dissenting.
Throughout the history of its involvement in American Samoa, the United States Government has recognized the importance of Samoan customs and traditions. Among the foremost of these are the communal land system and tpe mot&i system. In support of this contention I refer to the Cession of Tutqila and Aunu'u, April 17, 1900:
"3, The chiefs of the towns will be entitled to retain their individual control of the separate towns, if that control is in accordance with the laws of the United States of America *7concerning Tutuila, and if not obstructive to the peace of the people and the advancement of civilization of the people, subject also to the supervision and instruction of the saqd Government...."
Further support is found in the Samoan Bill of Rights:
Section 3. POLICY PROTECTIVE LEGISLATION:
It shall be the policy of the Government of American Samoa to protect persons of Samoan ancentry against alienation of their lands and the destruction of the Samoan way of life and language, contrary to their best-interests. Such legislation as may be necessary may be enacted to protect the lands, customs, culture, and traditional Samoan family organization of persons of Samoan ancestry, and to encourage business enterprises by such persons..." Art. I, Sec. 3, Rev. Const, of Am. Samoa.
The statutes enacted by the Fono and relating to communal lapfl sl)QW q ftqsip assumption that the senior matai is the head of the family and shoqld be the one to act as such:
"(a) It is prohibited for any matai of a Samoan family who is, as such, in control of the communal family lands or any part thereof,..."(emphasis added) 27 ASC 204.
"(a) The senior matai in charge of communal lands belonging to his family, ...shall have the power and authority, as limited by this chapter, to agree with any person that any structure now existing or hereinafter erected on such lands shall not be or become a part of the real estate, but shall remain separate and distinct therefrom...," (emphasis added) 27 ASC 402.
In Aumavae, et al. v. Moefaauo, et al., 1 ASR 38 (1902), this coujrt held:
Whilst it is admitted that each member of the family has the right to state his opinion and make suggestions to the head of the family, he has not the power to arrogate to himself the right of appointment; that right alone is vested in the head of the family, who is the representative to vote and act for the family. Id. at 40-41.
Finally, I quote from Sagapolu v. Tanielu, 1 ASR 331 (H.C.T.D. 1922):
"What is a 'matai'? He is a man that is at the head of a family. He is the man that has the family affairs in charge. He is the man that all the members of the family look up to. He is the man they come to for advice. He is the man they come to for everything, practically." Id. at 338 .
With all that in mind, the last sentence of 27 ASC 1202(d): "Only the senior matai of a Samoan family has the authority to request a survey of communal property of that family" is seen as but part of a pattern, Throughout the last 80 years, the senior matai has been the person on whom the family relies and has been the person who acts for the family. To permit others to act on his behalf seems inconsistent to me.
The majority holds the purposes of the statute are served if the senior matai is allowed to delegate expressly such authority, for u3Itimaite control still remains in the senior matai. While this may be true, it is *8inconsistent with another case decided this very term1 in which we held in the absence of statute, members of the legislature are not permitted to delegate’ their powers to sit on the Immigration Board of the Government of American Samoa.
Furthermore, there are provisions for the removal of unsatisfactory matais. 1 ASC 801 provides for the removal of a matai for cause and 1 ASC 802 permita removal if the matai is absent from the Territory for more than one year. Of course, a matai may always resign his title voluntarily. With these three remedies available, it seems to me the family is protected against situations as here in which the senior matai of the family allegedly was too feeble to withstand the rigors of a law suit. Perhaps when a matai is in such a condition, rather than permit the delegation of his authority, the Fono prefers that the matai resign his title or that the title be removed involuntarily.
With the history of the matai system in mind, and to be consistent in our rulings, if it were up to me, I would reverse the trial court on t,he ground that 27 ASC 1202(d) has not been complied with. I firmly believe that absent compelling consistutional requirements, changes in the Samoan communal land system or matai system should come from the 'legislature and nop the judiciary.
, Yamazaki v. Immigration Board of American Samoa, AP No. 014-79.