 million to $0.5
million, which includes furniture and fixture purchases, as well as GSA
rental costs. [Footnote 76]
Federal Defender costs: AOUSC officials did not estimate costs for a
Federal Defender‘s office, since it is unlikely that the hypothetical
court in American Samoa would, at least initially, reach the minimum 200
appointments per year required to authorize a Federal Defender
Organization or the number of cases that would warrant the creation of a
Federal Public Defender Organization headquartered in the District of
Hawaii. The court in American Samoa, as an adjacent district, might be
able to share the Federal Public Defender Organization staff based in
Hawaii, or the court could rely solely on a CJA panel of attorneys.
[Footnote 77] The costs to the Federal Public Defender Organization in
Hawaii and the costs of reimbursing CJA attorneys would vary based on
the caseload of the court.
Scenario 2 Costs:
District Court costs: According to AOUSC, the estimated district court
costs for scenario 2 could be similar to the estimated costs for
scenario 1. AOUSC officials indicated that there may not be a need for
a clerk, financial/procurement officer, jury clerk, or information
technology specialist in American Samoa under scenario 2, as those
functions may be handled out of the District of Hawaii office, leading
to some possible reductions in personnel salaries. However, some
judicial officials stated that any decrease in staff costs for this
scenario may be offset by increased costs for travel between Hawaii and
American Samoa. GSA rental costs would be comparable to scenario 1.
Probation and pretrial services costs: Probation and Pretrial Services
officials did not provide any cost differences between scenarios 1 and
2.
Federal Defender costs: Either the Office of the Federal Public
Defender in Hawaii or a CJA panel may provide defender services in
American Samoa under both situations, thereby also not leading to any
significant change in cost estimates between scenarios 1 and 2.
Executive Branch Costs Include Federal Prosecution and Security Costs:
For the Department of Justice, an EOUSA official provided U.S.
Attorney‘s Office cost estimates and a USMS official provided security
cost estimates for both scenario 1 and scenario 2.
U.S. Attorney‘s Office Costs:
Scenario 1 costs: EOUSA officials calculated the cost of a U.S.
Attorney‘s office based on a partial first year and a complete second
year. Modular personnel costs are $0.6 million for the first year and
$1.0 million for the second year, which includes one U.S. Attorney,
three attorneys, and two support staff. Operational costs ranged from
$0.5 million to $0.9 million, including travel and transportation,
utilities, advisory and assistance services, printing and reproduction,
and supplies and materials. [Footnote 78] Information technology costs
were estimated at $0.1 million for equipment and the operation and
maintenance of equipment. Space and facilities costs range between $1.3
million and $1.4 million and include the operation and maintenance of
facilities and rent to GSA [Footnote 79] and others.
Scenario 2 costs: EOUSA officials calculated U.S. Attorney‘s office
personnel costs for a partial first year and a complete second year.
Modular personnel costs rose from $0.6 million in the first year to $1.0
million throughout the second year, which includes four attorneys and
two support staff. Operational costs remain consistent at $0.2 million
for both the first and second years, reflecting travel and
transportation, litigation costs, supplies, and other miscellaneous
costs. Information technology and equipment costs were estimated to be
approximately $0.1 million for both years. Yearly rental rates may also
be comparable in the initial years. Personnel and operations costs for
scenario 2 were estimated to be less than for scenario 1 because
scenario 2 does not include a separate U.S. Attorney for American
Samoa. Rather, the costs for scenario 2 are based on the estimated
costs and personnel the U.S. Attorney for the District of Hawaii would
need to support cases that arise in American Samoa.
U.S. Marshals Service Costs:
Scenario 1 costs: USMS officials estimated that personnel costs were
$0.8 million, based on fiscal year 2008 salaries, benefits, and law
enforcement availability pay for all supervisory (one U.S. Marshal, one
Chief Deputy, one Judicial Security Inspector) and nonsupervisory (two
Deputy Marshals and one administrative) personnel that would be
needed. [Footnote 80] Operational costs were estimated to be $0.8
million based on fiscal year 2008 standard, nonpersonnel costs for
district operational and administrative positions (including vehicles,
weapons, protective gear, communications equipment, and operational
travel costs), and $0.7 million for defendant transport (including
guard wages, airfare, per diem meals, and lodging). [Footnote 81]
Information technology and equipment costs were estimated at $0.6
million for the installation of a computer network and telephone system
to all USMS offices, and $0.2 million for yearly service on the wide-
area network to American Samoa. [Footnote 82] Space and facilities
costs were estimated between $1.1 million and $1.3 million for rent,
[Footnote 83] plus variable defendant detention facility housing costs.
[Footnote 84]
Scenario 2 costs: With regard to scenario 2, USMS officials estimated
that yearly personnel costs would be $0.5 million. Since a U.S. Marshal,
Chief Deputy, and Judicial Security Officer would be shared with the
USMS in Hawaii and not be located in American Samoa, personnel costs
for this scenario are estimated to be approximately $0.4 million less
than scenario 1. Operational costs (reflecting the standard,
nonpersonnel costs for operational and administrative positions) under
scenario 2 were estimated to be $0.5 million, or about $0.3 million
less than scenario 1. The operational cost differential between the two
scenarios with respect to prisoner transport is unclear. [Footnote 85]
While the USMS did not specifically address information technology
costs and other equipment costs with respect to scenario 2, the same
types of costs in scenario 1 would be involved if a computer network
and telephone system would need to be established. With respect to
space and facilities, if the USMS were housed in the same court
building as used for scenario 1, rental costs should be comparable
(between $1.1 million and $1.3 million.) If, however, under scenario 2,
the USMS were housed in an office building rather than a courthouse,
then the resulting cost may be lower than scenario 1. Additionally, to
the extent that defendants are detained in the same facilities as in
scenario 1 (e.g., the Bureau of Prisons detention facility in Hawaii),
detention facility costs should be comparable.
Potential Funding Sources Associated with Implementing the Different
Scenarios:
Funding for the federal judiciary and DOJ agencies derives primarily
from direct congressional appropriations to each agency and funding for
a federal court in American Samoa would likely be funded similarly. In
fiscal year 2006, about 94 percent of the total court salary and expense
obligations were obtained through direct judiciary funding. The
remaining 6 percent was obtained through offsetting collections, such
as fees. In that same year, about 95 percent of the total Probation and
Pretrial Services obligations were obtained through direct
congressional appropriations.
With regard to DOJ, in fiscal year 2006, 96 percent of the U.S.
Attorneys' obligations to support district court activities were
obtained through direct congressional appropriations and the remaining
4 percent were obtained through other sources, such as asset
forfeitures. In fiscal year 2008, USMS used direct congressional
appropriations to cover the expenses for staff hiring, payroll,
relocation, personnel infrastructure, rent, and utilities. The Office
of the Federal Detention Trustee funds 100 percent of prisoner
detention, meals, medical care, and transportation. AOUSC funds 100
percent of the court security officers, magnetometers, and security
measures at courthouse entrances.
Agency Comments and Our Evaluation:
In May 2008, we requested comments on a draft of this report from the
Administrative Office of the U.S. Courts, the Department of the
Interior, the Department of Justice, the General Services
Administration, and officials representing the executive, legislative,
and judicial branches of the government of American Samoa. The
Administrative Office of the U.S. Courts and the Department of Justice
provided technical comments, which we have incorporated into the report
as appropriate. For the Department of Justice, we received comments
from the Bureau of Prisons, the Federal Bureau of Investigation, and
the U.S Marshals Service. The Bureau of Prisons recommended that the
current judicial system in American Samoa be improved”although no
specific scenario was endorsed”due to concerns regarding public
corruption, the crime rate, and the cost and inconvenience involved in
transporting officials, witnesses, and prisoners to courts so far away
from American Samoa. The Honolulu Division of the Federal Bureau of
Investigation recommended that the District of Hawaii be provided
additional resources and designated as the proper venue for federal
cases arising in American Samoa, given the small pool of jurors,
logistical challenges of permanently stationing federal personnel in
American Samoa, and the lack of institutional infrastructure to sustain
a federal district court in American Samoa. The U.S. Marshals Service
stated it supported scenario 1 and added that that scenario 2 would
place a strain on its current prisoner transportation system and be
extremely difficult for the Hawaii district office to staff due to the
lack of infrastructure and detention space. In addition to the
technical comments received, the Administrative Office of the U.S.
Courts, the Department of the Interior, and the Office of the Governor
of American Samoa provided official letters for inclusion in the
report. These letters can be seen in appendixes II, III, and IV,
respectively.
We are sending copies of this report to the Attorney General and
Secretary of the Interior, Director of the Administrative Office of the
U.S. Courts, Administrator of the General Services Administration,
Governor of American Samoa, President of the Senate and Speaker of the
House of the Legislature of American Samoa, Chief Justice of the High
Court of American Samoa, and interested congressional committees. The
report will be available on the GAO Web site at [hyperlink,
http://gao.gov].
If you or your staff have any questions regarding this report, please
contact me at 202-512-8777 or jenkinswo@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. Staff acknowledgements are listed in
appendix IX.
Signed by:
William O. Jenkins, Jr.
Director:
Homeland Security and Justice Issues:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
Objectives, Scope and Methodology:
We examined the unique judicial structure of American Samoa and
identified issues associated with establishing a federal court in
American Samoa. Specifically, the objectives of our review were to
discuss:
(1) the current system and structure for adjudicating matters of federal
law arising in American Samoa and how it compares to those in the
Commonwealth of the Northern Mariana Islands (CNMI), Guam, and the U.S.
Virgin Islands (USVI);
(2) the reasons that have been offered for or against changing the
current system and structure for adjudicating matters of federal law in
American Samoa;
(3) the description of different scenarios for establishing a federal
court in American Samoa or expanding the federal jurisdiction of the
High Court of American Samoa if a change to the current system were
made, if a change to the current system were made, and the
identification of issues associated with each scenario; and;
(4) the potential cost elements and funding sources associated with
implementing the different scenarios for establishing a federal court in
American Samoa.
To address these objectives, we reviewed historical documents,
congressional testimonies, law review articles, previous studies, and
cost data from and conducted interviews with U.S. government officials
from the Administrative Office of the U.S. Courts (AOUSC), including the
Federal Judicial Center, Office of Defender Services, and Probation and
Pretrial Services; headquarters and field officials from the Department
of Interior‘s (DOI) Office of Insular Affairs and Inspector General;
officials from Department of Justice‘s (DOJ) Civil Rights Division,
Criminal Division, Executive Office for U.S. Attorneys (EOUSA), Bureau
of Prisons, and headquarters and field officials from the U.S. Marshal
Service (USMS) and Federal Bureau of Investigation (FBI); headquarters
and field officials from the General Services Administration (GSA);
officials from the U.S. Attorneys offices for CNMI, Guam, Hawaii, and
USVI; headquarters and field officials from the Inspector General
offices of the Departments of Agriculture, Education, Homeland
Security, Transportation, and Health and Human Services; officials and
judges from the Ninth Circuit; and officials and judges from the U.S.
District Court of Hawaii, the District Court for the Northern Mariana
Islands, the District Court of Guam, and the District Court of the
Virgin Islands.
Further, we reviewed historical documents, legal decisions, and court
statistical data. We also conducted interviews with government officials
from the executive, judicial, and legislative branches of government and
residents of American Samoa, including the Governor‘s Office, High Court
of American Samoa, Fono, Office of Samoan Affairs, Controller‘s Office,
Office of Territorial and International Criminal Intelligence and Drug
Enforcement, Attorney General‘s Office, and Public Defender‘s Office.
Also, we reviewed relevant legal review articles and position papers and
conducted interviews with recognized legal experts on territorial
governance issues. These experts were identified through our literature
review and based on their having published work in the area of
territorial judicial systems, and through our interviews with and
information collected from federal government and territorial
government officials. The experts contacted were not intended to be
representative of all expert opinion on American Samoa judicial issues,
but were contacted because they could provide insights on territorial
governance issues in general.
We conducted this performance audit from April 2007 to June 2008 in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.
Group Discussions and Public Comments:
To obtain insight regarding public views related to objectives 2 and 3,
during our October 2007 trip to American Samoa we conducted an open
forum of college students and the general public and held group
discussions with members of the American Samoa Bar Association,
American Samoa Chamber of Commerce, and Common Cause of American Samoa.
We also established an e-mail account (i.e., americansamoa@gao.gov) and
received 62 comments from October 2007 to January 2008 regarding the
general public‘s views on possible scenarios for establishing a federal
court in American Samoa or expanding the federal jurisdiction of the
High Court of American Samoa. At all discussions and interviews in
American Samoa we distributed flyers (see fig. 3) which solicited views
to the e-mail account regarding the possible scenarios for establishing
a federal court in American Samoa or expanding the federal jurisdiction
of the High Court of American Samoa.
Figure 3: Flyer Distributed in American Samoa:
[See PDF for image]
The contents of the flyer are as follows:
Send us an email...AmericanSamoa@gao.gov:
The Government Accountability Office (GAO) has begun work on an
engagement for the purpose of providing our congressional requesters
with (1) an historical context of federal jurisdiction issues regarding
American Samoa; and (2) information on the key options for creating a
federal court system to cover American Samoa, and the benefits and
challenges of each of the options. This engagement is being performed
in response to a request by members of the U.S. House of
Representatives, Committee on Natural Resources”Nick J. Rahall II,
Chairman; Don Young, Ranking Member; and Delegate Eni F.H.
Faleomavaega. As part of our work, we are soliciting the views of the
residents of American Samoa regarding options for addressing concerns
related to the current organization and jurisdiction of the judiciary
in American Samoa as it relates to the handling of federal cases.
Our report will enumerate the benefits and challenges of different
options for bringing federal jurisdiction to American Samoa but will
not include recommendations. Rather, we will leave it up to Congress to
determine what actions, if any, should be taken based on our findings.
The options we are addressing are:
(1) establishing a new district court in American Samoa, similar to
those in Guam and the Northern Mariana Islands, with a new courthouse,
a resident judge, U.S. Attorney, U.S. Marshal, and related support
staff;
(2) expanding the District of Hawaii to include a separate division in
American Samoa, with a new courthouse, a resident judge, an Assistant
U.S. Attorney, Deputy U.S. Marshals, and related support staff;
(3) expanding the jurisdiction of the High Court of American Samoa to
include federal matters; and;
(4) leaving the current judicial structure and system in American Samoa
unchanged.
Send us your thoughts on these specific options or the issue in general
to AmericanSamoa@gao.gov.
About GAO: GAO supports Congress in meeting its constitutional
responsibilities and helps improve the performance and ensure the
accountability of the federal government for the benefit of the
American people. GAO's mission is to provide objective, fair, balanced,
and fact--based analyses for the U.S. Congress. GAO‘s work includes
oversight of federal programs; insight into ways to make government
more efficient, effective, ethical and equitable; and foresight of long-
term trends and challenges. For more information see www.gao.gov.
Source: GAO.
[End of figure]
Emails received were included in our analysis, except those which did
not address the issue of a federal court or only posed questions without
further elaboration. We did not independently evaluate the merits of the
respondents‘ comments. However, we did group and list the comments by
topic. With some exceptions, such as responses that were irrelevant or
unclear, substantially all of the comments received were categorized. To
ensure inclusiveness and avoid subjectivity in presenting the comments,
we did not eliminate any comments, even though the comments perhaps
were the same as (or very similar to) comments made by another
respondent.
The open forum, group discussions, and e-mails were designed to provide
broader insight regarding American Samoan public views regarding the
establishment of a federal court. Because these comments are based on a
nongeneralizable sample of individuals, they cannot be used to make
inferences about the American Samoan population overall. While these
views cannot be generalized to the population of American Samoa as a
whole, they provided us with a better understanding of the range of
issues that were important to the members of the local community.
Potential Cost Elements:
To address objective 4 on potential cost estimates establishing a
federal court in American Samoa, we obtained estimated cost information
for scenarios 1 and 2 from federal agencies that would be involved in
establishing a federal court. This included obtaining cost information
related to three areas: (1) court construction and rent from GSA, (2)
judicial branch agency costs from AOUSC, and (3) executive branch
agency costs from EOUSA and USMS. To the extent possible, for scenarios
1 and 2 we obtained agency estimates of the relevant cost elements,
including build-to-lease construction costs, agency rental fees,
salaries and benefits, operational costs, information technology and
equipment costs, and space and facility costs. Since the court scenarios
were hypothetical and the exact details of the jurisdiction, staffing,
and physical facilities are not known, the estimated costs cannot be
aggregated to obtain a precise estimate of the total costs for the
scenarios. Further, we did not ask GSA, AOUSC, EOUSA, or USMS to
estimate the costs of scenario 3 since this would be a unique structure
and the federal agencies would have no existing federal structure upon
which to estimate costs. To assess the reliability of the estimated
costs for scenarios 1 and 2, we talked with agency officials
knowledgeable about how the estimates were developed and reviewed
relevant documentation, such as building surveys and agency budget
documents. We found the data for scenarios 1 and 2 sufficiently
reliable to provide estimates of the possible future costs for these
scenarios for establishing a federal court in American Samoa, with
limitations as noted below.
Court Construction and Agency Rental Cost Estimates Limitations:
Based on preliminary estimates and on hypothetical requirements similar
to a proposed new courthouse in CNMI, GSA officials stated that the
rough estimate of construction costs would be approximately $56 million
and that the resulting agency rental fees based on the amortization of
the construction loan might range from $80 to 90 per square foot, given
a projected court construction award date of March 1, 2010. [Footnote
86] GSA and other agencies officials told us that these initial
estimated costs may deviate widely from final construction costs for
several reasons:
(1) more detailed cost estimates are not available until later stages of
construction;
(2) the condition of the undetermined site is unknown;
(3) prices in the construction market may escalate beyond what has been
anticipated;
(4) the cost adjustment index used for American Samoa, which accounts
for 29 percent of the projected construction costs, is almost 10 years
old and relied on limited expert opinion; and;
(5) American Samoa lacks local skilled labor and finished materials and
the shipping and commodity costs at the time of construction are
unknown. These factors would influence final construction costs, and
thus agency rental costs.
Judicial Branch Cost Estimate Limitations:
(1) Salaries and operational expenses were based on costs from fiscal
years 2007 and 2008 data and would need to be reevaluated at the time
a courthouse was projected to be built for inflationary and other cost
escalation factors.
(2) While CNMI and Guam court costs were used to estimate some court
costs, the actual cost variation between American Samoa and the other
territorial costs is unknown.
