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.

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 inry 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 privi lege 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.

Caseload statistics in the High Court of American Samoa indicate that jury trial would not overtax the judicial system. In fiscal 1975 there were only 165 criminal findings, and most of these, as is the case in the United States, did not result in trial, but were disposed of by way of the plea bargaining route. No evidence was offered to the effect that the rate of dispositions by pleas would be appreciably affected by the introduction of a jury trial.

The present court system of American Samoa is already handling effectively any problems arising out of the bilingual nature of the society. Interpreters provide simultaneous translation in both civil and criminal cases which are tried in the High Court. The questions are put in English and translated into Samoan. Witnesses answer in whatever language they choose and the responses are immediately translated. Colloquy between the court which is in English is translated into Samoan for the benefit of the Samoan associate judges. Nothing in the evidence points to the fact that this translation system would not function as well in jury proceedings as it does presently in trials before the court. A similar system of translation is in current use in Western Samoa which has the same two official languages, English and Samoan, as American Samoa.

Finally, the evidence establishes that the personnel and officers which would make a jury system work effectively are already present in American Samoa, i.e., professional prosecutors, a public defender office, and a number of American Samoan defense attorneys who are graduates of American law schools and are trained in the American judicial system.

One final word. The witnesses, both for the plaintiff and the defendant, agree that jury trial would be a desirable feature of American Samoa's criminal justice system. The only points of difference arise with the questions of when should it be instituted, and by whom. I wish to emphasize that I have great sensitivity to the views expressed by most of the witnesses that these questions should be resolved by American Samoans themselves. On its face this position has considerable appeal.

However, the many expressions of this point of view do not of themselves establish dispositively the impracticality or anomaly of a jury trial in serious criminal proceedings in American Samoa at this time. I am required at this juncture to consider, as best I can, all of the circumstances bearing on this issue. The fact is that all of the hard evidence which bears on the actual situation in American Samoa today in terms of its legal and cultural development cuts the other way, and leads me to the inescapable conclusion that trial by jury in American Samoa as of the time when Jake King went to trial on the criminal charges here involved would not have been, and is not now, "impractical and anomalous."

Accordingly, plaintiff is entitled to the relief prayed for. Therefore this court (1) concludes that the provisions of the Revised Code of American Samoa, the Rules of the High Court of American Samoa, and the rules and regulations of the Secretary of the Interior, which deny the right of trial by jury in criminal cases in American Samoa are unconstitutional on their face and as applied to plaintiff, and that the defendant, his appointees, agents, em

ployees, and all other persons subject to his authority and control cannot lawfully enforce these provisions or act pursuant to them; and (2) permanently enjoins the defendant, his appointees, agents, employees, and all other persons subject to his authority and control from enforcing any judgment of criminal conviction against plaintiff obtained without according him a right to trial by jury.

U.S. App. Ct. D.C. No. 2030-72, pp. 1-3, 9-13.

For further information concerning Ralpho v. Bell, see post, Ch. 2, § 6, pp. 91–95.

86 Trust Territories

Trust Territory of the Pacific Islands

General Policy

In a statement before the U.N. Trusteeship Council on June 6, 1977, U.S. Representative John Kriendler described efforts to terminate the U.S. Trusteeship Agreement in the Pacific Islands not later than the end of 1981. Mr. Kriendler discussed the drafting of a constitution for the Northern Mariana Islands and procedures for ratification of a constitution in Micronesia. He spoke as well about the Round Table Conference in Honolulu, Hawaii, from May 18 to 21, 1977, between representatives of the United States and the Marshall and Caroline Islands and about a proposal that Micronesia be given separate international standing in the field of marine resources. Mr. Kriendler's statement appears below:

As members of the Council are aware, the Northern Mariana Islands have been administered separately from the Marshall Islands and the Caroline Islands since April 1, 1976. The separation of the Northern Marianas for administrative purposes from the rest of the Trust Territory was the first step in the implementation of the Northern Marianas Commonwealth Covenant, which was approved by the people of the district in a plebiscite observed by a visiting mission from this Council on June 15, 1975. Last year my Government reported that the next step in the development of selfgovernment would be the drafting of a local constitution in accordance with the terms of the Commonwealth Covenant. I am pleased to report that the drafting has been completed and that the draft Constitution has been approved by the people of the Northern Marianas. The Constitution is now under review in Washington in accordance with section 202 of the Covenant, which states that "The Constitution will be submitted to the Government of the United States for approval on the basis of its consistency with the Covenant and those provisions of the Constitution, treaties and laws of the United States to be applicable to the Northern Mariana Islands." Unless it is disapproved as a result of that review, the Constitution will be deemed fully approved not later than October 23, 1977, six months from the date it was transmitted to the Federal Government. It is our expectation that elections under the Constitution will be