Before going into detail on these questions, I think it is important to remind the Committee that these factors relate to the degree of self-government to be exercised by the people of American Samoa. and the relationship of the territory to the Federal Government. They will not alter the fundamental fact that American Samoa is a United States territory and has been in fact since the turn of the century.

The election of a governor will provide the people of the territory with greater self-government in accordance with their wishes than they now have. This step is fully in accordance with article 73 (b) of the Charter which calls on members of the United Nations who administer non-self-governing territories to "develop self-government, to take due account of the political aspirations of the peoples, and to assist them in progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement."

I might add in this regard that article 73 (e) speaks of an obligation to transmit to the Secretary-General certain information of a statistical and technical nature relating to economic, social and educational conditions in non-self-governing territories. It does not refer to any obligation to transmit information relating to political and constitutional developments, but we provide that information because of our wish to cooperate with the Committee. We are aware of the desire of this Committee to send a visiting mission to American Samoa and have the matter under consideration, but I would remind the Committee that there is no obligation under the Charter to extend such an invitation either to observe conditions in the territories or to observe particular steps in the process of achievement of local self-government.

My Government has provided the Committee with information regarding last year's referendum and the Secretariat working paper deals with the question in some detail. As the Committee is aware, ballots were cast by 4,451 individuals. This figure represents approximately 64 percent of the registered voters, who number 6,933.

The total census figure of approximately 30,000 inhabitants in American Samoa is somewhat misleading as a guide to judging the size of the electorate, in that only approximately half are 18 years of age or older. Of that figure approximately 7,000 are aliens, including a large number of Western Samoans, who have not yet acquired residence and are not entitled to vote. We estimate that there are roughly 8,000 American Samoans over the age of 18 who reside in American Samoa.

As we have discussed with the Committee before, previous referenda were held on the question of an elected Governor in 1972, 1974, and 1975. In each case the referenda were subjected to criticism on the grounds that the issue was not clearly defined for the voters, either because there were other questions on the ballot or because the referendum was not preceded by an objective political education campaign, explaining the issue to the voters. Great care was taken this time to ensure that these criticisms could not be fairly leveled and that the referendum would in fact reflect the freely expressed views of the people of American Samoa.

The election of a governor, as I have already stated, will provide the people of the territory with a greater degree of self-government than now obtains. The full extent of the powers and responsibilities of the governor will be spelled out in a Secretarial Order to be promulgated by the Secretary of the Interior in the coming months. That order will be consistent with the provisions of the Elected Governor Act of 1977, recently passed by the Fono. The relationship of the elected governor with the Federal Government and the degree of autonomy with which he will operate will also be spelled out in the Secretarial Order. . . .

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The organization of the Government of American Samoa is distinct from that of the United States Virgin Islands and Guam, in that the United States Congress has never enacted an organic act for American Samoa. An organic act is legislation passed by the Congress for the purpose of organizing a local government, providing for self-governing institutions and spelling out the relationship of the territory to the Federal Government. As I have said, this has occurred for Guam and the U.S. Virgin Islands. In the case of American Samoa, the Congress has delegated to the executive branch responsibility for developing the institutions of government and spelling out the precise relationship with the Federal Government. There is no immediate prospect of the Congress approving an organic act for American Samoa, and as we have informed the Committee previously, there is little support among the people of American Samoa for consideration by the Congress of an organic act, because it is felt that it could jeopardize traditional land holding patterns.

Before closing, I will turn briefly to the economy. I am pleased to report that the Federal Government and the Government of American Samoa have had considerable success in their efforts to increase local revenue collection and reduce reliance on the annual federal grant. Efforts to expand the tax base are reflected in the increase of local revenue collections from $3,931,000 in FY [Fiscal Year] 1976 to an estimated $8,713,000 in FY [Fiscal Year] 1978. Grant assistance is decreasing in proportion, as the total annual budget remains nearly constant at approximately $30,000,000.

Press Release USUN-51 (77), June 21, 1977.