3) Because reliable estimates of the number of civil and criminal cases
were not known, AOUSC officials based their personnel and benefits and
operational and information technology cost estimates for probation and
pretrial services on a percentage of the actual costs obligated in 2007
from the Probation and Pretrial Services Office in Guam, which is a
consolidated operation covering both district courts located in CNMI
and Guam. AOUSC officials determined the percentage of resources used
to support the District Court for the Northern Mariana Islands as a
basis for the estimate of costs for an office in American Samoa.
(4) Rental costs were based on GSA space requirements estimated for the
proposed courthouse in CNMI.
Executive Branch Cost Estimate Limitations:
U.S. Attorney Cost Estimate Limitations:
(1) Because reliable estimates of the number of criminal and civil cases
were not known, the U.S. Attorney‘s cost data for scenario 1
nonpersonnel costs were based on actual fiscal year 2005 and fiscal year
2006 expenditure and allotment obligations for the U.S. Attorney‘s
Office for the District of Guam. Personnel costs were based on modular
costs provided in the fiscal year 2008 President‘s budget request to
Congress.
(2) For scenario 2, first year modular personnel costs represent partial
year costs, whereas second year modular costs represent full-year
costs.
(3) Rental costs for the U.S. Attorney‘s Office were based on GSA space
requirements estimated for the U.S. Attorney‘s Office in the proposed
CNMI courthouse.
USMS Cost Estimate Limitations:
(1) USMS officials assumed that defendant or prisoner transportation
costs for a district court in American Samoa are unknown; however, the
officials estimated that it would be about the same as costs in the
District Court of the Northern Mariana Islands for fiscal year 2007”
approximately 65 prisoners received per year and 104 court productions
per year from federal detention facilities in Hawaii to American Samoa.
If the workload in American Samoa is less or more, then estimated costs
will be affected accordingly.
(2) USMS officials assumed there would be no local detention space to
house defendants or prisoners, so air transportation costs to federal
detention facilities were included. Commercial airline rates were used
since the Justice Prisoner and Alien Transportation System does not
extend its flights to American Samoa. USMS officials said that
commercial airline regulations and costs could not be specified under
all defendant or prisoner transport circumstances.
[End of section]
Appendix II: Comments from the Administrative Office of the United
States Courts:
Administrative Office Of The United States Courts:
A Tradition Of Service To The Federal Judiciary:
James C. Duff, Director:
Washington, D.C. 20544:
June 4, 2008:
Mr. William O. Jenkins, Jr.
Director, Homeland Security and Justice:
United States Government Accountability Office:
441 G Street, N.W.
Washington, D.C. 20548:
Dear Mr. Jenkins:
Thank you for the opportunity to review the draft report entitled
American Samoa: Issues Associated with Potential Changes to the Current
System for Adjudicating Matters of Federal Law (GAO-08-655). The report
is informative and provides useful background information about the
U.S. territory of American Samoa and its judicial system.
The report describes three possible scenarios for change. The Judiciary
does not have a policy position about whether a change is needed to the
current structure, nor does the Judiciary have a policy position on
whether to expand further the jurisdiction of the High Court (scenario
3). [Footnote 87] If Congress were to consider establishing a federal
court in American Samoa, the Judiciary would not favor scenario 2,
which would create a division of the District of Hawaii in American
Samoa. Because of the great distance which separates American Samoa and
Hawaii, and the infrequency of flights (only one airline flying two
times per week), the U.S. District Court for the District of Hawaii and
the Pacific Islands Committee of the Judicial Council of the Ninth
Circuit have long held the view that this idea is both impracticable
and infeasible. If Congress determines to establish federal judicial
jurisdiction in the territory of American Samoa and to commit
sufficient resources to create such jurisdiction, the Judicial
Conference of the United States endorses the creation of an Article I
district court in American Samoa. [Footnote 88]
The report indicates that consideration of whether to expand the
federal jurisdiction of the High Court or establish a federal court in
American Samoa is likely to be focused on policy considerations about
equity, justice and cultural preservation, and not principally on cost
effectiveness. Nevertheless, the report's assessment of costs should be
helpful to Congress, especially because it indicates there would not be
significant cost differences between the first two scenarios. The
report shows there would be substantial costs associated with the
establishment of a federal court in American Samoa. It is helpful that
the report makes it clear that if Congress were to establish a federal
court or expand the federal jurisdiction of the High Court, Congress
must provide adequate resources.
Additional technical comments on the draft report will be provided. We
appreciate the cooperative efforts of your team in working with the
Judiciary on this complex assignment.
Sincerely,
Signed by:
James C. Duff:
Director:
[End of section]
Appendix III: Comments from the Department of the Interior:
The Associate Deputy Secretary Of The Interior:
Washington:
June 6, 2008:
Mr. William O. Jenkins Jr.
Director, Homeland Security and Justice:
United States Government Accountability Office:
441 G Street, NW:
Washington D.C. 20548:
Dear Mr. Jenkins:
Thank you for the opportunity to review and comment on the draft
Government Accountability Office Report entitled, "American Samoa:
Issues Associated with Potential Changes to the Current System for
Adjudicating Matters of Federal Law. (GAO-08-655). The Report provides
a clear comparison of the judicial system of American Samoa with the
judicial systems of the U.S. territories of Guam, the Virgin Islands,
and the Commonwealth of the Northern Mariana Islands.
Currently, the High Court of American Samoa presides over both local
issues and specific Federal issues. Because there is no Federal court
in American Samoa, matters of Federal law beyond the High Court's
authority must be adjudicated in either the Federal District Court of
Hawaii (Honolulu, Hawaii) or the Federal District Court of the District
of Columbia (Washington, D.C.). As noted in your report (page 20), the
Chief Justice in American Samoa has identified the challenges created
by the added workload and the piecemeal nature of the High Court's
Federal jurisdiction. Such challenges do not exist in the other U.S.
territories, because Guam, the Virgin Islands, and the Commonwealth of
the Northern Mariana Islands have both Federal and local court systems.
If Federal court jurisdiction in American Samoa were altered as
determined by the people of American Samoa and the U.S. Congress, the
Department would assist, as authorized, in the implementation of new
processes.
Thank you again for the opportunity to comment on the Report. If you
have any questions concerning the response, please communicate with
Nikolao Pula. Director of the Office of Insular Affairs, at (202) 208-
4736.
Sincerely,
Signed by:
James E. Cason:
[End of section]
Appendix IV: Comments from the Office of the Governor, American Samoa:
Office Of The Governor:
Togiola T.A. Tulafono, Governor:
Aitofele T.F. Sunia, Lieutenant Governor:
Executive Office Building-Third Floor:
P.O. Box 485:
Pago Pago, American Samoa 96799:
Telephone (684) 633-4116:
Facsimile: (684) 633-2269:
June 12, 2008:
Serial: 870:
William O. Jenkins Jr.
Director, Homeland Security & Justice:
United States Government Accountability Office:
Washington, DC 20548:
Dear Director Jenkins:
Thank you for affording us the opportunity to comment on the GAO report
regarding the possibility of setting up a federal court in American
Samoa. While this issue has been lingering on for some time, it is
evident from the report that the sentiment of the people of this
Territory regarding this issue remains unchanged.
We feel that the results of your fact-finding mission reflect a
relatively fair depiction of the general feeling and attitude towards
this issue. It is only our intention that we impress upon you again our
position that the Samoan land tenure and matai systems are very much
vital to the Samoan way of life, and so we must make sure that in our
efforts to provide federal justice we do not place it in danger. It is,
therefore, incumbent upon the GAO, as the investigative arm of the
United States Congress, that the challenges a federal court presents to
the Samoan way of life is presented in a clear and distinct manner to
the members of Congress, especially our serious concerns on the
potential impact it can have on our land tenure and matai system that
is the backbone of our Samoan culture and way of life.
Should you require further comments or information from our Office,
please feel free to contact us. Thank you for your assistance and work
in this matter and we apologize for the delay in responding.
Sincerely,
Signed by:
M. Talaimalo Uiagalelei:
Assistant Legal Counsel:
cc: Toetasi Tuiteleapaga, Chief Legal Counsel:
Christopher Conrad:
Amy Sheller:
[End of section]
Appendix V: History and Development of the Judicial System in American
Samoa:
Overview:
American Samoa consists of seven islands located about 2,600 miles
southwest of Hawaii and about 1,600 miles from New Zealand. American
Samoa Department of Commerce data indicate that in 2005, the population
of American Samoa was about 65,500. Ethnically, Samoans constitute the
vast majority of the population in American Samoa; about 31 percent of
the population was born in the independent nation of Samoa. [Footnote
89]
The Samoan islands were originally settled about 1000 B.C. by
Polynesians. [Footnote 90] During the nineteenth century, Germany,
Great Britain, and the United States developed commercial and military
pursuits in Samoa, and in 1899 the three powers divided their authority
over the islands, as Germany and Great Britain renounced all rights to
Tutuila and the other Samoan islands east of Longitude 171 degrees west
of Greenwich, and the United States renounced all rights to the western
islands.[Footnote 91] On February 19, 1900, President McKinley issued
an Executive Order placing control of the islands under the authority
of the Department of the Navy, and on the same day, the Secretary of
the Navy issued an order providing that the islands were established
into a Naval Station, to be known as the Naval Station, Tutuila, and to
be under the command of a Commandant.[Footnote 92] On April 17, 1900,
the high chiefs of Tutuila formally ceded the islands of Tutuila and
Aunuu to the United States, and on July 16, 1904, the high chief of
Manua ceded the islands of Tau, Olosega, Ofu, and Rose to the United
States.[Footnote 93] The Deeds of Cession were not formally accepted by
the United States until 1929 when Congress, by joint resolution,
accepted and ratified them and provided that ’until Congress shall
provide for the government of such islands, all civil, judicial, and
military powers shall be vested in such person or persons and shall be
exercised in such manner as the President of the United States shall
direct...“[Footnote 94] In 1951, President Truman transferred the
authority to govern American Samoa from the Secretary of the Navy to
the Secretary of the Interior.[Footnote 95] The Secretary of the
Interior subsequently issued an order to delimit the extent and nature
of the authority of the American Samoa government, which provided for a
Governor and an independent judicial branch.[Footnote 96] American
Samoa ratified a Constitution, which went into effect on October 17,
1960, and a revised Constitution went into effect on July 1,
1967.[Footnote 97] The Constitution provides for legislative, judicial,
and executive branches. The legislature, called the Fono, consists of a
House of Representatives and Senate. The House of Representatives is
composed of twenty members popularly elected from representative
districts.[Footnote 98] The Senate is composed of eighteen members,
each of whom must be matai and elected in accordance with Samoan custom
by the city councils of the counties that the member is to represent.
[Footnote 99] The 1967 Constitution provided that the executive branch
was to consist of a Governor, to be appointed by the Secretary of the
Interior.[Footnote 100] In 1977, the Secretary of the Interior
superseded this provision by issuing an order providing that the
Governor and Lieutenant Governor were to be popularly elected.
[Footnote 101] The Governor‘s veto power is similar to that of the U.S.
President, except that if the Governor vetoes a bill and the
legislature overrides the veto with a two-thirds majority of each
house, the Governor, if still disapproving of the bill, may submit it
to the Secretary of the Interior, who has the ultimate authority to
decide if the legislation becomes law. [Footnote 102] The Constitution
also provides for a judicial branch, which consists of the High Court,
local district courts, and other courts that may be created by law.
[Footnote 103] In 1983, Congress provided that the Constitution of
American Samoa may only be amended by an act of Congress.[Footnote 104]
American Samoa has limited representation in Congress. In 1970, the
American Samoa legislature created the Office of the American Samoa
Delegate-at-Large, which was to provide American Samoa with official
representation in Washington, D.C.[Footnote 105] In 1978, Congress
recognized the delegate from American Samoa and accorded the delegate
status equivalent to that of the delegates from Guam and the U.S.
Virgin Islands. As such, the delegate from American Samoa has all
congressional privileges, including a vote in committee, except a vote
in Congress as a whole.[Footnote 106]
Although certain characteristics of the court system in American Samoa
have been modified over time, the court system continues to resemble
the system established by the first Commandant of the Naval Station in
1900. Although the village courts are no longer used, the High Court
and the local district court remain in place, with the same basic
division of jurisdiction, such that the High Court has jurisdiction
over major local matters, including matters involving land and matai
titles, and the local district court has jurisdiction over minor local
matters, such as misdemeanor criminal cases and civil cases in which
the amount in controversy does not exceed $5,000. While new avenues to
appeal decisions of the High Court have been established, the appellate
process within the American Samoa judiciary remains similar, with the
appellate division of the High Court maintaining jurisdiction over
decisions of the other High Court divisions and the local district
court. Further, although the judges were initially appointed by the
Governor, since 1931, the Chief Justice of the High Court has been
appointed by the President‘s delegate, first the Secretary of the Navy
and then the Secretary of the Interior. In 1900, the first Commandant
of the Naval Station, Commander Benjamin Tilley, issued Regulation No.
5, which established a system of courts in American Samoa. [Footnote
107] The system of courts consisted of village courts, local district
courts, and the High Court.[Footnote 108] The village courts had
jurisdiction over minor civil and criminal cases involving Samoans.
[Footnote 109] The local district courts had jurisdiction over more
significant cases and cases involving non-Samoans.[Footnote 110] The
High Court had exclusive jurisdiction over major cases involving sums
over $250 or criminal penalties over 6 months and all cases involving
real property, treason, murder, and offenses committed within the Naval
Station.[Footnote 111] According to a former Naval Governor of American
Samoa, the village and local district courts had a case load generally
consisting of cases involving offenses such as acts of physical
violence, burglary, larceny, sex offenses, desertion, failure to pay
taxes, traffic offenses, trespass, nonsupport of wife, and disorderly
conduct.[Footnote 12] At the same time, the High Court mostly handled
land and matai title disputes.[Footnote 113]
In 1952, the judiciary of American Samoa underwent a major
reorganization. The village courts were no longer used, and their
jurisdiction was transferred to the local district courts. [Footnote
114] The High Court was reorganized into three divisions: appellate,
probate, and trial.[Footnote 115] The structure of the High Court has
continued to change over time, and jurisdiction over certain matters
has been transferred between divisions. By 1969, local law had added to
the High Court a fourth division, the land and titles division, which
was to handle disputes related to land and matai titles. [Footnote 116]
In 1979, local law eliminated the probate division and transferred such
jurisdiction to the trial division of the High Court.[Footnote 117] In
2000, local law established a family, drug and alcohol court division.
[Footnote 118] The law authorized the Chief Justice to transfer from
the trial division of the High Court or the local district court to the
family, drug and alcohol court division juvenile cases, domestic
relations cases, certain domestic violence cases, and certain alcohol
and substance abuse-related cases.[Footnote 119]
In addition to restructuring the High Court, local law has also granted
the High Court additional jurisdiction, such as over certain admiralty
and maritime matters. In 1975, in response to Vessel Fijian Swift v.
Trial Division of the High Court of American Samoa, in which the High
Court held that it did not have in rem admiralty jurisdiction absent an
express grant of such jurisdiction, [Footnote 120] local law granted
the High Court jurisdiction, both in personam and in rem, over
admiralty and maritime matters in common law.[Footnote 121] In 1982,
the U.S. District Court of Hawaii confirmed that the High Court could
exercise both in rem and in personam jurisdiction in admiralty and
maritime cases.[Footnote 122] Although the High Court has jurisdiction
over matters of admiralty and maritime common law, the High Court does
not necessarily have jurisdiction over actions arising under federal
maritime statutes, unless explicitly provided by federal law. [Footnote
123] Federal law has so provided in, for example, the statute governing
maritime commercial instruments and liens. [Footnote 124]
Throughout the 1960s and 1970s, and again in the early 2000s, federal
law also provided that the High Court has jurisdiction over cases
arising under certain other federal statutes. For example, the High
Court has been granted jurisdiction over cases arising under certain
federal statutes governing grain standards,[Footnote 125] pesticide
control,[Footnote [126] animal welfare,[Footnote [127] animal and plant
health,[Footnote [128] and poultry and meat inspection.[Footnote 129]
Thus, current law provides that the High Court and local district court
have jurisdiction over all local matters and certain federal matters.
The High Court is composed of the trial; land and titles; family, drug
and alcohol; and appellate divisions. The trial division has
jurisdiction over civil cases in which the amount in controversy
exceeds $5,000 (except land and matai title matters), criminal cases in
which a felony is charged, admiralty and maritime matters, juvenile
cases, probate, domestic relations except adoptions and certain child
and spousal support cases, all writs, and any matter not otherwise
provided for in statute.[Footnote 130] The land and titles division has
jurisdiction over all matters relating to matai titles and all
controversies relating to land.[Footnote 131] The family, drug and
alcohol court division has jurisdiction over the following types of
cases transferred from the trial division or the local district court:
juvenile cases, including traffic offenses; domestic relations cases;
domestic violence crimes except homicides and other Class A felonies;
and criminal cases in which alcohol or other substance abuse is
involved, including serious traffic offenses, except cases charging
possession of a controlled substance with intent to distribute.
[Footnote 132] The appellate division has appellate jurisdiction over
all final decisions of the trial and land and titles divisions,
appellate jurisdiction over all local district court and administrative
decisions, and appeals of other matters specifically provided for by
statute.[Footnote 133] The local district court retains jurisdiction
over civil cases in which the amount in controversy does not exceed
$5,000 (except land and matai title matters), criminal cases in which
the offense charged is a misdemeanor or any offense punishable by not
more than 1 year of imprisonment, traffic cases except those involving
a felony, initial appearances and preliminary examinations in all
criminal cases, adoptions and certain child and spousal support cases,
and certain public health offenses.[Footnote 134]
Appeals:
Beginning in 1900, the appellate division of the High Court had
appellate jurisdiction over decisions of the trial division of the High
Court [Footnote 135] and over decisions of the local district courts,
[Footnote 136] and when the land and titles and family, drug, and
alcohol court divisions were established within the High Court, the
appellate division of the High Court assumed appellate jurisdiction
over decisions of those divisions.[Footnote 137] Initially, the local
district courts had appellate jurisdiction over decisions of the
village courts,[Footnote 138] but once the village courts became
defunct in 1952, the local district court lost its appellate
jurisdiction. As such, current law provides that the appellate division
of the High Court has appellate jurisdiction over decisions of the
trial, land and titles, and family, drug, and alcohol court divisions
of the High Court, as well as appellate jurisdiction over decisions of
the local district court accompanied by a stenographic record and
appeals based on a question of law.[Footnote 139] All decisions of the
local district court in cases without a stenographic record may be
appealed to the trial division of the High Court for de novo review.
