dissenting.
This matter reached the appellate division of this Court pursuant to an order for summary judgment granted sua sponte prior to trial. On appeal, Appellants raised for the first time the issue of the policy announced in Section 3, Article I of the Revised Constitution of American Samoa, which in its entirety reads:
"Section 3. POLICY’PROTECTIVE LEGISLATION:
It shall be the policy of the Government of American Samoa to protect persons of Samoan ancestry against alienation of their lands and the destruction of the Samoan way of life and language, contrary to their best interests. Such *15legislation as may be necessary may be enacted to protect lands, customs, culture, and traditional Samoan family organization of persons of Samoan ancestry, and to encourage business enterprises by such persons. No change in the law respecting the alienation or transfer of land or any interest therein, shall be effective unless the same be approved by two-thirds vote of the entire membership of each house and by the Governor."
Although not cited by Appellants in their br|ef, Article II, Section 9 of the Revised Constitution of American Samoa1 further supports their contention.
Appellants contend that 27 ASC 204, one of the statutes on which Appellee relies in refusing to register Appellants' warranty deed, was approved by only one legislature, and is, therefore, not effective. Because this matter is raised now for the first time, the trial court was never given an opportunity to consider this argument.
Ordinarily, appeals courts do not consider issues raised for the first time on appeal, but Appellee concedes this is discretionary with the appellate division. Hormel v. Helvering, 312 U.S. 552 (1941); Singleton v. Wulff, 428 U.S. 106 (1976). However, appellate courts can and will consider issues initially raised on appeal if not to do so would be violative of fundamental justice. Hormel, supra.
If 27 ASC 204 is an important statute, and both parties strongly urge it is, the question of its validity or effectiveness should not be sidestepped by the High Court. If, as Appellants contend, every Fono since 1961 has failed to ratify the statute it may be that this issue requires more than the casual footnote given it by the majority.
The validity of 27 ASC 204 was recently addressed by the trial division of this Court in Atufili v. Burns Philp, LT 014-79 (February 29, 1980). The Chief Justice speaking for the Court, traced the history of and the policy behind the statute and concluded because 27 ASC 204 was not passed by two successive legislatures, the statue was an invalid enactment. The Court then applied 27 ASC 204's predecessor sections from the Code of American Samoa (1949) and any valid enactments extant at the time of the alleged violation. The law articulated by the trial division of this court to be in effect is the applicable provisions of the 1949 and 1961 Codes, namely section 9.0102 of the 1961 Code and sections 1280, 1282, and 1290 of the 1949 Code. Today's action avoids this issue leaving all potential litigants and the Territorial Registrar in quandry as to what is now the law.
Should the case have been remanded, I would also have directed the trial court to make findings of fact and conclusions of law as they may pertain to the constitutional questions of due process and equal protection that are raised.
Appellee claims the issue of the constitutionality of this statute has already been tried and upheld in Haleck v. Lee, 4 ASR 519 (1964), however, that case only reached the 'validity of the 1949 statute2 as it was applied *16to communal land. Although not mentioned by the majority, this case involves individualilly owned land.
Both parties, the justices in the majority in this case, and myself agree that 27 ASC 204 creates a classification based on race. Race is a suspect classification (Bolling v. Sharpe, 347 U.S. 497 (1954)) and subject to strict judicial scrutiny (Korematsu v. United States, 323 U.S. 214 (1944); McLaughlin v. Florida, 379 U.S. 184 (1964)). To withstand this higher level of scrutiny, the Government must present a compelling state interest, and the majority of this Court finds that the Government has such an interest. While I do not necessarily disagree with the conclusion, I do disagree with the requirements necessary to reach that conclusion.
The majority relies heavily on Haleck, supra, wherein Justice Roelstated his beliefs as to what was Samoan custom. It appears from the opinion that Justice Roel did not feel it necessary to hear evidence regarding the Samoan custom or the Government's compelling interest. Justice Roel's approach to the issue is summarized in one paragraph of his opinion.
It is common knowledge in American Samoa, to the extent that this Court could properly take judicial ' notice, that the most valuable tangible thing that the Samoan people possess is the land, and that the average Samoan needs statutory protection regarding alienation of land if he is not to lose it forever.
Were it not for the statutory protection, it is not an exaggeration to say that a great deal of the communal land would have been lost to the Samoans by this time, either through the generousity, ignorance or incompetence of the Matai or by the irresistible monetary temptation offered either by Samoans with financial means or by Americans and other tourists to this island who would certainly like to acquire real property in this beautiful area. Even with the statutory restrictions there have been occassions when merchants have brought actions in court seeking to foreclose a mortage on communal land, the consideration for said mortgage having been two or three kegs of beef for a funeral. This only goes to show that the average Samoan is not quite ready to deal on an equal basis when it comes to business transactions with a more sophisticated, business-trained or perhaps unscrupulous individual. Haleck, supra, at 550-551.
In 1964 Justice Roel took judicial notice of the value of land to the Samoans; today the majority overlooks a controlling constitutional provision and holds that the Territory of American Samoa has demonstrated a compelling state interest in preserving the lands of American Samoa for Samoans. But how did the Government present this compelling interest? There has yet to be one iota of evidence presented to the Court. To issue decisions such as in this case and in Haleck seems the ultimate of paternalism. In King v. Andrus, 452 F.Supp. 11 (D. DC 1977), the Court heard testimony and evidence *17presented by a cross-sertion of Samoan leadership and quaiilied experts before determining if the Government had an interest sulJiciently compelling to prohibit trial by jury of American citizens residing in American Samoa. I believe the same approach should be used in this case.
Much time has been devoted to the proposition that the Samoan way ot life will soon come to an end if 27 ASC 204 is held invalid. This is a question of fact which in my mind has yet to be answered. The proposition may well be true, and if it is I would be'loathe to change by judicial .flat a culture founded on its communal land system. 27 ASC 204 may be a good and necessary statute, but why rush to that judgment? If it is good law it will only gain respect by undergoing the careful analysis this Court is capable of giving it.
*The manner in which this issue has been treated by this Court continues to bother me. This is an important issue and Appellants have raised serious constitutional questions. It seems to me Appellants deserve their day in Goupt.
. " ...Furthermore, nothing in this section shall be deemed to permit any change in the law respecting the alienation or transfer of land or any interest therein to be effective unless such change shall have been approved by two successive Legislatures by a two-thirds vote of the entire membership of each House and by the Governor as provided in Section 3 of Article 1."
. Haleck v. lee, 4 ASR 519 (1964) upheld the constitutionality of section 1281 and section 1283 of the 1949 code. Section 1281 created a land *16commission which made recommendations to the governor "respecting the approval or disapproval of instruments affecting title, ownership, or posession of land."