On Sept. 13, 1977, Acting Secretary of the Interior James A. Joseph signed Order No. 3009, which provided for the election of the Governor and Lieutenant Governor of American Samoa and for the creation of the Office of Government Comptroller. Portions of the Order appear below:

Sec. 1 Purpose. The purpose of this order is to provide for an elected Governor and Lieutenant Governor in American Samoa and to create the Government Comptroller for American Samoa in the Office of the Secretary of Interior. The electorate of American Samoa in an official referendum of August 31, 1976, voted by 3044 affirmative votes to 1366 negative votes to

elect the Governor and Lieutenant Governor by popular vote. Subsequently, the Legislature of American Samoa on March 28, 1977, in Special Session enacted enabling legislation to provide procedures for an elective local Governor and Lieutenant Governor. Approved by the Governor of American Samoa, as P.L. 15-23 on May 16, 1977, this law officially requested the Secretary of Interior to provide through the issuance of a Secretarial Order authority for the popular election of the Governor and Lieutenant Governor.

Sec. 2 Election of Governor and Lieutenant Governor. In accordance, therefore, with the expressed wishes of the electorate and the subsequent action of the Legislature of American Samoa, Article IV of the Revised Constitution of American Samoa is hereby revised to provide as follows:

The Governor and the Lieutenant Governor of American Samoa shall, commencing with the first Tuesday in November, 1977, be popularly elected and serve in accordance with the laws of American Samoa.

Sec. 3 Creation of the Office of Government Comptroller. There is hereby created in the Office of the Secretary of Interior the Office of Government Comptroller for American Samoa. The Government Comptroller for American Samoa shall report to the Secretary of Interior and have such additional staff as the Secretary deems appropriate for him to discharge his duties, responsibilities and functions.

(a) The principal responsibility of the Government Comptroller for American Samoa shall be to perform specific and comprehensive audits of all activities, entities, and branches of the Government of American Samoa. These audits stall include but not be limited to financial, compliance, management, organization and program reviews. In addition, other types of audits shall be made as appropriate at the request of the Secretary of Interior.

Sec. 5 Ultimate Responsibility of the Secretary. Until the Congress of the United States provides further for the civil government of American Samoa, the President of the United States, through the Secretary of Interior, has the ultimate responsibility for the administration of the Territory of American Samoa.

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American Samoa

Right to Jury Trial

On December 30, 1977, the U.S. District Court for the District of Columbia ruled in King v. Andrus (Civil Action No. 2030-72) that the statutes, rules, and regulations of the U.S. Secretary of the Interior denying the "right of trial by jury in criminal cases in American Samoa are unconstitutional on their face . . . ." The case had been brought by a U.S. citizen living in American Samoa who had been denied a jury trial by the Chief Justice of the High Court of American Samoa after being charged, inter alia, with willful failure to pay Samoan income tax. The plaintiff sought an injunction against the enforcement of the nonjury judgment of conviction by the U.S. Secretary of the Interior, Cecil D. Andrus, as administrator of American Samoa. After reviewing the evidence submitted by the defendant to the effect that the Samoan way of life with its chieftal system would be adverse to a jury system, U.S. District Court Chief Judge William B. Bryant enjoined the defendant "from enforcing

judgment of criminal conviction against the plaintiff without according him a right to trial by jury."

Portions of the opinion by Judge Bryant follow:

Plaintiff, an American citizen living in American Samoa, had been charged in the High Court of American Samoa with willful failure to pay Samoan income tax and to file an income tax return in violation of pertinent sections of the United States Internal Revenue Code of 1954, as adopted by the Revised Code of American Samoa. The Chief Justice of the above-mentioned court denied plaintiff's motion for a jury trial, and plaintiff filed this suit against the Secretary of the Interior as administrator of American Samoa requesting, (1) a declaration that the denial of jury trial to an American citizen charged with serious crime in the American Samoan court is unconstitutional; and (2) an injunction against the Secretary's enforcement of any judgment of conviction against him not based on a jury verdict.