[Footnote 140]
The Secretary of the Interior may also exercise appellate jurisdiction
over decisions of the High Court. In June 1985, the Church of Jesus
Christ of Latter-Day Saints requested that the Secretary of the
Interior intervene and overturn a decision of the High Court regarding
a piece of land in American Samoa.[Footnote 141] Though he declined to
intervene, finding that such an intervention would undermine the U.S.
policy of fostering greater self-government and self-sufficiency, the
Secretary of the Interior stated that he had the authority to review
the decision of the High Court.[Footnote 142] When the Church of Jesus
Christ of Latter-Day Saints subsequently challenged the
constitutionality of the Secretary‘s refusal to overturn the High Court
decision, the U.S. Court of Appeals for the District of Columbia
Circuit approved of the Secretary of the Interior‘s assertion of
authority, stating that:
The Congress has delegated its judicial authority with respect to
American Samoa to the President, who has in turn delegated it to the
Secretary... The Congress, that is, could have, so far as Article III
is concerned, provided that the Secretary himself would exercise the
judicial power in American Samoa. No doubt, the due process clause of
the Fifth Amendment may qualify this prerogative in some way. The
Secretary might not be able to exercise his authority, nor perhaps even
to retain it in dormancy, in a case to which he is a party. But that is
a far cry from this case. Here, there is no claim that the Secretary
was interested in the outcome. So far as due process is concerned,
therefore, he could have decided it himself and there can be no cause
of action because the court that did so was subservient to him.
[Footnote 143]
A decision of the High Court may not only be appealed to the Secretary
of the Interior, it may also be collaterally challenged by filing an
action in the U.S. District Court for the District of Columbia against
the Secretary of the Interior for failing to administer American Samoa
in accordance with the U.S. Constitution and federal law. This approach
was first tested in King v. Morton in the mid-1970s.[Footnote 144] In
that case, an individual charged in the High Court of American Samoa
with willfully failing to pay his income tax moved for, and was denied,
a jury trial.[Footnote 145] He subsequently commenced an action in the
U.S. District Court for the District of Columbia against the Secretary
of the Interior, requesting that the court declare unconstitutional the
Secretary of the Interior‘s administration of American Samoa in such a
way that denied him the right to trial by jury.[Footnote 146] The
district court dismissed the case for lack of jurisdiction, but the
U.S. Court of Appeals for the District of Columbia Circuit held that
the U.S. District Court for the District of Columbia could have
jurisdiction under the federal question or writ of mandamus statutes,
stating that the district court is ’competent to judge the Secretary‘s
administration of the government of American Samoa by constitutional
standards and, if necessary, to order the Secretary to take appropriate
measures to correct any constitutional deficiencies.“[Footnote 147] The
court again found that district court is competent to hear challenges
to the constitutionality of the Secretary of the Interior‘s
administration of American Samoa in Corporation of Presiding Bishop of
Church of Jesus Christ of Latter-Day Saints v. Hodel.[Footnote 148] In
that case, the U.S. District Court for the District of Columbia found
that, though the Church of Jesus Christ of Latter-Day Saints failed to
raise a federal question, the court had jurisdiction to hear valid
claims under the Constitution or federal law against the Secretary of
the Interior regarding his administration of American Samoa. [Footnote
149] Thus, current law provides that decisions of the appellate
division of the High Court may be appealed either directly to the
Secretary of the Interior or challenged collaterally in the U.S.
District Court for the District of Columbia, whose decisions may be
appealed to the U.S. Court of Appeals for the District of Columbia
Circuit and then to the U.S. Supreme Court.
Judges:
Beginning in 1900, the Commandant of the Naval Station was the
President of the High Court and could appoint others to serve as
judges.[Footnote 150] In 1903, the Commandant created the Office of
Native Affairs, which was to supervise the judiciary.[Footnote 151] The
Secretary of Native Affairs, a naval officer, became the chief judge of
the local district courts, as well as serving as the legal advisor to
the Governor, sheriff of the local police force, and prosecutor.
[Footnote 152] Samoans appointed by the Governor sat as judges on the
local district courts and magistrates of the village courts, with
lifetime tenure, subject to removal only for misconduct.[Footnote 153]
Judges From 1931 until 1951, the Chief Justice of the High Court was
appointed by the Secretary of the Navy. In 1931, the Governor separated
the functions of the judge and prosecutor in the Chief Justice and
Attorney General. The Chief Justice was to be a civilian appointed by
the Secretary of the Navy,[Footnote 154] and the Attorney General
position was filled by a naval officer.[Footnote 155] At this point,
the Governor ceased to be the President of the High Court, and the
Chief Justice was appointed by, and directly accountable to, the
Secretary of the Navy.[Footnote 156] The Chief Justice was able to
select associate judges from among the district judges to assist with
cases in the High Court.[Footnote 157]
Since 1951, when administration of American Samoa was transferred from
the Secretary of the Navy to the Secretary of the Interior, the Chief
Justice has been appointed by the Secretary of the Interior,[Footnote
158] and since 1962, the Associate Justice has also been appointed by
the Secretary of the Interior.[Footnote 159] In the 1970s, the
Secretary of the Interior began appointing federal judges to serve as
Acting Associate Justices.[Footnote 160] About once each year, the
Secretary coordinates with the Pacific Islands Committee of the Ninth
Circuit to appoint judges to travel to American Samoa to hear appellate
cases for approximately a week at a time.
Current law provides that the Chief Justice and Associate Justice are
appointed by the Secretary of the Interior and hold lifetime tenure for
good behavior, but may be removed by the Secretary of the Interior for
cause.[Footnote 161] The Chief Justice and Associate Justice must be
trained in law.[Footnote 162] The associate judges are appointed by the
Governor, upon the recommendation of the Chief Justice and confirmation
of the Senate, and hold lifetime tenure, except that they may be
removed by the Chief Justice for cause.[Footnote 163] The associate
judges are not required to be trained in law,[Footnote 164] but rather
are appointed based on their knowledge of Samoan custom and
traditions.[Footnote 165]
Also according to current law, the appellate division of the High Court
is composed of the Chief Justice, Associate Justice, Acting Associate
Justices, and associate judges.[Footnote 166] Sessions are held before
three justices and two associate judges,[Footnote 167] and the presence
of two justices and one associate judge is necessary to constitute a
quorum and decide a case.[Footnote 169] In the case of a difference of
opinion, the opinion of the two justices prevails, except in appeals
from the land and title division, in which the opinion of the majority
of five associate judges prevails.[Footnote 169] The land and title
division is composed of the Chief Justice, Associate Justice, and the
associate judges.[Footnote 170] For land matters, sessions are held
before one justice and two associate judges, and the presence of one
justice and one associate judge is necessary to constitute a quorum and
decide a case.[Footnote 171] In the case of a difference of opinion,
the opinion of the justice prevails.[Footnote 172] For matai title
matters, sessions are held before one justice and four associate
judges, and the presence of one justice and three associate judges is
necessary to constitute a quorum and decide a case.[Footnote 173] In
the case of a difference of opinion, the opinion of the majority of the
four associate judges prevails, and if there is a tie, the justice
casts the deciding vote.[Footnote 174] The trial division is composed
of the Chief Justice, Associate Justice, and the associate judges.
[Footnote 175] Sessions are held before one justice and two associate
judges, and the presence of one justice and one associate judge is
necessary to constitute a quorum and decide a case.[Footnote 176] In
the case of a difference of opinion, the opinion of the justice
prevails.[Footnote 177] In the family, drug and alcohol court division,
sessions are held before the Chief Justice, Associate Justice or Acting
Associate Justice, and two associate judges, and the presence of one
justice and one associate judge constitutes a quorum for the trial and
determination of the case.[Footnote 178]
The local district court judge is appointed by the Governor, upon the
recommendation of the Chief Justice and confirmation by the Senate,
[Footnote 179] and holds lifetime tenure, although he may be removed by
the Chief Justice for cause.[Footnote 180] The district court judge
must also be trained in law.[Footnote 181]
[End of section]
Appendix VI: History and Development of the Judicial System of the
Commonwealth of the Northern Mariana Islands:
Overview:
The Commonwealth of the Northern Mariana Islands, a chain of 14 islands
stretching north from Guam, has a total land area of about 185 square
miles. The three largest islands are Saipan, Tinian, and Rota. Saipan
is about 3,300 miles from Hawaii, or about three-quarters of the
distance from Hawaii to the Philippines. According to U.S. Census
Bureau Data for 2000, the population of the Northern Mariana Islands is
about 69,000, composed primarily of Asians, including Filipinos and
Chinese, and Pacific Islanders, including Chamorros, Carolinians, and
other Micronesians. About 58 percent of individuals residing in the
Northern Mariana Islands are foreign born, and about 57 percent are not
U.S. citizens. English, Chamorro, and Carolinian are the official
languages of the Northern Mariana Islands.[Footnote 182]
The Chamorro people are believed to have arrived in the Northern
Mariana Islands about 1500 B.C.[Footnote 183] In 1565, Spain claimed
the Mariana Islands as a possession, and in the mid-seventeenth
century, Spain began to colonize the islands. [Footnote 184] During the
time of Spanish colonization, the Chamorro population of Guam and the
Northern Mariana Islands declined significantly”from between 50,000 and
100,000 when the Spanish first arrived in the mid-sixteenth century to
around 1,500 by the time of the Spanish census in 1783.[Footnote 185]
In the late-seventeenth century, Spain removed almost all of the
population of the Northern Mariana Islands, with the exception of a
small population on Rota that evaded the Spanish, to Guam, so that the
islands remained nearly uninhabited until the nineteenth century.
[Footnote 186] In the mid-nineteenth century, people from the Caroline
Islands began to migrate to the Northern Mariana Islands, and in the
late-nineteenth century, the Chamorros were allowed to return from
Guam. [Footnote 187]
During the twentieth century, the Northern Mariana Islands passed under
the control of several foreign powers. After the Spanish-American War,
Spain sold the Northern Mariana Islands to Germany.[Footnote 188] In
1914, Japan occupied the Northern Mariana Islands and became formally
responsible for the islands in 1920.[Footnote 189] In 1944, the United
States invaded the Northern Mariana Islands and defeated the Japanese.
[Footnote 190] Subsequently, in 1947, the Northern Mariana Islands,
along with the Caroline and Marshall Islands, entered into a
trusteeship called the Trust Territory of the Pacific Islands, to be
administered by the United States.[Footnote 191] The Northern Mariana
Islands, however, after an unsuccessful attempt to be integrated with
Guam, sought a separate relationship with the United States.[Footnote
192] By 1972, the Northern Mariana Islands had entered into separate
status negotiations with the United States, and in 1975 the Northern
Mariana Islands and the United States concluded a Covenant to Establish
a Commonwealth of the Northern Mariana Islands in Political Union with
the United States of America,[Footnote 193] making the Northern Mariana
Islands a ’self-governing commonwealth...in political union with and
under the sovereignty of the United States of America.“[Footnote 194]
The Covenant granted citizenship to residents of the Northern Mariana
Islands[Footnote 195] and stated that the Northern Mariana Islands
would approve a constitution that would provide for a local
legislature, a popularly-elected Governor, and a local court system.
[Footnote 196] The Covenant also provided for a District Court for the
Northern Mariana Islands.[Footnote 197] In 1977, the Northern Mariana
Islands adopted the Constitution of the Northern Mariana Islands,
[Footnote 198] and in 1986 the Trusteeship Agreement establishing the
Trust Territory of the Pacific Islands was dissolved, making the
Covenant fully effective.[Footnote 199]
The court system in the Northern Mariana Islands has developed in such
a way that, over time, the local courts were granted additional
responsibility and autonomy. For example, although the district court
initially had jurisdiction over certain local matters, such
jurisdiction was transferred from the District Court for the Northern
Mariana Islands to the local Superior Court. Similarly, appellate
jurisdiction over decisions of the Superior Court was transferred from
the District Court for the Northern Mariana Islands to the newly-
created local Supreme Court. Further, the appellate jurisdiction of the
U.S. Court of Appeals for the Ninth Circuit over decisions of the
Supreme Court expired, so that the U.S. Supreme Court has the same
appellate jurisdiction over decisions of the Supreme Court of the
Northern Mariana Islands as it does over decisions of the highest state
courts. The current court system of the Northern Mariana Islands is
composed of a District Court for the Northern Mariana Islands, which
has the jurisdiction of a U.S. district court [Footnote 200] and a
bankruptcy court; a local Superior Court, which handles local matters;
and a Supreme Court, which has appellate jurisdiction over decisions of
the Superior Court.
Jurisdiction:
Beginning in the late 1970s, the District Court for the Northern
Mariana Islands had the original jurisdiction of a district court, as
well as original jurisdiction over certain local criminal and civil
cases and appellate jurisdiction over certain criminal and civil cases.
Pursuant to the Covenant, in 1977 Congress established the District
Court for the Northern Mariana Islands, granting the court the
jurisdiction of a district court of the United States, except that
cases arising under the Constitution or federal law had no minimum sum
or value of the matter in controversy.[Footnote 201] The federal law
also granted the district court original jurisdiction over all cases
that the Constitution or laws of the Northern Mariana Islands did not
vest in a local court.[Footnote 202] Further, the law granted the
district court appellate jurisdiction as the Constitution and laws of
the Northern Mariana Islands provided.[Footnote 203] Pursuant to the
federal law, the Northern Mariana Islands immediately acted to vest
limited jurisdiction in the local trial court and to define the
appellate jurisdiction of the district court. The Constitution of the
Northern Mariana Islands, adopted in 1977, established the Commonwealth
Trial Court and granted it jurisdiction over all actions involving land
in the Commonwealth, other civil actions in which the value of the
matter in controversy did not exceed $5,000, and criminal actions in
which the defendant, if convicted, could be fined no more than $5,000
or imprisoned for a term of no more than 5 years.[Footnote 24] The
Constitution also provided that, at least 5 years after the
Constitution has been in effect, the legislature could vest additional
civil and criminal jurisdiction in the Commonwealth Trial Court.
[Footnote 205] In 1978, the legislature of the Northern Mariana Islands
also granted the district court appellate jurisdiction over all final
judgments, final orders, and final decrees in criminal and civil cases.
[Footnote 206] Thus, at that time, the district court had original
jurisdiction over major local criminal and civil cases, as well as the
jurisdiction of a federal district court, and appellate jurisdiction
over final decisions in criminal and civil cases.
During the 1980s, significant changes were made to the jurisdiction of
the courts of the Northern Mariana Islands, as the government of the
Northern Mariana Islands vested additional jurisdiction in the local
courts, thereby divesting the district court of such jurisdiction. In
1982, the Northern Mariana Islands vested additional jurisdiction in
the Commonwealth Trial Court, passing a law such that, effective
January 1983, the trial court had original jurisdiction in all civil
and criminal cases arising under the laws of the Northern Mariana
Islands.[Footnote 207] Further, in 1988, the Northern Mariana Islands
renamed the local trial court and expanded the jurisdiction of the
newly-named Superior Court to include all civil actions, in law and in
equity, and all criminal actions.[Footnote 208] The Northern Mariana
Islands also established a Supreme Court and provided that, effective
in May 1989, the Supreme Court had appellate jurisdiction over
judgments and orders of the Superior Court.[Footnote 209] As a result
of these changes, the district court was divested of its original, as
well as appellate, jurisdiction over local matters. In 1984, Congress
also changed the jurisdiction of the district court by redefining the
jurisdiction to be that of a district court of the United States, to
include diversity jurisdiction,[Footnote 210] and the jurisdiction of a
bankruptcy court.[Footnote 211]
Appeals:
Appeals from the District Court for the Northern Mariana Islands to the
U.S. Court of Appeals:
From 1977 until 1984, the U.S. Court of Appeals for the Ninth Circuit
had appellate jurisdiction over decisions of the appellate division of
the District Court for the Northern Mariana Islands and decisions
arising under federal law of the trial division of the District Court,
and the appellate division of the District Court had appellate
jurisdiction over decisions arising under local law of the trial
division of the District Court. The 1977 federal law implementing the
Covenant provided that portions of title 28 of the U.S. Code that apply
to Guam or the District Court of Guam apply to the Northern Mariana
Islands or the District Court for the Northern Mariana Islands, except
as otherwise provided in Article IV of the Covenant.[Footnote 212]
Thus, subject to Article IV of the Covenant, which authorizes the
Northern Mariana Islands to determine the appellate jurisdiction of the
district court, the U.S. Court of Appeals for the Ninth Circuit would
have appellate jurisdiction over all final and interlocutory decisions
of the District Court for the Northern Mariana Islands.[Footnote 213]
In 1980, the U.S. Court of Appeals for the Ninth Circuit held that it
did not have appellate jurisdiction over decisions in cases arising
under local law issued by the trial division of the District Court of
the Northern Mariana Islands; rather, the Northern Mariana Islands, as
authorized by Article IV of the Covenant, had properly vested the
appellate division of the District Court with appellate jurisdiction
over such decisions.[Footnote 214]
In 1984, Congress, disapproving of this holding, repealed the statutory
provision authorizing the Northern Mariana Islands to determine the
appellate jurisdiction of the district court and replaced it with a
provision authorizing the Northern Mariana Islands to determine the
appellate jurisdiction of the district court only over the courts
established by the Constitution and laws of the Northern Mariana
Islands.[Footnote 215] This amendment made clear that the Northern
Mariana Islands could not grant the appellate division of the district
court appellate jurisdiction over decisions of the trial division of
the district court. Rather, the appellate division of the district
court had appellate jurisdiction only over decisions of the local
Superior Court, and the U.S. Court of Appeals for the Ninth Circuit had
appellate jurisdiction over all final decisions of the District Court.
[Footnote 216] The 1984 federal law also codified the appellate
jurisdiction of the U.S. Court of Appeals for the Ninth Circuit over
final decisions of the appellate division of the District Court for the
Northern Mariana Islands.[Footnote 217] Once the Supreme Court became
operational in 1989, this provision became moot.[Footnote 218] Thus,
from 1984 until the present, the U.S. Court of Appeals for the Ninth
Circuit has had jurisdiction over all final and interlocutory decisions
of the District Court for the Northern Mariana Islands.[Footnote 219]
Appeals from the District Court of the Northern Mariana Islands to the
U.S. Supreme Court:
From 1977 until 1988, the U.S. Supreme Court had appellate jurisdiction
over certain decisions of the District Court for the Northern Mariana
Islands. The 1977 federal law implementing the Covenant provided that
portions of title 28 of the U.S. Code that applied to Guam or the
District Court of Guam applied to the Northern Mariana Islands or the
District Court for the Northern Mariana Islands, except as otherwise
provided in Article IV of the Covenant,[Footnote 220] such that the
U.S. Supreme Court had appellate jurisdiction over any decision of the
District Court for the Northern Mariana Islands that held a federal law
unconstitutional in a case in which the United States was a party.
[Footnote 221]
In 1988, however, Congress repealed the provision allowing a direct
appeal to the U.S. Supreme Court from a decision of a district court.
[Footnote 222] As a result, current law provides that decisions of the
District Court for the Northern Mariana Islands may not be appealed
directly to the U.S. Supreme Court.
Appeals from the Superior Court of the Northern Mariana Islands:
From 1977 until 1989, decisions of the Superior Court could be appealed
to the appellate division of the District Court for the Northern
Mariana Islands. The 1977 federal law implementing the Covenant
authorized the Northern Mariana Islands to determine the appellate
jurisdiction of the District Court for the Northern Mariana Islands,
[Footnote 223] and in 1978, the Northern Mariana Islands provided that
the district court had appellate jurisdiction over final decisions in
criminal and civil cases.[Footnote 224] As noted above, in 1984,
Congress confirmed that final decisions of the appellate division of
the district court could be appealed to the U.S. Court of Appeals for
the Ninth Circuit,[Footnote 225] such that decisions of the Superior
Court could be appealed first to the appellate division of the district
court and then to the U.S. Court of Appeals for the Ninth Circuit. Once
the Supreme Court of the Northern Mariana Islands became operational in
1989, it had appellate jurisdiction over decisions of the Superior
Court.[Footnote 226]
Appeals from the Supreme Court of the Northern Mariana Islands:
From 1989 until 2004, the U.S. Court of Appeals for the Ninth Circuit
had appellate jurisdiction over the Supreme Court of the Northern
Mariana Islands. Federal law provides that the relations between the
federal and local courts with respect to appeals, certiorari, removal
of causes, and writs of habeas corpus are governed by the laws
respecting the relations between the federal and state courts, except
that for the first 15 years following the creation of the Supreme
Court, the Ninth Circuit would have jurisdiction to review by writ of
certiorari the decisions of such court in all cases involving the
Constitution or federal law.[Footnote 227] Thus, from 1989 until 2004,
the first 15 years of the operation of the Supreme Court of the
Northern Mariana Islands, the U.S. Court of Appeals for the Ninth
Circuit had appellate jurisdiction over cases arising under federal law
decided by the Supreme Court of the Northern Mariana Islands. In 2004,
the relationship between the Supreme Court of the Northern Mariana
Islands and the federal court system became like that between a state
supreme court and the federal court system. Of primary importance,
final decisions of the Supreme Court of the Northern Mariana Islands
may be reviewed by the U.S. Supreme Court, at its discretion, by writ
of certiorari where the validity of a treaty or federal law is drawn
into question; a territorial statute is drawn into question on the
ground of it being repugnant to the U.S. Constitution, treaties, or
federal law; or any title, right, privilege, or immunity is specially
set up or claimed under the U.S. Constitution, treaties, federal, or
commission held or authority exercised under the United States.
[Footnote 228]
Judges:
The length of the terms of appointment for judges sitting on the
District Court for the Northern Mariana Islands has increased over
time. In 1977, federal law provided that the judge for the district
court was to be appointed by the U.S. President with the advice and
consent of the Senate for a term of 8 years and paid the same salary as
that of a U.S. district judge.[Footnote 229] The 1984 amendments
extended the term of the district judge to 10 years.[Footnote 230]
Thus, current law provides that the district judge for the Northern
Mariana Islands holds a term of 10 years and is to receive a salary
equal to that of judges of the U.S. district courts.[Footnote 231]
In addition to the district judge for the Northern Mariana Islands,
additional judges may be assigned to sit on the District Court for the
Northern Mariana Islands, and the population of judges eligible to be
assigned to sit on the court has increased over time. In 1977, federal
law provided that, whenever such an assignment is necessary for the
proper dispatch of the business of the court, the Chief Judge of the
Ninth Circuit may assign justices of the High Court of the Trust
Territory of the Pacific Islands or judges of courts of record of the
Northern Mariana Islands who are licensed attorneys in good standing,
or a circuit or district judge of the Ninth Circuit, including a judge
of the District Court of Guam who is appointed by the President; and
the Chief Justice of the United States may assign any other U.S.
circuit or district judge with the consent of the assigned judge and
the chief judge of that circuit, to serve temporarily as a judge for
the District Court for the Northern Mariana Islands.[Footnote 232] In
1984, federal law expanded the population of judges eligible to serve
temporarily as a judge for the district court by authorizing the Chief
Judge of the Ninth Circuit to assign a recalled senior judge of the
District Court of Guam or of the District Court for the Northern
Mariana Islands.[Footnote 233] Thus, current law provides that,
whenever such an assignment is necessary for the proper dispatch of the
business of the court, the Chief Judge of the Ninth Circuit may assign
justices of the High Court of the Trust Territory of the Pacific
Islands, judges of courts of record of the Northern Mariana Islands who
are licensed attorneys in good standing, a circuit or district judge of
the Ninth Circuit, including a judge of the District Court of Guam who
is appointed by the President, or a recalled senior judge of the
District Court of Guam or of the District Court for the Northern
Mariana Islands; and the Chief Justice of the United States may assign
any other U.S. circuit or district judge with the consent of the
assigned judge and the chief judge of that circuit, to serve
temporarily as a judge for the District Court for the Northern Mariana
Islands. [Footnote 234]
[End of section]
Appendix VII: History and Development of the Judicial System of Guam:
Overview:
Guam, at 217 square miles, is the largest island in the Northern
Pacific. It is located about 3,700 miles from Hawaii, or about three-
quarters of the distance from Hawaii to the Philippines. According to
U.S. Census Bureau data for 2000, the population of Guam is about
155,000. Guam‘s primary ethnic groups are Chamorro and Filipino, and
English and Chamorro are the dual official languages.[Footnote 235]
Guam is believed to have been inhabited by the Chamorro people since
about 2000 B.C.[Footnote 236] In 1521, Ferdinand Magellan landed on
Guam; Spain claimed Guam and the Northern Mariana Islands as a
possession in 1565, and in the mid-seventeenth century Spain began to
colonize the islands.[Footnote 237] During the time of Spanish
colonization, the Chamorro population of Guam and the Northern Mariana
Islands declined significantly”from between 50,000 and 100,000 when the
Spanish first arrived in the mid-sixteenth century to around 1,500 by
the time of the Spanish census in 1783.[Footnote 238] After the Spanish-
American War, in 1898, the United States took control of Guam, and the
U.S. Navy became responsible for governing Guam.[Footnote 239] In 1941,
Japan invaded Guam and occupied the island until 1944, when American
forces recaptured Guam.[Footnote 240] In 1950, Congress passed the
Organic Act for Guam, making Guam an unincorporated but organized
territory of the United States.[Footnote 241] The Organic Act granted
U.S. citizenship to the residents of Guam[Footnote 242] and organized a
local government, which was to consist of a legislature;[Footnote 243]
a Governor who would be appointed by the President, with the consent of
the U.S. Senate;[Footnote 244] and a district court.[Footnote 245]
Responsibility for the administration of Guam was subsequently
transferred from the Secretary of the Navy to the Secretary of the
Interior, where it remains today.[Footnote 246] In 1968, Congress
amended the Organic Act to allow for the popular election of the
Governor and Lieutenant Governor of Guam,[Footnote 247] and in 1972
Congress granted Guam a nonvoting delegate to Congress.[Footnote 248]
Although Congress authorized Guam to call a constitutional convention
to draft a local constitution in 1976,[Footnote 249] the proposed
constitution was rejected by voters in a referendum.[Footnote 250]
The court system in Guam has undergone significant changes since 1950.
Congress and the Guam legislature have, over time, increased the
responsibility and autonomy of the courts in Guam. For example,
although the district court initially had jurisdiction over certain
local matters, such jurisdiction was subsequently transferred from the
District Court of Guam to the local Superior Court. Similarly, while
the District Court of Guam had appellate jurisdiction over decisions of
the Superior Court for a period of time, such jurisdiction was
transferred from the District Court of Guam to the newly-created
Supreme Court. Further, in order to provide oversight over the new
Supreme Court, Congress originally provided that the U.S. Court of
Appeals would have appellate jurisdiction over decisions of the Supreme
Court for 15 years after its establishment. However, Congress later
repealed this provision, providing that certain decisions of the
Supreme Court may be appealed to the U.S. Supreme Court, just as are
certain decisions of the highest state courts. The current court system
of Guam is composed of a District Court of Guam, which has the
jurisdiction of a U.S. district court[Footnote 251] and a bankruptcy
court; a local Superior Court, which handles local matters; and a
Supreme Court, which has appellate jurisdiction over decisions of the
Superior Court.
Jurisdiction:
Beginning in 1950, the District Court of Guam had original jurisdiction
over federal cases and some local cases, as well as appellate
jurisdiction over certain decisions of the local trial court. In 1950,
the Organic Act established the District Court of Guam and granted the
court original jurisdiction over all cases arising under federal law,
as well as all other cases in Guam not transferred by the Guam
legislature to local courts.[Footnote 252] The Organic Act also granted
the district court appellate jurisdiction to be determined by the Guam
legislature.[Footnote 253] The Guam legislature subsequently
reorganized the local court system, granting the local Island Court
jurisdiction over non-felony cases arising under the laws of Guam,
certain felony cases arising under the laws of Guam, all domestic
relations and probate cases, and civil cases in which the amount in
controversy did not exceed $2,000.[Footnote 254] Pursuant to the
Organic Act, the Guam legislature also created an appellate division of
the district court and provided that the district court had appellate
jurisdiction over certain civil and criminal decisions of the Island
Court.[Footnote 255]
In 1974, Guam vested additional jurisdiction in the local courts,
thereby divesting the district court of such jurisdiction. The
legislature passed the Court Reorganization Act, creating a Superior
Court, which replaced the preexisting Island, Police, and
Commissioners‘ Courts.[Footnote 256] The Act provided the Superior
Court with original and exclusive jurisdiction over all cases arising
under local law, except for cases also arising under federal law or
pertaining to the Guam territorial income tax.[Footnote 257] The Court
Reorganization Act also purported to create a Supreme Court, which was
to have jurisdiction over appeals from the Superior Court, and repealed
provisions of local law governing the appellate jurisdiction of the
district court.[Footnote 258] The Supreme Court was not established
under this law, however, as the transfer of appellate jurisdiction from
the district court to the Supreme Court by the Guam legislature was
challenged, and the U.S. Court of Appeals for the Ninth Circuit held
that the Organic Act of Guam did not provide the Guam legislature with
the authority to divest the district court of its appellate
jurisdiction.[Footnote 259]
In response, Congress amended the Organic Act of Guam in 1984 to
authorize the Guam legislature to establish an appellate court and to
confer upon such a court jurisdiction over all cases in Guam over which
a federal district court does not have exclusive jurisdiction.[Footnote
260] The federal law also provided that, prior to the establishment of
an appellate court, the District Court of Guam would continue to
exercise appellate jurisdiction over the local courts of Guam.[Footnote
261] The same law expanded the jurisdiction of the district court to
that of a district court of the United States, to include diversity
jurisdiction.[Footnote 262] As an earlier law had conferred bankruptcy
jurisdiction on the district court,[Footnote 263] from 1984 until 1996
the district court had the jurisdiction of the district court of the
United States and a bankruptcy court of the United States, as well as
appellate jurisdiction over local cases.[Footnote 264]
The Guam legislature subsequently passed the Frank G. Lujan Memorial
Court Reorganization Act of 1992, which created the Supreme Court of
Guam.[Footnote 265] Once the Supreme Court became operational in 1996,
the District Court of Guam was divested of appellate jurisdiction over
local matters. In 2004, federal law amended the Organic Act to codify
into federal law the establishment of the Superior and Supreme Courts
of Guam.[Footnote 266] As a result, the District Court of Guam
currently has the jurisdiction of a district court of the United
States, including federal question jurisdiction and diversity
jurisdiction, and that of a bankruptcy court of the United States.
[Footnote 267]
Appeals:
Appeals from the District Court of Guam to the U.S. Court of Appeals:
In general, since the establishment of the District Court of Guam, the
U.S. Court of Appeals for the Ninth Circuit has had appellate
jurisdiction over decisions of the district court. The Organic Act of
1950 provided that the Court of Appeals for the Ninth Circuit was to
have appellate jurisdiction over decisions by the district court in all
cases arising under federal law, habeas corpus proceedings, and civil
cases in which the value in controversy exceeds $5,000.[Footnote 268]
In 1951, Congress repealed this provision and amended federal law
governing the appellate jurisdiction of the U.S. Courts of Appeals,
providing that the Ninth Circuit Court of Appeals had appellate
jurisdiction over all final and interlocutory decisions of the District
Court of Guam.[Footnote 269] In 1982, the U.S. Court of Appeals for the
Ninth Circuit held that its appellate jurisdiction extended to
decisions of the appellate, as well as the trial, division of the
District Court of Guam.[Footnote 270] In 1984, Congress codified into
statute the appellate jurisdiction of the U.S. Court of Appeals for the
Ninth Circuit over the decisions of the appellate division of the
District Court of Guam.[Footnote 271] Once the Supreme Court became
operational in 1996 and divested the district court of appellate
jurisdiction, this provision became moot. Thus, current law provides
that final and interlocutory decisions of the District Court of Guam
may be appealed to the U.S. Court of Appeals for the Ninth Circuit.
[Footnote 272]
Appeals from the District Court of Guam to the U.S. Supreme Court:
From 1950 until 1988, the U.S. Supreme Court had appellate jurisdiction
over certain decisions of the District Court of Guam. The Organic Act
provided that any party could appeal to the U.S. Supreme Court from a
decision of the district court that held a federal law unconstitutional
in a case in which the United States was a party.[Footnote 273] In
1951, although Congress repealed this provision and amended federal law
governing the appellate jurisdiction of the U.S. Supreme Court, the
right of appeal from the District Court of Guam to the U.S. Supreme
Court remained substantively the same.[Footnote 247]
In 1988, however, Congress repealed the provision allowing a direct
appeal to the U.S. Supreme Court of a decision of a district court that
holds a federal law unconstitutional in a case in which the United
States is a party.[Footnote 275] As a result, current law provides that
the decisions of the District Court of Guam may not be appealed
directly to the U.S. Supreme Court.
Appeals from the Superior Court of Guam:
From 1950 until 1996, the District Court of Guam had appellate
jurisdiction over decisions of the Superior Court. As noted above, the
Organic Act granted the district court appellate jurisdiction to be
determined by the Guam legislature,[Footnote 276] and the Guam
legislature subsequently created an appellate division of the district
court, providing that the district court had appellate jurisdiction
over certain civil and criminal decisions of the local court. [Footnote
277] Pursuant to the 1984 amendments to the Organic Act, the appellate
division of the District Court of Guam continued to exercise appellate
jurisdiction over decisions of the Superior Court, with the U.S. Court
of Appeals for the Ninth Circuit exercising appellate jurisdiction over
this appellate division.[Footnote 278]
Once the Supreme Court, authorized by federal law[Footnote 279] and
established by the Guam legislature,[Footnote 280] became operational
in 1996, it had appellate jurisdiction over decisions of the Superior
Court. In 2004, the appellate jurisdiction of the Supreme Court was
codified in U.S. Code, to include jurisdiction to hear appeals over any
cause in Guam decided by the Superior Court of Guam or other courts
established under the laws of Guam.[Footnote 281] Thus, current law
provides that the Supreme Court has appellate jurisdiction over
decisions of the Superior Court.
Appeals from the Supreme Court of Guam:
From 1996 until 2004, the U.S. Court of Appeals for the Ninth Circuit
had appellate jurisdiction over the Supreme Court of Guam. Federal law
provided that the relations between the federal and local courts with
respect to appeals, certiorari, removal of causes, and writs of habeas
corpus are governed by the laws respecting the relations between the
federal and state courts, except that for the first 15 years following
the creation of the Supreme Court, the Ninth Circuit would have
jurisdiction to review by writ of certiorari the decisions of such
court.[Footnote 282] Thus, once the Supreme Court became operational in
1996, the U.S. Court of Appeals for the Ninth Circuit had appellate
jurisdiction over the decisions of the Supreme Court. The U.S. Court of
Appeals for the Ninth Circuit stated that its appellate jurisdiction
over Supreme Court decisions extended not only to decisions arising
under federal law but also to decisions arising under local law.
[Footnote 283]
In 2004, 7 years before the expiration of the 15 years after the
establishment of the Supreme Court, Congress repealed the provision
providing the Ninth Circuit with temporary appellate jurisdiction over
decisions of the Supreme Court.[Footnote 284] Current law provides that
local courts of Guam have the same relationship to federal courts as do
state courts.[Footnote 285] Like final decisions of the highest state
courts, final decisions of the Supreme Court of Guam may be reviewed by
the U.S. Supreme Court, at its discretion, by writ of certiorari where
the validity of a treaty or federal law is drawn into question; a
territorial statute is drawn into question on the ground of it being
repugnant to the U.S. Constitution, treaties, or federal law; or any
title, right, privilege, or immunity is specially set up or claimed
under the U.S. Constitution, treaties, federal, or commission held or
authority exercised under the United States.[Footnote 286]
Judges:
The length of the terms of appointment for judges sitting on the
District Court of Guam has increased over time. The Organic Act of 1950
provided that the judge for the district court was to be appointed by
the U.S. President with the advice and consent of the Senate for a term
of 4 years and paid the same salary as the Governor of Guam.[Footnote
287] The 1958 amendments extended the term of the district judge to 8
years and provided that the district judge of Guam receive the salary
of U.S. district judges.[Footnote 288] In 1984, federal law again
extended the term of the district judge of Guam, to 10 years.[Footnote
289]
In addition to the judge appointed to sit on the District Court of
Guam, other judges may be assigned to sit on the district court, and
the population of judges that may be assigned to sit on the court has
increased over time. The Organic Act provided that the Chief Justice of
the United States was authorized to assign any consenting U.S. circuit
or district judge to serve as a judge in the District Court of Guam
whenever necessary for the proper dispatch of the business of the
court.[Footnote 290] In 1958, federal law expanded the population of
judges that were eligible to be assigned to serve temporarily in the
district court by authorizing the Chief Judge of the Ninth Circuit to
assign a judge of the Island Court of Guam, a judge of the High Court
of the Trust Territory of the Pacific Islands, or a circuit or district
judge of the Ninth Circuit to serve temporarily as a judge in the
District Court of Guam.[Footnote 291] In 1984, federal law again
expanded the population of judges eligible to serve temporarily in the
district court by authorizing the Chief Judge of the Ninth Circuit to
assign a recalled senior judge of the District Court of Guam or of the
District Court for the Northern Mariana Islands.[Footnote 292] As a
result, current law provides that the Chief Judge of the Ninth Circuit
may assign a judge of any local court of record, a judge of the High
Court of the Trust Territory of the Pacific Islands, a circuit or
district judge of the Ninth Circuit, or a recalled senior
judge of the District Court of Guam or of the District Court for the
Northern Mariana Islands; and the Chief Justice of the United States
may assign any other U.S. circuit or district judge, to serve
temporarily as a judge in the District Court of Guam.[Footnote 293]
[End of section]
Appendix VIII: History and Development of the Judicial System in the
United States Virgin Islands:
Overview:
The U.S. Virgin Islands consists of three main islands”St. Thomas, St.