After cross-motions for summary judgment were filed this court dismissed the action for lack of jurisdiction. Plaintiff appealed, and our U.S. Court of Appeals, noting probable jurisdiction, reversed and remanded with directions to this court to render a decision which rests on a solid understanding of the present legal and cultural development of American Samoa. The Court stated:

That understanding cannot be based on unsubstantiated opinion; it must be based on facts.

Specifically, it must be determined whether the Samoan mores and matai culture with its strict societal distinctions will accommodate a jury system in which a defendant is tried before his peers; whether a jury in Samoa could fairly determine the facts of a case in accordance with the instructions of the court without being unduly influenced by customs and traditions of which the criminal law takes no notice; and whether the implementation of a jury system would be practicable. In short, the question is whether in American Samoa "circumstances are such that trial by jury would be impractical and anomalous." Kina v. Morton, 172 U.S. App. D.C. 126, 133, 520 F. 2d 1140, 1147 (1975).

Pursuant to these directions, an extensive trial was held.

It appears that plaintiff is correct in his contention that the jurisdictional issue has been resolved in his favor by the Act of Congress (Public Law 94-574, 90 Stat. 2721) amending 28 U.S.C. 1331 which eliminates the required showing of a value of $10,000 of the matter of controversy; and also by Mister Ralpho v. Bell, 75-2088, decided by our court of appeals on March 29, 1977. The defendant does not seriously contend otherwise.

Throughout these proceedings the defendant has contended that instituting jury trial as a requirement of the criminal justice system in American Samoa would be impractical and anomalous within its culture, and that it would undercut the preservation of traditional values and harmonious relationships on the relatively small island and undermine confidence in the present system of justice.

Defendant claims that "Fa'a Samoa" (the Samoan way of life) encompasses a complex system of personal interrelationships mani

festly adverse to a jury system. The main features of this system are the "aiga" or extended family, the "matai" or chieftal system, the land tenure system under which nearly all land is communally owned, and the custom of "ifoga" whereby one family renders formal apology to another for a serious offense committed by one of its members.

Plaintiff correctly points out that the jury system is widely recognized as an institution of democratic government, providing the people with an opportunity to participate in the judicial system and make important decisions affecting their fellow citizens. The evidence establishes that the Samoan culture has many democratic features that permit, and in fact, foster, widespread popular participation in the conduct of public affairs. For example, the matais are selected via a democratic process. They are elected by the members of their families, or clans, whom they will govern. The titles are not hereditary.

If a matai does not perform his duties he may be removed. This too is accomplished by majority vote of the family or clan, or aigo (the extended family). These procedures are characterized by full and free discussion during which, if possible, unanimous consent of the family is sought.

The institutions of the present government of American Samoa reflect not only the democratic tradition, but also the apparent adaptability and flexibility of the Samoan society. It has accommodated and assimilated virtually in toto the American way of life.

American Samoa has its Constitution with a Bill of Rights. The latter contains all of the procedural protections of our own Constitution for criminal defendants except the grand and petit jury requirements. These include protection against unlawful search and seizures, the exclusionary rule against the admission of illegally seized evidence, the protection against double jeopardy, the privilege against self-incrimination, the right of cross-examination and confrontation, the presumption of innocence, the right to bail, and the right to the assistance of counsel, and the time honored writ of habeas corpus. According to a defense witness, Justice Jochimsen, there has been no difficulty in administering the system of criminal justice which is similar to our own in so many respects.

The High Court of American Samoa follows the American system of trial. It is an adversary system with a prosecuting attorney on one side and defense counsel on the other; witnesses testify under oath and are cross-examined. The Federal Rules of Criminal Procedure apply fully except for the jury trial provision. And finally the Samoan substantive law is a virtual transplant of the American. Title 15 of the Code of American Samoa defines the basic crimes and virtually all of them are derived from our Title 18. As a matter of fact the Federal Internal Revenue Code is incorporated by reference into the law of American Samoa, including the specific provisions under which the plaintiff was prosecuted.