John, and St. Croix”as well as about 50 islets and cays. The islands
have a total land mass of about 135 square miles and are located
approximately 1,200 miles southeast of Florida and 40 miles east of
Puerto Rico. According to 2000 U.S. Census Bureau data, the population
of the U.S. Virgin Islands is about 109,000. Based on the same data, of
the U.S. Virgin Islands population, about 76 percent is black and 13
percent is white, and though English is spoken at home by the majority
of the population, about 17 percent claim Spanish and about 7 percent
French or French Creole as their primary language.
The Virgin Islands are believed to have been first inhabited by the
Taino branch of the Arawak Indian culture group.[Footnote 294] The
Taino Indians are believed to have been defeated by the Carib Indians,
whom Christopher Columbus encountered when he first arrived in St.
Croix in 1493.[Footnote 295] Throughout the seventeenth century,
various European powers fought for control of the islands, but by 1735
Denmark governed the islands.[Footnote 296] With the use of large
numbers of slaves, Denmark developed a sugar economy on St. Croix and a
trading economy on St. Thomas.[Footnote 297]
The United States purchased the Virgin Islands from Denmark in 1917.
[Footnote 298] Federal law established a temporary government for the
U.S. Virgin Islands, vesting the Governor, who, from 1917 until 1931
was a naval officer, with all military, civil, and judicial powers.
[Footnote 299] The law also provided that local laws in effect at the
time of enactment would remain in force and be administered by the
existing local judicial tribunals.[Footnote 300] As such, the
legislative branch consisted of two legislatures, one in St. Croix and
one in St. Thomas, and the judicial branch consisted of the police
courts and district court.[Footnote 301]
In 1927, federal law provided that all residents of the U.S. Virgin
Islands were U.S. citizens.[Footnote 302] In 1931, the President
transferred responsibility for governing the U.S. Virgin Islands from
the Secretary of the Navy to the Secretary of the Interior.[Footnote
303]
Congress subsequently passed the Organic Act of 1936, which established
local self-government. The Act provided for two Municipal Councils, one
for St. Croix and one for St. Thomas and St. John, which were to meet
once a year to enact legislation that would apply to the Virgin Islands
as a whole;[Footnote 304] a Governor, to be appointed by the President
with the advice and consent of the Senate, who was to act under the
supervision of the Secretary of the Interior;[Footnote 305] and a
District Court of the Virgin Islands and such inferior courts as the
local legislature may determine.[Footnote 306] The Revised Organic Act
of 1954 largely maintained the governmental structure from the prior
Organic Act, except that it established a unified legislature for the
U.S. Virgin Islands.[Footnote 307] In 1968, federal law provided that
the Governor was to be popularly elected,[Footnote 308] and in 1972,
federal law granted the U.S. Virgin Islands a nonvoting delegate to
Congress.[Footnote 309] Although Congress authorized the U.S. Virgin
Islands to convene a constitutional convention to draft a constitution,
[Footnote 310] the proposed constitutions were rejected by voters.
[Footnote 311]
The court system in the U.S. Virgin Islands has changed over time, with
the local courts gradually gaining increased responsibility and
autonomy. For example, though the local trial court previously
exercised jurisdiction over certain local issues, in the 1970s and
early 1980s the local trial court was granted concurrent jurisdiction
with the district court over additional local cases, and by 1994 the
local trial court had been granted exclusive jurisdiction over local
cases. Similarly, while the District Court of the Virgin Islands had
appellate jurisdiction over decisions of the Superior Court for a
period of time, in 2007 such jurisdiction was transferred from the
District Court of the Virgin Islands to the newly-created Supreme
Court. The current court system of the U.S. Virgin Islands is composed
of the District Court of the Virgin Islands, which has the jurisdiction
of a U.S. district court[Footnote 312] and a bankruptcy court; a local
Superior Court, which handles local matters; and a Supreme Court, which
has appellate jurisdiction over decisions of the Superior Court.
Jurisdiction:
From 1917 until 1936, the local judicial system in the U.S. Virgin
Islands operated largely without federal influence. After the United
States acquired the Virgin Islands in 1917, Congress passed a law
providing that until Congress otherwise provided, local laws were to
remain in force and be administered by the existing local judicial
tribunals.[Footnote 313] By 1921, the local judicial tribunals
consisted of a district court and three police courts: the Police Court
of Frederiksted, the Police Court of Christiansted, and the Police
Court of Charlotte Amalie.[Footnote 314] The district court had
jurisdiction over all civil, criminal, admiralty, equity, insolvency,
and probate matters and causes, unless jurisdiction was conferred on
some other court, in which event the jurisdiction of the district court
was concurrent.[Footnote 315] The police courts had jurisdiction,
though not exclusive, over the recovery of specific personal property
when the value did not exceed $200, for the recovery of money or
damages when the amount claimed did not exceed $200, and over cases in
which the defendant confessed without action to certain offenses.
[Footnote 316] The police courts also had criminal jurisdiction, though
not exclusive, over cases involving larceny when the value of the
property did not exceed $50; assault or assault and battery, except
when charged as committed with intent to commit a felony, in the course
of a riot, or with any weapon or upon a public officer when upon duty;
any other misdemeanor; and any offense over which jurisdiction was
specifically conferred upon the police court. The police courts did not
have jurisdiction over actions involving the title to real property and
actions for false imprisonment, libel, malicious prosecution, criminal
conversation, seduction upon a promise to marry, actions of an
equitable nature, or admiralty causes.[Footnote 317]
Beginning in 1936, the District Court of the Virgin Islands had
original jurisdiction in federal cases and some local cases, as well as
appellate jurisdiction over the local courts. In 1936, the Organic Act
established the District Court of the Virgin Islands, granting it
jurisdiction over criminal cases arising under local or federal law,
cases in equity, cases in admiralty, cases of divorce and annulment of
marriage, cases at law involving sums exceeding $200, cases involving
title to real estate, and cases involving federal offenses committed on
the high seas on vessels belonging to U.S. citizens or corporations
when the offenders were found on or brought to the Virgin Islands.
[Footnote 318] The District Court of the Virgin Islands also had
concurrent jurisdiction with the police courts over civil cases in
which the sum did not exceed $200 and criminal cases in which the
punishment did not exceed a fine of $100 or imprisonment of 6 months,
as well as appellate jurisdiction over decisions of the police courts.
[Footnote 319] At the same time, the Organic Act authorized the local
legislature to provide for a local Superior Court and to transfer from
the District Court of the Virgin Islands to the Superior Court
jurisdiction over all cases other than those arising under federal law.
[Footnote 320]
The Revised Organic Act of 1954 provided that the District Court of the
Virgin Islands had the jurisdiction of a district court of the United
States in all causes arising under federal law, regardless of the sum
or value of the matter in controversy.[Footnote 321] The Revised
Organic Act also provided that the district court had general original
jurisdiction over all causes in the Virgin Islands, except that the
local courts had exclusive jurisdiction over civil actions in which the
matter in controversy did not exceed $500, criminal cases in which the
maximum punishment did not exceed $100 or imprisonment for 6 months, or
both, and all violations of police and executive regulations.[Footnote
322] The Act further authorized the local legislature to grant the
local courts additional jurisdiction, to be exercised concurrently with
the district court.[Footnote 323]
Over time, the Virgin Islands government granted the local courts
additional jurisdiction, which was exercised concurrently with the
district court. In 1976, Virgin Islands law provided that the newly-
named Territorial Court had concurrent jurisdiction over civil cases in
which the amount in controversy exceeded $500 but did not exceed
$50,000 and over criminal cases in which the punishment exceeded a fine
of $100 or imprisonment for 6 months but did not exceed imprisonment
for 1 year or a fine as prescribed by law.[Footnote 324] The same law
provided that 2 years after the effective date of the law, the
Territorial Court would assume jurisdiction, concurrent with the
district court, over criminal cases in which the maximum sentence did
not exceed imprisonment for 5 years or a fine as prescribed by law.
[Footnote 325] In 1981, local law expanded the civil jurisdiction of
the Territorial Court by increasing the maximum amount in controversy
from $50,000 to $200,000.[Footnote 326]
In 1984, Congress further defined the jurisdiction of the District
Court of the Virgin Islands and authorized the local legislature to
divest the district court of jurisdiction over local matters. Congress
amended the Organic Act, conferring upon the District Court of the
Virgin Islands the jurisdiction of a federal court, including diversity
jurisdiction;[Footnote 327] the jurisdiction of a bankruptcy court;
[Footnote 328] exclusive jurisdiction over cases involving income tax
laws applicable to the Virgin Islands;[Footnote 329] and concurrent
jurisdiction with the local courts over offenses against local law that
are based on the same underlying facts as offenses against federal law.
[Footnote 330] The amendments also granted the District Court of the
Virgin Islands jurisdiction over all causes in the Virgin Islands not
vested by local law in the local courts of the U.S. Virgin Islands,
except that the jurisdiction of the district court was not to extend to
civil cases in which the matter in controversy did not exceed the sum
of $500 or to criminal cases in which the maximum punishment did not
exceed a fine of $100 or imprisonment for 6 months, or both, and to
violations of local police and executive regulations.[Footnote 331] In
conjunction with this provision, the amendments authorized the
legislature of the Virgin Islands to vest in the local courts
jurisdiction over all causes in the Virgin Islands over which any
federal court did not have exclusive jurisdiction.[Footnote 332]
The U.S. Virgin Islands government subsequently took action to expand
the jurisdiction of the local courts and divest the district court of
jurisdiction over local matters. The local legislature provided that,
effective in 1991, the Territorial Court had jurisdiction over all
civil cases regardless of the amount in controversy, subject to the
original jurisdiction of the District Court of the Virgin Islands.
[Footnote 333] Effective in 1992, Virgin Islands law provided that the
Territorial Court had jurisdiction, subject to the concurrent
jurisdiction of the district court, over criminal cases in which the
punishment did not exceed imprisonment for 15 years or a fine
prescribed by law.[Footnote 334] Effective in 1994, the criminal
jurisdiction of the Territorial Court was further expanded, as Virgin
Islands law provided that the Territorial Court had jurisdiction over
all criminal cases, subject to the concurrent jurisdiction of the
district court over local offenses with the same underlying facts as
federal offenses.[Footnote 335] Thus, current law provides that the
District Court of the Virgin Islands has the jurisdiction of a district
court of the United States, including diversity jurisdiction; the
jurisdiction of a bankruptcy court; jurisdiction over all matters
relating to income tax laws applicable to the Virgin Islands; and
concurrent jurisdiction with the Superior Court over criminal cases
arising under local law in which the underlying facts are the same as
federal offenses.[Footnote 336]
Appeals:
Appeals from the District Court of the Virgin Islands to the U.S. Court
of Appeals:
Since 1917, decisions of the District Court of the Virgin Islands could
be appealed to the U.S. Court of Appeals for the Third Circuit. In
1917, after the United States acquired the Virgin Islands, Congress
passed a law providing that appeals were to be made to the U.S. Court
of Appeals for the Third Circuit.[Footnote 337] The Organic Act of 1936
provided that appeals from the District Court were to be as provided by
the law in force on the date of enactment.[Footnote 338] In 1948,
federal law provided that the U.S. Court of Appeals for the Third
Circuit had appellate jurisdiction over final and interlocutory
decisions of the District Court of the Virgin Islands.[Footnote 339]
The 1984 amendments to the Organic Act confirmed that such appellate
jurisdiction extended to decisions of the appellate division of the
district court, which had appellate jurisdiction over decisions of the
Superior Court.[Footnote 340] Once the Supreme Court of the Virgin
Islands became operational in 2007, this provision became moot. Thus,
current law provides that the U.S. Court of Appeals for the Third
Circuit has appellate jurisdiction over final and interlocutory
decisions of the District Court of the Virgin Islands.[Footnote 341]
Appeals from the District Court of the Virgin Islands to the U.S.
Supreme Court:
From 1948 until 1988, the U.S. Supreme Court had appellate jurisdiction
over certain decisions of the District Court of the Virgin Islands. In
1948, federal law provided that the U.S. Supreme Court had appellate
jurisdiction over any decision of the District Court of the Virgin
Islands that held a federal law unconstitutional in a case in which the
United States was a party.[Footnote 342] In 1988, however, Congress
repealed this provision.[Footnote 343] As a result, current law
provides that the decisions of the District Court of the Virgin Islands
may not be appealed directly to the U.S. Supreme Court.
Appeals from the Superior Court of the Virgin Islands:
From 1936 until 2007, decisions of the Superior Court of the Virgin
Islands could be appealed to the District Court of the Virgin Islands;
since 2007, the Supreme Court of the Virgin Islands has had appellate
jurisdiction over decisions of the Superior Court. The Organic Act of
1936 provided that the District Court of the Virgin Islands had
appellate jurisdiction over decisions of the local courts.[Footnote
344] The Revised Organic Act of 1954 again provided that the District
Court of the Virgin Islands had appellate jurisdiction over decisions
of the local courts to the extent prescribed by local law.[Footnote
345] By 1965, the Virgin Islands legislature had defined the appellate
jurisdiction of the district court over the decisions of the Superior
Court, providing that the district court had appellate jurisdiction
over Superior Court decisions in all civil cases, all juvenile and
domestic relations cases, and all criminal cases in which the defendant
was convicted, other than by guilty plea.[Footnote 346] In 1984,
federal law provided for an appellate division of the District Court of
the Virgin Islands, which was to consist of the chief judge of the
district court and two designated judges, provided that not more than
one of them was a judge of a court established by local law.[Footnote
347] The federal law also authorized the Virgin Islands legislature to
establish an appellate court,[Footnote 348] and in 2004, the Virgin
Islands legislature did so, establishing the Supreme Court of the
Virgin Islands.[Footnote 349] Once the Supreme Court became operational
in 2007, it assumed appellate jurisdiction over decisions of the
Superior Court.[Footnote 350]
Appeals from the Supreme Court of the Virgin Islands:
Since 2007, the U.S. Court of Appeals for the Third Circuit has had
appellate jurisdiction over the decisions of the Supreme Court of the
Virgin Islands. Federal law provides that the relations between the
federal and local courts with respect to appeals, certiorari, removal
of causes, and writs of habeas corpus are governed by the laws
respecting the relations between the federal and state courts; however,
the law provides that for the first 15 years following the creation of
the Supreme Court, the Third Circuit is to have jurisdiction to review
by writ of certiorari the decisions of such court.[Footnote 351] As
such, since 2007, when the Supreme Court became operational, the U.S.
Court of Appeals for the Third Circuit has exercised this jurisdiction.
In 2022, upon the expiration of the 15 years, local courts of the
Virgin Islands will have the same relationship to the federal judicial
system as do state courts. Of significance, final decisions of the
Supreme Court of the Virgin Islands will be reviewed by the U.S.
Supreme Court, at its discretion, by writ of certiorari where the
validity of a treaty or federal law is drawn into question; a
territorial statute is drawn into question on the ground of it being
repugnant to the U.S. Constitution, treaties, or federal law; or any
title, right, privilege, or immunity is specially set up or claimed
under the U.S. Constitution, treaties, federal, or commission held or
authority exercised under the United States.[Footnote 352]
Judges:
Both the number of judges of the District Court of the Virgin Islands
and the terms of appointment of those judges have increased over time.
The Organic Act of 1936 provided that the judge of the District Court
of the Virgin Islands was to be appointed by the President with the
advice and consent of the Senate and hold a term of 4 years unless
sooner removed by the President for cause.[Footnote 353] The Revised
Organic Act of 1954 increased the term of the judge to 8 years and
provided that the judge should receive the salary equal to that of
judges of U.S. district courts.[Footnote 354] In 1970, the District
Court of the Virgin Islands was allocated an additional district
judge,[Footnote 355] and in 1984, federal law increased the term of the
two judges of the district court to 10 years.[Footnote 356]
In addition to the judges appointed to sit on the District Court of the
Virgin Islands, other judges may be assigned to sit temporarily on the
court, and the population of judges eligible to be assigned to the
District Court of the Virgin Islands has increased over time. The
Revised Organic Act of 1954 provided that, whenever such an assignment
is necessary for the proper dispatch of the business of the district
court, the Chief Judge of the Third Circuit may assign a circuit or
district judge of the Third Circuit, or the Chief Justice of the United
States may assign any other U.S. circuit or district judge with the
consent of the judge and of the chief judge of that circuit, to serve
temporarily as a judge of the District Court of the Virgin Islands.
[Footnote 357] In 1970, federal law expanded the pool of judges that
the Chief Judge of the Third Circuit may assign to serve temporarily as
a judge of the District Court of the Virgin Islands to include judges
of the Municipal Court of the Virgin Islands.[Footnote 358] The 1984
federal law further expanded the pool of judges eligible to be assigned
by the Chief Judge of the Third Circuit to the district court to
include any judge of a court of record of the Virgin Islands
established by local law and a recalled senior judge of the District
Court of the Virgin Islands.[Footnote 359] Thus, current law provides
that, when such an assignment is necessary for the proper dispatch of
the business of the court, the chief judge of the Third Circuit may
assign a judge of a court of record of the Virgin Islands established
by local law, a circuit or district judge of the Third Circuit, or a
recalled senior judge of the District Court of the Virgin Islands; and
the Chief Justice of the United States may assign any other United
States circuit or district judge with the consent of the assigned judge
and the chief judge of that circuit, to serve temporarily as a judge of
the District Court of the Virgin Islands.[Footnote 360]
[End of section]
Appendix IX: GAO Contact and Staff Acknowledgments:
GAO Contact:
William O. Jenkins, Jr., (202) 512-8777 or jenkinswo@gao.gov.
Staff Acknowledgments:
In addition to the contact named above, Christopher Conrad, Assistant
Director, Chuck Bausell, Jenny Chanley, George Depaoli, Emil Friberg,
Jared Hermalin, Nancy Kawahara, Tracey King, Jeff Malcolm, Jan
Montgomery, Amy Sheller, and Adam Vogt made key contributions to this
report.
[End of section]
Footnotes:
[1] For purposes of this report, we discuss four insular areas”American
Samoa, the Commonwealth of the Northern Mariana Islands, Guam, and the
U.S. Virgin Islands, which are all jurisdictions under U.S.
sovereignty. In this report, we sometimes refer to American Samoa as a
U.S. territory, although there has not been enacted an organic act,
which would define its relationship to the United States.
[2] H.R. 4711, 109th Cong. (2006).
[3] Legislature of American Samoa, Report and Record of the Joint
Legislative Public Hearing on the Issues of Federal District Court
Authorization Transfer of Constitution Review Authority (Pago Pago,
American Samoa: Feb. 23-24, 2006). These hearings were conducted in the
Samoan language and translated into English.
[4] The district courts in U.S. insular areas are Article IV courts, as
they were established pursuant to Article IV of the U.S. Constitution,
which provides that ’the Congress shall have power to dispose of and
make all needful rules and regulations respecting the territory or
other property belonging to the United States—.“ Because Article I of
the U.S. Constitution provides that Congress has power ’to constitute
tribunals inferior to the Supreme Court,“ and because many tribunals
established by Congress were created pursuant to Article I, district
courts in U.S. insular areas are also sometimes called Article I
courts.
[5] This estimate includes U.S. citizens, U.S. nationals, and
foreigners. Neither the U.S. Census Bureau nor the American Samoa
Department of Commerce provides data on the number of all U.S. citizens
in American Samoa. In 2000, U.S. Census Bureau data indicated
that about 32,470 of the total population of 57,291 were born in
American Samoa, and thus U.S. nationals. However, the Census Bureau
data do not report the number of U.S. nationals who have become U.S.
citizens.
[6] A U.S. national is either a citizen or someone who ’owes permanent
allegiance to the United States.“ 8 U.S.C. § 1101(a)(21), (22).
Citizenship is derived either from the Fourteenth Amendment to the
Constitution (’All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United
States“) or from a specific statute that confers citizenship on the
inhabitants of an area that, although not a state, is under the
sovereignty of the United States. No such legislation conferring
citizenship has been enacted for American Samoa.
[7] Samoan matai signed the Cession of Tutuila and Aunu‘u in 1900 and
the Cession of Manu‘a Islands in 1904. Later, in 1925, the U.S.
acquired Swain‘s Island. 43 Stat. 1357 (1925).
[8] 45 Stat. 1253 (1929) (codified at 48 U.S.C. § 1661).
[9] 48 U.S.C. § 1661(c); Exec. Order No. 10,264, 16 Fed. Reg. 6419
(1951).
[10] 48 U.S.C. § 1662a.
[11] The Governor may serve two consecutive 4-year terms but is only
eligible for a third term after one full term has intervened. AM. SAMOA
CODE ANN. § 4.0107.
[12] Am. Samoa Const. art. III; Am. Samoa Code Ann. tit. 3.
[13] In 2006, the High Court of American Samoa had a total of 607 cases
filed, which included 162 criminal cases, 112 civil actions, 15
appellate cases, 11 matai (chief) title cases, and 27 land cases. The
family, drug, and alcohol division had a total of 21 cases.
[14] In 2006, the district court of American Samoa had a total of 7,689
cases filed.
[15] The Chief Justice and Associate Justice may be removed by the
Secretary of the Interior for cause. The district and associate judges
may be removed by the Chief Justice for cause.
[16] See Am. Samoa Const. art. III, § 3; AM. SAMOA CODE ANN. § 3.0220.
Three justices and two associate judges are needed for an appellate
division session. According to a judicial official, since at least one
of the justices has been involved with the lower court trial, that
justice cannot sit on the appeals. Therefore, federal judges travel to
American Samoa to sit on appellate division sessions, which are held
about once a year.
[17] The primary categories of land in American Samoa are freehold
land, individually owned native land, and family-owned communal land.
Freehold land, or lands included in court grants prior to 1900, may be
alienated to a person who has less than one-half native blood. However,
individually owned land and communal land, which is theoretically under
the control of the matai (or chiefs), may be alienated only to persons
with more than one-half native blood, and such land may be alienated to
a person with any nonnative blood only if the person (1) was born in
American Samoa, (2) is a descendent of a Samoan family, (3) lives with
Samoans as a Samoan, (4) has lived in American Samoa for more than 5
years, and (5) has officially declared an intention to remain in
American Samoa for life. The alienation of communal land also requires
the consent of the Governor. AM. SAMOA CODE ANN. § 37.0204.
[18] There have been three political status study commissions created
in American Samoa to study alternative forms of future political status
open to American Samoa. The first commission report was completed in
1970 and submitted to the American Samoa Legislature; the second report
was published by the Office of the Delegate at Large to Washington D.C.
in 1975; and the third report was published in January 2007 and
presented to the executive, legislative, and judicial branches of
government.
[19] Final Report, The Future Political Status Study Commission of
American Samoa (Jan. 2, 2007) pps. 43 and 46. An unorganized territory
is one for which the federal government has not provided self-
government by enacting an organic act or mutual agreement, such as a
covenant. An unincorporated territory is one that has not become fully
incorporated into the United States.
[20] American Samoa White Collar Crime Assessment, a Special Report to
the U.S. Department of the Interior, U.S. Department of Justice and
American Samoa Government (December 1994, redacted version).
[21] H.R. 4711,109th Cong. (2006).
[22] Article III of the U.S. Constitution provides that ’the judicial
power of the United States, shall be vested in one supreme court, and
in such inferior courts as the Congress may from time to time ordain
and establish. The judges, both of the supreme and inferior courts,
shall hold their offices during good behavior, and shall, at stated
times receive for their services a compensation which shall not be
diminished during their continuance in office.“
[23] A U.S. magistrate judge is a judicial officer of the district
court and is appointed by majority vote of the district judges of the
court to exercise jurisdiction over matters assigned by a statute as
well as those delegated by the district judges. A full-time magistrate
judge serves a term of 8 years. Duties assigned to magistrate judges by
district court judges vary from court to court. Magistrate judges may
handle certain pre-trial and post trial matters, as well as jury or
nonjury civil trials with the consent of the parties and misdemeanor
trials with the consent of the parties. District judges must preside
over cases involving felony charges.
[24] Pub. L. No. 95-157, 91 Stat. 1265 (1977); Covenant to Establish a
Commonwealth of the Northern Mariana Islands in Political Union with
the United States of America, Pub. L. No. 94-241, § 401, 90 Stat. 263
(1976).
[25] Pub. L. No. 630, 64 Stat. 384 (1950).
[26] Pub. L. No. 749, §§ 28, 29, 49 Stat. 1807, 1814 (1936).
[27] Federal law provides that the district court has concurrent
jurisdiction with the local courts over local offenses that are ’of the
same or similar character or part of, or based on, the same act or
transaction or two or more acts or transactions connected together or
constituting part of a common scheme or plan, if such act or
transaction or acts or transactions also constitutes or constitute an
offense or offenses against one or more statute over which the District
Court of the Virgin Islands has jurisdiction...“ 48 U.S.C. § 1612(c). As
such, if an individual engages in conduct that violates both federal
law and local law, that individual may be charged with both the federal
and local offense in the District Court of the Virgin Islands. For
example, if an individual, while engaged in the trafficking of
firearms, kills another person with premeditation, that individual may
be charged in the District Court of the Virgin Islands with both the
federal offense of firearms trafficking and the local offense of
murder.
[29] In 2004, 7 years before the expiration of the 15 years after the
establishment of the Supreme Court of Guam, Congress repealed the
provision providing the Ninth Circuit with temporary appellate
jurisdiction over decisions of the Supreme Court of Guam. Pub. L. No.
108-378, § 2, 118 Stat. 2206, 2208 (2004).
[30] See U.S. Const. art. III, § 2 (’Trial shall be held in the State
where the said Crimes shall have been committed; but when not committed
within any State, the Trial shall be at such Place or Places as the
Congress may by Law have directed“).
[31] United States v. Lee, 159 F. Supp. 2d 1241 (D. Haw. 2001).
[32] 18 U.S.C. § 3238. With respect to a federal criminal offense
committed by an American Samoan within one of the federal judicial
districts, rather than within American Samoa, venue is proper in the
judicial district where the crime was committed pursuant to federal
law.
[33] United States v. Lee, 472 F.3d 638 (9th Cir. 2006).
[34] Although venue for most cases arising in American Samoa has been
established pursuant to the ’first brought“ statute, venue may
otherwise be proper in a district in which part of the offense was
committed. For example, in United States v. Ofoia, eight residents of
American Samoa were charged in the U.S. District Court for the Middle
District of Georgia with defrauding AFLAC, which is headquartered in
Georgia. United States v. Ofoia, No. 4:03-cr-011 (M.D. Ga. filed Feb.
28, 2003).
[35] For example, in the District of Hawaii, the Criminal Section of
DOJ‘s Civil Rights Division prosecuted several individuals involved in
a sex trafficking operation in American Samoa. United States v. Kuo,
No. 1:06-cr-524 (D. Haw. filed Oct. 4, 2006); United States v. Kuo, No.
1:07-cr-225 (D. Haw. filed May 10, 2007). In the District of Columbia,
the Public Integrity Section of the DOJ‘s Criminal Division initiated
proceedings against two government officials in American Samoa,
charging, among other things, fraud and bribery. United States v.
Sunia, No. 1:07-cr-225 (D.D.C. filed Sept. 6, 2007).
[36] See 28 U.S.C. § 1391.
[37] See, e.g., Corp. of the Presiding Bishop of the Church of Jesus
Christ of Latter-Day Saints v. Hodel, 637 F. Supp. 1398 (D.D.C. 1986),
aff‘d by 830 F.2d 374 (D.C. Cir. 1987); Majhor v. Kempthorne, 518 F.
Supp. 2d 221 (D.D.C. 2007).
[38] A bankruptcy court is an operating unit of the district court.
[39] Maritime law is the body of law governing maritime commerce and
navigation, the transportation at sea of persons and property, and
marine affairs in general. See app. V for a detailed description of
admiralty and maritime jurisdiction of the High Court of American
Samoa.
[40] See 46 U.S.C. § 30511; 28 U.S.C. § 1404(a). For example, in a 2003
maritime case, a plaintiff filed actions based on the same incident in
both the U.S. District Court for the Southern District of California
and the High Court of American Samoa. 7 Am. Samoa 3d 139 (2003).
[41] GAO, American Samoa: Inadequate Management and Oversight
Contribute to Financial Problems, [hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO/NSIAD-92-64] (Washington, D.C.: Apr. 7, 1992). U.S.
Department of the Interior, Office of Inspector General, American
Samoa: Top Leadership Commitment Needed to Break the Cycle of Fiscal
Crisis, Report No. P-IN-AMS-0117-2003 (Washington, D.C.: September
2005).
[42] In March 1993, Governor Richard Lutali of American Samoa wrote a
letter to the Secretary of the Interior, Bruce Babbitt, to request
that, pursuant to 48 U.S.C. § 1666, Federal Bureau of Investigation
(FBI) agents and a DOJ prosecutor be detailed to the American Samoa
Government to investigate and prosecute public integrity and other
white-collar crimes.
[43] Department of Justice, American Samoa White Collar Crime
Assessment: A Special Report to the U.S. Department of the Interior,
U.S. Department of Justice and American Samoa Government, (December
1994, redacted version).
[44] Statement of A.P. Lutali, Governor of American Samoa, accompanied
by Malaetasi M. Togafau, Attorney General, and R. Wendell Harwell,
Territorial Auditor, before the House Resources Subcommittee on Native
American and Insular Affairs, Hearing on the U.S. Department of Justice
Assessment on White Collar Crime in American Samoa (Washington, D.C.:
Aug. 3, 1995).
[45] Pacific Islands Committee of the Judicial Council of the Ninth
Circuit, Report of the Pacific Islands Committee on Federal
Jurisdiction in American Samoa (Aug. 23, 1995) and Supplemental Report
of the Pacific Islands Committee, American Samoa Legislation (Dec. 15,
1995).
[46] The jurisdiction was limited to civil and criminal proceedings
that were (1) brought by the United States or an officer or an agency
thereof arising under the laws of the United States or seeking to
collect a debt pursuant to the Federal Debt Collection Procedures Act
of 1990, or (2) designated to transmit requests for international
judicial assistance arising from foreign judicial proceedings pursuant
to treaties or other international agreements to which the United
States is a party and which extend to American Samoa.
[47] See United States v. Lee, 159 F. Supp. 2d 1241 (D. Haw. 2001).
[48] United States. v. Kelemete, No. 1:06-cr-116 (D. Haw. filed Mar. 1,
2006).
[49] Recipients that expend $500,000 or more a year in federal awards
under more than one federal program are required by the Single Audit
Act to undergo a single audit. Single audits are audits of the
recipient organization”the government in the case of insular areas”that
focus on the recipient‘s internal controls and its compliance with laws
and regulations governing federal awards. 31 U.S.C. § 7501-7507; Office
of Management and Budget Circular No. A-133, Audits of States, Local
Governments, and Non-Profit Organizations.
[50] GAO, American Samoa: Accountability for Key Federal Grants Needs
Improvement, [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-05-41]
(Washington, D.C.: Dec. 17, 2004).
[51] GAO, U.S. Insular Areas: Economic, Fiscal, and Financial
Accountability Challenges, [hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO-07-119] (Washington, D.C.: Dec. 12, 2006).
[52] A material weakness is a significant deficiency, or a combination
of significant deficiencies, that result in more than a remote
likelihood that a material misstatement of the financial statements
will not be prevented or detected. A significant deficiency is a
control deficiency, or combination of control deficiencies, that
adversely affects the entity‘s ability to initiate, authorize, record,
process, or report financial data reliably in accordance with generally
accepted accounting principles such that there is more than a remote
likelihood that a misstatement of the entity‘s financial statements
that is more than inconsequential will not be prevented or detected.
[53] There is also some legal uncertainty about the current ability of
federal judges to issue search warrants for property in American Samoa
because it is outside of a federal judicial district. A proposed change
to the Federal Rules of Criminal Procedure, to be effective in December
2008, would authorize a magistrate judge in a district in which
activities related to the crime under investigation may have occurred
or in the District of Columbia to issue a search warrant for property
in American Samoa.
[54] Legislature of American Samoa, Report and Record of the Joint
Legislative Public Hearing (Feb. 23-24, 2006).
[55] American Samoa code provides that a person charged with an offense
carrying a maximum punishment of over 6 months of imprisonment shall be
tried by a jury unless he personally waives this right in writing or in
open court. The law also provides that the petit jury shall be
comprised of six persons, the jury verdict must be unanimous, and voir
dire of prospective jurors shall be conducted by the court. AM. SAMOA
CODE ANN. § 3.0232.
[56] Legislature of American Samoa, Report and Record of the Joint
Legislative Public Hearing (Feb. 23-24, 2006).
[57] The ethnic limitations apply to communal lands and individually
owned native lands, but not freehold lands.
[58] Letter from the Secretary of Samoan Affairs, American Samoa
Government, to GAO, dated October 12, 2007.
[59] 28 U.S.C. §§ 1861-1878.
[60] A federal law enforcement official suggested that rather than
establishing a federal court in American Samoa, one option would be to
designate the U.S. District Court of Hawaii as the proper venue for
federal cases arising in American Samoa and provide the U.S. District
Court of Hawaii with additional resources to handle such cases. As
such, cases arising in American Samoa would be heard by district judges
and juries in Hawaii.
[61] At that same time, the Judicial Conference of the United States‘
position was that if Congress determined to establish federal judicial
jurisdiction in American Samoa, and to commit sufficient resources to
create such jurisdiction, the conference would endorse the creation of
an Article I district court in American Samoa.
[62] Federal Public Defender officials we met with said that it is
unlikely that a court in American Samoa would reach the minimum 200
appointments per year required to appoint a Federal Public Defender in
American Samoa. In addition, these officials also indicated that it is
unlikely that, under the CJA provision that adjacent districts may
aggregate their appointments to establish eligibility, there would be a
sufficient CJA caseload to support opening of a staffed branch office
of the Federal Public Defender Organization (headquartered in Honolulu,
Hawaii) in American Samoa. In the past, the Federal Public Defender in
Hawaii has represented defendants from American Samoa when brought to
trial in the U.S. District Court of Hawaii.
[63] U.S. district courts, with the approval of the judicial council of
the circuit, must have a plan for furnishing representation for any
person financially unable to obtain adequate representation. Under this
plan, a judge can appoint counsel from a federal defender organization
authorized by the court or a panel of attorneys designated or approved
by the court”called a Criminal Justice Act (CJA) panel”to furnish legal
representation for those defendants who are financially unable to
obtain counsel. 18 U.S.C. § 3006A. Where a federal defender
organization is established, the CJA provides that panel attorneys be
appointed in a substantial proportion of the cases (defined by
guidelines as approximately 25 percent of the appointments annually in
a district).
[64] The Pacific Islands Committee is a standing committee of the
Judicial Council of the Ninth Circuit with an indefinite liaison
responsibility to the Judicial Conference of the U.S. Committee on
Federal-State Jurisdiction. The Pacific Islands Committee fulfills the
oversight responsibilities of the Ninth Circuit Judicial Council and
the Judicial Conference of the United States with respect to the
judiciaries of the territories and former trust territories in the
Pacific, including American Samoa. The specific responsibilities include
assisting in the development and provision for continuing judicial
education and court professional training, improvement of the
administration of justice in the courts of the northern Pacific, and
oversight responsibility for judicial education grants from the U.S.
Department of the Interior.
[65] Although case filings may grow over time, if the case filings in a
district court for American Samoa were similar to those in Guam and
CNMI, they would be fairly small. For example, according to the
Administrative Office for the U.S. Courts, 2007 Annual Report of the
Director: Judicial Business of the United States Courts, 38 civil and
169 criminal cases were filed in Guam in fiscal year 2007. For the same
period in CNMI, 47 civil and 28 criminal cases were filed. By
comparison, the District of Wyoming had the lowest total case filings
of any district in the 50 states in fiscal year 2007, with 289 civil
and 312 criminal filings.
[66] American Samoa would have to be a separate division within the
U.S. District Court of Hawaii as a means to maintain separate jury
pools between American Samoa and Hawaii.
[67] 18 U.S.C. § 3231.
[68] 28 U.S.C. §§ 3001, 3002(2).
[69] This rental cost was based on an estimated cost of construction of
approximately $56 million, assuming a 20-year amortization of the
investment.
[70] The housing plan, developed for the proposed new CNMI courthouse
for fiscal year 2009, includes about 68,000 rentable square feet for
one courtroom, judge‘s chambers, and office space for the district
court operations, U.S. Probation and Pretrial Services, the U.S.
Attorney‘s Office, and USMS.
[71] OMB Circular A-11, Appendix B requires that federal agencies fund,
with up-front payments, the cost of inherently governmental features of
the space they lease.
[72] Pro se law clerks assist judges in the management of cases filed
by litigants representing themselves.
[73] Because reliable estimates of the number of civil and criminal
cases were not known, AOUSC officials based their estimates on the
actual costs obligated in 2007 for the District Court of the Northern
Mariana Islands. Further, AOUSC officials stated that some district
court costs may vary by caseload.
[74] GSA officials estimated that a courthouse in American Samoa would
require about 32,000 rentable square feet, based on GSA‘s build-to-suit
lease prospectus developed for a new courthouse in CNMI.
[75] Because the number of civil and criminal cases was unknown, AOUSC
officials based their personnel and benefits and operational and
information technology cost estimates on a percentage of the actual
costs obligated in 2007 from the Probation and Pretrial Services Office
in Guam, which is a consolidated operation covering both district
courts located in CNMI and Guam. AOSUC officials determined the
percentage of resources used to support the District Court for the
Northern Mariana Islands as a basis for the estimate of costs for
an office in American Samoa.
[76] GSA estimated that probation and pretrial services would need
about 5,500 rentable square feet for its operations in American Samoa,
based on the CNMI build-to-suit lease prospectus.
[77] See 18 U.S.C. § 3006A.
[78] Because reliable estimates of the number of criminal and civil
cases for American Samoa were not known, the U.S. Attorney‘s Office
nonpersonnel cost data for scenario 1 were estimated based on fiscal
year 2005 and fiscal year 2006 obligation data for the U.S. Attorney‘s
Office for the District of Guam. This is a small U.S. Attorney‘s Office
and is responsible for the federal district courts in CNMI and Guam.
EOUSA officials told us that CNMI district court obligations could not
be separated out from Guam obligation data.
[79] GSA estimated that the U.S. Attorney‘s Office would need about
15,800 rentable square feet for its operations in American Samoa, based
on the CNMI build-to-suit lease prospectus.
[80] Additionally, USMS indicated that it may be necessary to pay
incentive bonuses to attract personnel to American Samoa, as well as
permanent change of duty station relocation costs.
[81] Cost data are partially based on prisoner transportation costs in
the USMS office in Guam.
[82] If radio towers and supporting radio infrastructure do not already
exist in American Samoa, then USMS officials said this may result in
additional costs.
[83] Based on GSA‘s proposed CNMI courthouse floor plan, USMS would be
allocated 13,935 rentable square feet. If rent ranged from $80 to $90
per square foot, USMS‘ rent could range between $1.1 and $1.3 million.
[84] If federal defendants were detained pretrial at the Bureau of
Prisons‘ detention facility in Hawaii, there is no charge to USMS for
housing. Given the capacity of this facility, USMS officials told us
that it may be able to absorb any American Samoan defendants. If
necessary, other detention facilities have been available for use
(e.g., the San Bernardino County, California jail, the Agana, Guam
detention facility, CNMI Department of Corrections, and Guam
Penitentiary). Assuming up to 50 American Samoan defendants in USMS
custody per year, for an average of 60 days each, the cost of housing
at these facilities may range up to $0.2 million based on fiscal year
2007 costs.
[85] Defendant transportation costs may vary depending upon the number
of court productions required.
[86] A 1999 study by Hanscomb and Associates recommended that GSA use a
territorial cost adjustment index of 1.53 for American Samoa. The
report advised that the index should be applied to GSA‘s General
Construction Cost Review Guide cost estimate for Washington, D.C.
Applying the 1.53 index to the space program developed for the proposed
CNMI courthouse and assuming a construction award of March 2010, the
estimated cost of construction is about $46.3 million. Pending research
of land values in American Samoa, GSA officials added a $2.9 million
land cost assumed for the proposed CNMI courthouse. Design and
construction management fees of $3.5 million and 3.3 million,
respectively, were also included.
[87] The Judicial Conference of the United States has no policy
position on this question, but the Pacific Islands Committee of the
Judicial Council of the Ninth Circuit has historically supported this
scenario as long as adequate resources and facilities would be provided
to the High Court.
[88] Proceedings of the Judicial Conference of the United States,
September 1996, pp. 57-58. GAO's report refers to this same idea as
establishing an Article IV court.
[89] Samoa, formerly known as Western Samoa, is a country consisting of
nine islands located about 80 miles northwest of American Samoa.
[90] Mary McCormick, American Samoa, in South Pacific Islands Legal
Systems 433 (Michael A. Ntumy ed., 1993).
[91] Arnold Leibowitz, Defining Status: A Comprehensive Analysis Of
United States Territorial Relationships 414 (1989).
[92] Id. at 414; Captain T.F. Darden, Historical Sketch Of The Naval
Administration Of The Government Of American Samoa xi (1952).
[93] Darden, supra note 4, at xi; Leibowitz, supra note 3, at 415. The
seventh island, Swains Island, is privately owned and was made part of
American Samoa by a joint resolution of the Congress approved on March
4, 1925. DARDEN, supra note 4, at xi; Leibowitz, supra note 3, at 415.
[94] 45 Stat. 1253 (1929) (codified at 48 U.S.C. § 1661).
[95] Exec. Order No. 10,264, 16 Fed.Reg. 6419 (1951).
[96] Secretary‘s Order No. 2657 (1951).
[97] Leibowitz, supra note 3, at 453.
[98] Am. Samoa Const., art. II, §§ 2, 4.
[99] Id. art. II, §§ 2, 3, 4.
[100] Id. art. IV, § 1 (1967).
[101] Secretary‘s Order No. 3009 (1977).
[102] Am. Samoa Const. art. II, § 9.
[103] Id. art. III, § 1.
[104] Pub. L. No. 98-213, § 12, 97 Stat. 1459, 1462 (1983) (codified at
48 U.S.C. § 1662a).
[105] Leibowitz, supra note 3, at 454.
[106] Pub. L. No. 95-556, 92 Stat. 2078 (1978).
[107] Frederick Harris Olsen, The Navy And The White Man‘s Burden:
Naval Administration Of Samoa 20 (1976).
[108] Id.
[109] Id. For example, Regulation No. 5 provided that the village
courts had civil jurisdiction over ’all civil matters between natives
when the amount in dispute does not exceed the sum of ten dollars, but
[the village courts] shall have no jurisdiction in any matter
concerning real property or rights affecting the same.“ Regulation No.
5, cited in Toomata v. Railey, 1 Am. Samoa 623 (1907).
[110] Olsen, supra note 19, at 20-21.
[111] Id. at 21.
[112] Darden, Supra note 4, at 12.
[113] Id. In 1930, the Fono proposed a judicial commission composed of
Samoans, intended to handle disputes related to land and matai titles.
The Governor created the commission, but after 2 years, the Governor
noted that all such cases had been brought to the High Court. Captain
J.A.C. Gray, Amerika Samoa: A History Of American Samoa And Its United
States Naval Administration 237 (1960); OLSEN, supra note 19, at 100.
[114] United States Archives, Records Of The Government Of American
Samoa, 1900-1958.
[115] See Leibowitz, supra note 3, at 451. In 1960, American Samoa
adopted a constitution that provided that any change to the laws of
American Samoa respecting the courts, including their jurisdiction,
organization, and operation, must be enacted by the legislature and
approved by the Governor and the Secretary of the Interior. See id. at
421 (citing Am. Samoa Const. art. III, § 3 (1960)). In 1967, however,
when American Samoa revised its constitution, it deleted the review
authority of the Governor and Secretary of the Interior over changes to
the court system. AM. SAMOA CONST. art. III (1967); see also Leibowitz,
supra note 3, at 421.
[116] See, e.g., Foster v. Fa‘amuli, 4 Am. Samoa 3 (1969).
[117] See In re: Beaver Family Trust, 17 Am. Samoa 2d 9 (1990)
(discussing Pub. L. 16-28, which deleted references in the American
Samoa code to a probate division of the High Court).
[118] Am. Samoa Code Ann. § 3.0501.
[119] Id. § 3.0502.
[120] Vessel Fijian Swift v. Trial Division of the High Court of
American Samoa, 4 Am. Samoa 983, 997 (1975).
[121] Id. § 3.0208(a)(3); see also Meaamaile v. American Samoa, 550 F.
Supp. 1277 (D. Haw. 1982). In admiralty and maritime law, in rem
jurisdiction is the court‘s jurisdiction over a vessel, such that the
vessel itself is made the defendant in order to enforce a lien, and in
personam jurisdiction is the court‘s jurisdiction over a person, such
that a legal action may be brought against the owner or master of a
ship. See Meaamaile, 550 F. Supp. 1277.
[122] Meaamaile, 550 F. Supp. 1277.
[123] See, e.g., In re: Voyager, 23 Am. Samoa 2d 47 (1992) (holding
that the High Court has no jurisdiction to grant relief under the
federal limitations-of-liability statute).
[124] 46 U.S.C. § 31301 (defining the High Court of American Samoa as a
’district court“ for the purposes of the statute); see also United
Airlines Employees‘ Credit Union v. The M/V Sans End, 15 Am. Samoa 2d
95 (1990) (holding that the High Court has jurisdiction to enforce a
preferred mortgage lien under federal law).
[125] 7 U.S.C. § 87f(h).
[126] 7 U.S.C. § 136(i).
[127] 7 U.S.C. § 2146(c); 15 U.S.C. § 1825(d)(6).
[128] 7 U.S.C. § 7736(a); 7 U.S.C. § 8314(c).
[129] 21 U.S.C. § 674.
[130] Am. Samoa Code Ann. § 3.0208(a).
[131] Id. § 3.0208(b).
[132] Id. § 3.0502(a).
[133] Id. § 3.0208(c).
[134] Id. § 3.0302.
[135] See, e.g., American Samoa v. Willis, 1 Am. Samoa 635 (1911).
[136] See, e.g., Toomata v. Railey, 1 Am. Samoa 623 (1907).
[137] See, e.g., In re: Matai Title Alalamua, 4 Am. Samoa 974 (1974).
[138] See, e.g., Toomata v. Railey, 1 Am. Samoa 623 (1907)
[139] Am. Samoa Code Ann. §§ 3.0208(c), 3.0309.
[140] Id. § 3.0309.
[141] See Corp. of Presiding Bishop of Church of Jesus Christ of Latter-
Day Saints v. Hodel, 830 F.2d 374, 378 (D.C. Cir. 1987).
[142] See id.; see also Leibowitz, supra note 3, at 419.
[143] Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day
Saints v. Hodel, 830 F.2d at 384.
[144] King v. Morton, 520 F.2d 1140 (D.C. Cir. 1975).
[145] Id. at 1142.
[146] Id. at 1143.
[147] Id. at 1144.
[148] Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day
Saints v. Hodel, 637 F. Supp. 1398 (D.D.C. 1986), aff‘d 830 F.2d 374
(D.C. Cir. 1987).
[149] Id.
[150] Olsen, supra note 19, at 21. The title of Commandant was changed
to Governor in 1905. Darden, supra note 4, at 7.
[151] United States Archives, supra note 26.
[152] Darden, supra note 4, at 11.
[153] Olsen, supra note 19, at 20-21.
[154] Darden, supra note 4, at 11; United States Archives, supra note
26. The Chief Justice was a civilian appointed by the Secretary of the
Navy from 1931 until 1951, when administration of American Samoa
transferred to the Secretary of Interior, except from 1942 until 1946,
when, during the period of military government, the Chief Justice was a
naval officer. Darden, supra note 4, at 11.
[155] Gray, supra note 25, at 232; Darden, supra note 4, at 8, 11;
United States Archives, supra note 26; Olsen, supra note 19, at 100.
[156] Olsen, supra note 19, at 100; DARDEN, supra note 4, at 11; GRAY,
supra note 25, at 232. The Attorney General was a naval officer with
legal training that served as government counsel, secretary of Samoan
affairs, government secretary, collector of taxes and revenues,
passport officer, sheriff, prison supervisor, manager of the copra
fund, and later, chairman of the Board of Samoan Industries, and
legislative counsel and administrative officer of the Fono of American
Samoa. Gray, supra note 25, at 232.
[157] Leibowitz, supra note 3, at 451.
[158] See id. at 452.
[159] Am. Samoa Pub. L. No. 7-36 (1962) (codified at AM. SAMOA CODE
ANN. § 3.1001).
[160] Am Samoa Code Ann. § 3.0220.
[161] Id. § 3.1010(a).
[162] Id. § 3.1001(a).
[163] Id. § 3.1004(d). The associate judges are also subject to
mandatory retirement at age 65, unless waived by the Governor. Id.
[164] See id. § 3.1004.
[165] See Charles Timothy Morgan, Some Observations on the Judiciary in
American Samoa, 18 UCLA L. Rev. 581 (1970-71).
[166] Am. Samoa Code Ann. § 3.0220.
[167] Id. 80 Id.
[168] Am. Samoa Code Ann. § 3.0221.
[169] Id. § 3.0240.
[170] Id.
[171] Id. § 3.0241.
[172] Id. § 3.0240.
[174] Id. § 3.0241.
[175] Id. § 3.0230(a).
[176] Id. § 3.0230(b).
[177] Id. § 3.0231.
[178] Id. § 3.0502(c).
[179] Id. § 3.1010(a).
[180] Id. § 3.1010(c).
[181] Id. § 3.1010(a).
[182] N. MAR. I. CONST. art. XXII, § 3.
[183] Arnold Leibowitz, Defining Status: A Comprehensive Analysis Of
United States Territorial Relationships 426 (1989); Bruce Ottle, The
Commonwealth of the Northern Mariana Islands, in South Pacific Islands
Legal Systems 540 (Michael A. Ntumy ed.,1993).
[184] Stanley Laughlin, The Law Of United States Territories And
Affiliated Jurisdictions 426 (1995); Ottle, supra note 2, at 540.
[185] Laughlin, supra note 3, at 427; Leibowitz, supra note 2, at 522;.
[186] Laughlin, supra note 3, at 427; Leibowitz, supra note 2, at 522;
Ottle, supra note 2, at 541.
[187] Laughlin, supra note 3, at 427.
[188] Ottle, supra note 2, at 428.
[189] Laughlin, supra note 3, at 428; Leibowitz, supra note 2, at 525.
[190] Laughlin, supra note 3, at 428; Leibowitz, supra note 2, at 526.
[191] Laughlin, supra note 3, at 428-29; Leibowitz, supra note 2, at
526-27; Ottle, supra note 2, at 541.
[192] Laughlin, supra note 3, at 429; Leibowitz, supra note 2, at 527-
30.
[193] Laughlin, supra note 3, at 430; Leibowitz, supra note 2, at 529-
530.
[194] Covenant to Establish a Commonwealth of the Northern Mariana
Islands in Political Union with the United States of America, Pub. L.
No. 94-241, 90 Stat. 263 (1976).
[195] Id. art. III, 90 Stat. at 265-66.
[196] Id. art. II, 90 Stat. at 264-65.
[197] Id. art. IV, 90 Stat. at 266-67.
[198] N. Mar. I. Const. (1977), reprinted in Howard P. Willens & Deanne
C. Siemer, The Constitution of the Northern Mariana Islands:
Constitutional Principles and Innovation in a Pacific Setting, 65
Geo.L.J. 1373 (1977) [hereinafter N. Mar. I. Const.].
[199] Leibowitz, supra note 2, at 536; Ottle, supra note 2, at 541.
[200] The original jurisdiction of U.S. district courts is provided in
federal law and includes, for example, federal question jurisdiction,
which is jurisdiction over civil cases arising under the U.S.
Constitution, an act of Congress, or a treaty, and diversity
jurisdiction, which is jurisdiction over civil cases filed based on the
’diversity of citizenship“ of the litigants, such as between citizens
of different states or between U.S. citizens and those of another
country, in which the matter in controversy has a sum or value that
exceeds $75,000. 28 U.S.C. §§ 1331, 1332.
[201] Pub. L. No. 95-157, § 2(a), 91 Stat. 1265, 1266 (1977) (codified
as amended at 48 U.S.C. § 1821).
[202] Id. § 2(b), 91 Stat. at 1266.
[203] Id. § 3, 91 Stat. at 1266. The law provided that the appellate
division of the district court was to consist of the district court
judge and two other judges to be designated by the district court judge
from among the judges assigned to the court, provided that not more
than one of them was a judge of a court of record of the Northern
Mariana Islands. Id.
[204] N. Mar. I. Const. art. IV, § 2.
[205] N. Mar. I. Const. art. IV, § 2.
[206] 1978 N. Mar. I. Pub. L. 1-5.
[207] 1982 N. Mar. I. Pub. L. 3-14, § 2.
[208] 1988 N. Mar. I. Pub. L. 6-25, §§ 3201, 3202.
[209] Id. §§ 3101, 3102.
[210] Diversity jurisdiction is described in 28 U.S.C. § 1332 and
includes jurisdiction over civil actions in which the matter in
controversy exceeds the sum or value of $75,000 and that are between
citizens of different states, citizens of a state and citizens of a
foreign state, citizens of different states and in which citizens of a
foreign state are additional parties, or a foreign state as plaintiff
and citizens of a state or different states.
[211] U.S.C. § 1332. 30 Pub. L. No. 98-454, § 902, 98 Stat. 1732, 1744
(1984) (codified at 48 U.S.C. § 1822).
[212] Pub. L. No. 95-157, § 4(b), 91 Stat. 1265, 1267 (1977).
[213] See 28 U.S.C. §§ 1291, 1292, 1294.
[214] Sablan v. Santos, 634 F.2d 1153 (9th Cir. 1980). The court found
that the provision stating that the portions of title 28 that applied
to Guam also applied to the Northern Mariana Islands is made subject to
Article IV of the Covenant, which authorizes the Northern Mariana
Islands to determine the appellate jurisdiction of the District Court.
Id. at 1155. As a result, the court held that, although the U.S. Court
of Appeals had appellate jurisdiction over decisions of the District
Court of Guam, the Northern Mariana Islands had the authority to
determine that the same provision did not apply to the Northern Mariana
Islands and that, rather, the appellate division of the District Court
for the Northern Mariana Islands had appellate jurisdiction over the
trial division of the District Court for the Northern Mariana Islands.
Id.
[215] Pub. L. No. 98-454, § 903, 98 Stat. at 1744.
[216] Id.; see also Gioda v. Saipan Stevedoring Co., 855 F.2d 625 (9th
Cir. 1988).
[217] Pub. L. No. 98-454, § 903, 98 Stat. at 1745.
[218] Even after the Supreme Court was established, the appellate
division of the District Court retained jurisdiction over appeals that
were pending at the time of the establishment of the Supreme Court. See
Wabol v. Villacrusis, 958 F.2d 1450 (9th Cir. 1992).
[219] 28 U.S.C. §§ 1291, 1292, 1294.
[220] Pub. L. No. 95-157, § 4(b), 91 Stat. 1265, 1267 (1977).
[221] See 28 U.S.C. § 1252, repealed by Pub. L. No. 100-352, § 1, 102
Stat. 662 (1988).
[222] Pub. L. No. 100-352, § 3, 102 Stat. 662 (1988).
[223] Pub. L. No. 95-157, § 3, 91 Stat. at 1266.
[224] 1978 N. Mar. I. Pub. L. 1-5.
[225] Pub. L. No. 98-454, § 903, 98 Stat. 1732, 1745 (1984).
[226] 1988 N. Mar. I. Pub. L. 6-25, §§ 3101, 3102. Pending appeals
continued to be heard by the appellate division of the District Court
for the Northern Mariana Islands. See Wabol, 958 F.2d 1450.
[227] Pub. L. No. 95-157, § 4, 91 Stat. at 1266 (codified at 48 U.S.C.
§ 1824).
[228] 28 U.S.C. § 1257.
[229] Pub. L. No. 95-157, § 1(b)(1), 91 Stat. at 1265.
[230] Pub. L. No. 98-454, § 901(a), 98 Stat. 1732, 1744 (1984).
[231] 48 U.S.C. § 1821(b)(1).
[232] Pub. L. No. 95-157, § 1(b)(2), 91 Stat. at 1265.
[233] Pub. L. No. 98-454, § 901(b), 98 Stat. 1732, 1744 (1984).
[234] 48 U.S.C. § 1821(b)(2).
[235] Guam Code. Ann. tit. 1, §706.
[236] Arnold Leibowitz, Defining Status: A Comprehensive Analysis Of
United States Territorial Relationships 315 (1989); Mary McCormick,
Guam, in South Pacific Islands Legal Systems 518, 518 (1993).
[237] Stanley Laughlin, The Laws Of United States Territories And
Affiliated Jurisdictions 399 (1995); Leibowitz, supra note 2, at 316;
McCormick, supra note 2, at 518.
[238] Laughlin, supra note 3, at 400; Leibowitz, supra note 2, at 316.
[239] Laughlin, supra note 3, at 400; Leibowitz, supra note 2, at 318-
19; McCormick, supra note 2, at 518.
[240] Laughlin, supra note 3, at 401-02; Leibowitz, supra note 2, at
323.
[241] Pub. L. No. 630, § 3, 64 Stat. 384, 384 (1950).
[242] Id. § 4, 64 Stat. at 384.
[243] Id. § 10, 64 Stat. at 387.
[244] Id. § 7, 64 Stat. at 387.
[245] Id. § 22, 64 Stat. at 389-90.
[246] Captain J.A.C. Gray, Amerika Samoa: A History Of American Samoa
And Its United States Naval Administration 258 (1960); McCormick, supra
note 2, at 519.
[247] Pub. L. No. 90-497, § 6, 82 Stat. 842, 842-43 (codified at 48
U.S.C. § 1422).
[248] Pub. L. No. 92-271, § 1, 86 Stat. 118, 118 (codified at 48 U.S.C.
§ 1711).
[249] Pub. L. No. 94-584, § 2, 90 Stat. 2899, 2899 (1976).
[250] McCormick, supra note 2, at 519.
[251] The original jurisdiction of U.S. district courts is provided in
federal law and includes, for example, federal question jurisdiction,
which is jurisdiction over civil cases arising under the U.S.
Constitution, an act of Congress, or a treaty, and diversity
jurisdiction, which is jurisdiction over civil cases filed based on the
’diversity of citizenship“ of the litigants, such as between citizens
of different states or between U.S. citizens and those of another
country, in which the matter in controversy has a sum or value that
exceeds $75,000. 28 U.S.C. §§ 1331, 1332.
[252] Pub. L. No. 630, § 22(a), 64 Stat. 384, 389-90 (1950).
[253] Id.
[254] Guam Pub. L. No. 17, § 1 (1951), cited in Corn v. Guam Coral Co.,
318 F.2d 622, 624 (9th Cir. 1963).
[255] Id. In 1958, Congress approved this measure by amending section
22(a) of the Organic Act to require that appeals to the District Court
be heard by an appellate division consisting of three judges. The
judges were to consist of the district court judge and two other judges
to be designated by the district court judge from among the judges
assigned to the court, provided that not more than one of them is a
judge of a court of record of Guam. Pub. L. No. 85-444, § 2, 72 Stat.
178, 179 (1958).
[256] Guam Pub. L. No. 12-85 (1974), cited in Territory of Guam v.
Olsen, 431 U.S. 195, 197 (1977).
[257] Id. The law does not explicitly state that the jurisdiction of
the Superior Court over cases arising under local law is exclusive of
the district court. See id. However, because the district court only
has jurisdiction over cases arising under local law if such
jurisdiction is not transferred to courts created by the Guam
legislature, and the Guam legislature created local courts with
jurisdiction over cases arising under local law, the District Court
does not have jurisdiction over such cases. See Agana Bay Development
Co. v. Supreme Court of Guam, 529 F.2d 952, 953 (9th Cir. 1976), rev‘d
sub nom. on other grounds, Guam v. Olsen, 540 F.2d 1011 (9th Cir. 1976)
(en banc), aff‘d, 431 U.S. 195 (1977).
[258] Guam Pub. L. No. 12-85 (1974), cited in Territory of Guam v.
Olsen, 431 U.S. at 197-98.
[259] Guam v. Olsen, 540 F.2d at 1012 (en banc), aff‘d, 431 U.S. 195
(1977).
[260] Pub. L. No. 98-454, § 801, 98 Stat. 1732, 1742 (1984).
[261] Id.
[262] Diversity jurisdiction is described in 28 U.S.C. § 1332 and
includes jurisdiction over civil actions in which the matter in
controversy exceeds the sum or value of $75,000 and that are between
citizens of different states, citizens of a state and citizens of a
foreign state, citizens of different states and in which citizens of a
foreign state are additional parties, or a foreign state as plaintiff
and citizens of a state or different states. 28 U.S.C. § 1332.
[263] Pub. L. No. 95-598, § 335, 92 Stat. 2549, 2680 (1978).
[264] Pub. L. No. 98-454, § 801, 98 Stat. at 1741.
[265] Guam Pub. L. No. 21-147 (codified in part at GUAM CODE ANN. tit.
7, § 3101).
[266] Pub. L. No. 108-378, § 1, 118 Stat. 2206, 2206-07 (2004).
[267] 48 U.S.C. § 1424(b).
[268] Pub. L. No. 630, § 23(a), 64 Stat. 384, 390 (1950).
[269] Pub. L. No. 248, §§ 48, 49, 50, 65 Stat. 710, 726-27 (1951)
(codified at 28 U.S.C. §§ 1291, 1292, 1294).
[270] Corn v. Guam Coral Co., 318 F.2d 622 (9th Cir. 1963).
[271] Pub. L. No. 98-454, § 801, 98 Stat. 1732, 1743 (1984) (codified
at 48 U.S.C. § 1424-3(c)).
[272] U.S.C. §§1291, 1292, 1294.
[273] Pub. L. No. 630, § 23(b), 64 Stat. at 390.
[274] Pub. L. No. 248, § 47, 65 Stat. 710, 726 (1951), repealed by Pub.
L. No. 100-352, § 1, 102 Stat. 662 (1988).
[275] Pub. L. No. 100-352, § 3, 102 Stat. 662 (1988).
[276] Pub. L. No. 630, § 22(a), 64 Stat. at 389-90.
[277] Guam Pub. L. No. 17, § 1 (1951), cited in Corn v. Guam Coral Co.,
318 F.2d 622, 624 (9th Cir. 1963).
[278] Pub. L. No. 98-454, § 801, 98 Stat. 1732, 1742 (1984).
[279] See id. (codified as amended at 48 U.S.C. § 1424-3(a)).
[280] Guam Pub. L. No. 21-147 (codified in part at GUAM CODE ANN. tit.
7, § 3101).
[281] Pub. L. No. 108-378, § 1, 118 Stat. 2206 (2004) (codified at 48
U.S.C. § 1424-1(a)(2)).
[282] Pub. L. No. 98-454, § 801, 98 Stat. 1732, 1742 (1984) (codified
as amended at 48 U.S.C. § 1424-2).
[283] See, e.g., EIE Guam Corp. v. Supreme Court of Guam, 191 F.3d 1123
(9th Cir. 1999).
[284] Pub. L. No. 108-378, § 2, 118 Stat. 2206, 2208 (2004).
[285] 48 U.S.C. § 1424-2.
[286] 28 U.S.C. § 1257.
[287] Pub. L. No. 630, § 24(a), 64 Stat. 384, 390 (1950).
[288] Pub. L. No. 85-444, § 3, 72 Stat. 178, 179 (1958).
[289] Pub. L. No. 98-454, § 802, 98 Stat. 1732, 1743 (1984) (codified
at 48 U.S.C. § 1424b(a)).
[290] Pub. L. No. 630, § 24(a), 64 Stat. 384, 390 (1950).
[291] Pub. L. No. 85-444, § 3, 72 Stat. 178, 179 (1958).
[292] Pub. L. No. 98-454, § 802, 98 Stat. 1732, 1743 (1984).
[293] 48 U.S.C. § 1424b(a).
[294] Arnold Leibowitz, Defining Status: A Comprehensive Analysis Of
United States Territorial Relationships 237-38 (1989).
[295] Id.
[296] Id. at 242-43.
[297] Id.
[298] Id. at 233.
[299] Pub. L. No. 380, § 1, 39 Stat. 1132 (1917); Leibowitz, supra note
1, at 253.
[300] Pub. L. No. 380, § 2, 39 Stat. at 1132.
[301] Leibowitz, supra note 1, at 253.
[302] Pub. L. No. 640, 44 Stat. 1234 (1927).
[303] Exec. Order No. 5566 (Feb. 27, 1931), cited in LEIBOWITZ, supra
note 1, at 255.
[304] Pub. L. No. 749, §§ 5, 6, 7, 49 Stat. 1807, 1807-08 (1936).
[305] Id. § 20, 49 Stat. at 1812.
[306] Id. § 25, 49 Stat. at 1813.
[307] Pub. L. No. 517, § 5, 68 Stat. 497, 498 (1954).
[308] Pub. L. No. 90-496, § 4, 82 Stat. 837, 837 (1968).
[309] Pub. L. No. 92-271, § 1, 86 Stat. 118, 118 (1972).
[310] Pub. L. No. 94-584, 90 Stat. 2899 (1976).
[311] Stanley Laughlin, The Laws Of United States Territories And
Affiliated Jurisdictions 380 (1995).
[312] The original jurisdiction of U.S. district courts is provided in
federal law and includes, for example, federal question jurisdiction,
which is jurisdiction over civil cases arising under the U.S.
Constitution, an act of Congress, or a treaty, and diversity
jurisdiction, which is jurisdiction over civil cases filed based on the
’diversity of citizenship“ of the litigants, such as between citizens
of different states or between U.S. citizens and those of another
country, in which the matter in controversy has a sum or value that
exceeds $75,000. 28 U.S.C. §§ 1331, 1332.
[313] Pub. L. No. 380, § 2, 39 Stat. 1132 (1917).
[314] Carty v. Beech Aircraft Corp., 679 F.2d 1051, 1054 (3d Cir. 1982)
(citing Ordinance enacted by Colonial Council for St. Thomas and St.
John, Dec. 8, 1921 and Ordinance enacted by Colonial Council of St.
Croix, Aug. 6, 1921).
[315] Id.
[316] Id.
[317] Id.
[318] Pub. L. No. 749, §§ 28, 29, 49 Stat. 1807, 1814 (1936).
[319] Id. § 28, 49 Stat. at 1814.
[320] Id. § 25, 49 Stat. at 1813.
[321] Pub. L. No. 517, § 22, 68 Stat. 497, 506 (1954).
[322] Id. §§ 22, 23, 68 Stat. at 506.
[323] Id. § 23, 68 Stat. at 506.
[324] 1976 V.I. Sess. Laws 188. The local court was reorganized and
renamed several times. In 1957, the three police courts were combined
into two municipal courts: the Municipal Court of Saint Croix and the
Municipal Court of Saint Thomas. In 1965, the two municipal courts were
combined into one municipal court: the Municipal Court of the Virgin
Islands. In 1976, the name of the Municipal Court of the Virgin Islands
was changed to the Territorial Court, and in 2004, the name was again
changed to the Superior Court. V.I. CODE ANN. tit. 4, § 2 note; see
also Government of the Virgin Islands v. Bryan, 738 F. Supp. 946 , 948
(D.V.I. 1990).
[325] See Government of the Virgin Islands v. Bryan, 738 F. Supp. at
948.
[326] 1981 V.I. Sess. Laws 260.
[327] Diversity jurisdiction is described in 28 U.S.C. § 1332 and
includes jurisdiction over civil actions in which the matter in
controversy exceeds the sum or value of $75,000 and that are between
citizens of different states, citizens of a state and citizens of a
foreign state, citizens of different states and in which citizens of a
foreign state are additional parties, or a foreign state as plaintiff
and citizens of a state or different states. 28 U.S.C. § 1332.
[328] Pub. L. No. 98-454, § 703(a), 98 Stat. 1732, 1738 (1984). A
previous law had conferred upon the district court the jurisdiction of
a bankruptcy court. Pub. L. No. 95-598, § 336, 92 Stat. 2549, 2680
(1978).
[329] Pub. L. No. 98-454, § 703(a), 98 Stat. at 1738.
[330] Id. The law provides that the District Court of the Virgin
Islands has concurrent jurisdiction with the local court over offenses
against local law that are ’of the same or similar character or part
of, or based on, the same act or transaction or two or more acts or
transactions connected together or constituting part of a common scheme
or plan, if such act or transaction or acts or transactions also
constitutes or constitute an offense or offenses against one or more of
the statutes over which the District Court of the Virgin Islands has
jurisdiction.“ Id.
[331] Id. § 703(a), 98 Stat. at 1738.
[332] Id. § 702, 98 Stat. at 1738 (codified at 48 U.S.C. § 1611(b)).
[333] 1990 V.I. Sess. Laws 271; see Callwood v. Enos, 230 F.3d 627 (3d
Cir. 2000).
[334] 1985 V.I. Sess. Laws 464, § 3, amended by 1985 V.I. Sess. Laws 3,
§ 1, amended by 1986 V.I. Sess. Laws 236, § 107, amended by 1991 V.I.
Sess. Laws 58 (codified as amended at V.I. CODE ANN. tit. 4, § 76(b)).
[335] 1985 V.I. Sess. Laws 464, § 3, amended by 1985 V.I. Sess. Laws 3,
§ 1, amended by 1986 V.I. Sess. Laws 236, § 107, amended by 1991 V.I.
Sess. Laws 58, amended by 1993 V.I. Sess. Laws 214 (codified as amended
at V.I. Code Ann. tit. 4, § 76(b)); see also Virgin Islands v.
Colbourne, 1994 WL 737179 (V.I. 1994); Callwood, 230 F.3d at 631.
[336] 48 U.S.C. § 1612.
[337] Pub. L. No. 389, § 2, 39 Stat. 1132, 1132-33 (1917).
[338] Pub. L. No. 749, § 30, 49 Stat. 1807, 1814 (1936).
[339] Pub. L. No. 646, §§ 1291, 1292, 1294, 62 Stat. 869, 929-30 (1948)
(codified at 28 U.S.C. §§ 1291, 1292, 1294).
[340] Pub. L. No. 98-454, § 705, 98 Stat. 1732, 1740 (1984).
[341] 28 U.S.C. §§ 1291, 1292, 1294.
[342] Pub. L. No. 646, § 1252, 62 Stat. at 928 (codified as amended at
28 U.S.C. § 1252), repealed by Pub. L. No. 100-352, § 1, 102 Stat. 662,
662 (1988).
[343] Pub. L. No. 100-352, § 3, 102 Stat. 662, 662 (1988).
[344] Pub. L. No. 749, § 32, 49 Stat. 1807, 1815 (1936).
[345] Pub. L. No. 517, § 22, 68 Stat. 497, 506 (1954).
[346] 1965 V.I. Sess. Laws 7. 54 Pub. L. No. 98-454, § 705, 98 Stat.
1732, 1739 (1984).
[347] Id. § 702, 98 Stat. at 1737.
[348] 2004 V.I. Sess. Laws 6687.
[349] Pending appeals continued to be heard by the appellate division
of the District Court of the Virgin Islands.
[350] U.S.C. § 1613a(d).
[351] Pub. L. No. 98-454, § 704, 98 Stat. at 1739 (codified as amended
at 48 U.S.C. § 1613).
[352] 28 U.S.C. § 1257.
[353] Pub. L. No. 749, § 26, 49 Stat. 1807, 1813 (1936).
[354] Pub. L. No. 517, § 24, 68 Stat. 497, 506-07 (1954).
[355] Pub. L. No. 91-272, § 3, 84 Stat. 294, 296-97 (1970).
[356] Pub. L. No. 98-454, § 706(a), 98 Stat. at 1740 (codified at 48
U.S.C. § 1614(a)).
[357] Pub. L. No. 517, § 24, 68 Stat. at 506-07.
[358] Pub. L. No. 91-272, § 3(b), 84 Stat. at 296-97.
[359] Pub. L. No. 98-454, § 706(a), 98 Stat. at 1740.
[360] 48 U.S.C. § 1614(a).
[End of section]
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