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bills they now could be repassed at any session of the Legislature. The revised section reads:
Every bill, having passed both Houses, shall be signed by the President of the Senate and the Speaker of the House, and shall, before it becomes a law, be presented to the Governor for his approval. If he approves it, he shall sign it and it shall become a law, and he shall deposit it in the office of the Secretary of American Samoa. But if it be not approved by him, he shall return it with his objections to the House in which it originated which shall enter the same in their journal. Any bill not returned by the Governor with 10 days (Sundays excepted) after having been presented to him, shall become a law, whether signed by him or not, unless the Legislature by adjournment prevent such return, in which case it shall not become a law unless the Governor, within 30 days after adjournment shall sign it, in which case it shall become a law in like manner as if it had been signed by him before adjournment; and the Governor shall deposit it in the office of the Secretary of American Samoa.
Not later than 14 months after a bill has been vetoed by the Governor, it may be passed over his veto by a two-thirds majority of the entire membership of each House at any session of the Legislature, regular or special. A bill so repassed shall be re-presented to the Governor for his approval. If he does not approve it within 15 days, he shall send it together with his comment thereon to the Secretary of the Interior. If the Secretary of the Interior approves it within 90 days after its receipt by him, it shall become a law; otherwise it shall not."7
And no longer could the Governor promulgate into law any of his "urgent" proposals that the Legislature had ignored. Now he might "designate any such proposed legislation as urgent, if he so considers it." Period.
In July of 1971 the legislature began operating under a constitutional change proposed in Senate Joint Resolution No. 5 of the Second Regular Session of the Eleventh Legislature and approved by the voters in the 1970 general election. The annual 40-day regular session was eliminated in favor of two 30-day regular sessions to be held each year, the first beginning on the second Monday in January each year and the second session to begin on the second Monday in July of each year."
In March 1970 several laws were enacted expanding the judiciary. A traffic court, a small claims court, and a matai title court were created. And village magistrates were to be named in every village to handle minor infractions of the law. Two months later the High Court itself established a legal aid and lawyer referral system.
In 1969 a Political Status Commission, consisting of legislators and "concerned citizens," was created by the Legislature. A year later it recommended in its report that American Samoa remain an unincorporated and unorganized territory for the present, but it also called for popular election of the Governor by 1976.31
In November of 1970, High Chief Asuemu Ulufale Fuimaono, Director of Agriculture, was elected in the islands' first territory-wide election as American Samoa's first official representative in Washington. He was entrusted with representing "the view of the Samoan people before all branches and agencies of the Federal Government including the Interior Department and Congress.' Known officially as American Samoa Delegate at Large, his office is at 425 13th Street, N.W., Washington, D.C.; telephone number, 638–2933.
II. THE CLASSIFICATION OF TERRITORIES
The overseas holdings of the United States may be divided into the following categories: (1) incorporated Territories (usually capitalized); (2) unincorpo
Article II, section 9. Emphasis supplied.
20State Government News, Aug. 1971, p. 3.
30 United Nations, General Assembly, Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, American Samoa and Guam: Working Paper Prepared by the Secretariat, Document A/AC. 109/L. 717, 1 July 1971, p. 5.
31 U.S. Senate, 91st Congress, 2d Session, Committee on Appropriations, Hearings before the Subcommittee on Appropriations for the Department of the Interior and Related Agencies for Fiscal Year 1971 on H.R. 17619, pt. 1, p. 440; Washington Post, July 4, 1971, p. C 1-2.
32 Washington Post, Nov. 16, 1970, p. A9 and July 4, 1971, p. C 1-2.
rated but organized territories; (3) unincorporated and unorganized territories, or possessions; and (4) the Commonwealth of Puerto Rico (which is still unincorporated). An incorporated Territory is recognized as an integral part of the United States of America; in other words, Congress has incorporated it into the body politic of the Nation by making the Constitution expressly applicable to it. An unincorporated territory, on the other hand, is one which belongs to the United States but is not a part of it. An organized territory, either incorporated or not, is one on which Congress, through legislation establishing a systematic, organized government in the area, has conferred, in large or small measure, powers of self-government.
The distinctions between incorporated and unincorporated territories were coined, and delineated, by the U.S. Supreme Court in the famous (if not notorious) Insular Cases, beginning with Downes v. Bidwell (182 U.S. 244) in 1901 and culminating in Balzac v. People of Porto Rico (258 U.S. 298) in 1922. Alarmed by the acquisition of "alien" peoples following the War with Spain, neither the President, the Congress, nor the Supreme Court, at first, had any clear idea as to how such "different" (a euphemism for backward) souls could be assimilated. The Court finally found a solution. These non-Anglo-Saxons would be placed under the protection of the United States but would have to undergo a long period of tutelage before they, and their territories, could be fully integrated, and incorporated, into the fabric of American society.33
The Court declared that Congress itself was to determine, by any means it chose, which territories were to be considered incorporated and which were not. But once a territory was declared incorporated it assumed superior status. To it, the Court maintained, all provisions of the Constitution-the "formal" and "procedural" as well as the "fundamental"-were to apply. Only the fundamental parts of the Constitution, on the other hand, were to apply to unincorporated territories. The Court failed, however, to list which parts are fundamental and which are formal or procedural; and no such listing has ever been attempted, by either the Court or the Congress. The policy, instead, has been for one or the other to make such distinctions only as laws are enacted and cases decided under them. It has been held, for example, that the provisions of the Constitution relative to jury trials do not apply to unincorporated territories; such provisions are not considered "fundamental."
Although Congress can declare a territory incorporated, the Supreme Court, in the absence of a specific and definite Congressional declaration in regard to certain territories, has itself declared them incorporated simply because Congress, in setting up organized governments, or in extending Federal laws to the territories, had extended all provisions of the Constitution to them. The Court, for example, declared that Alaska had become incorporated long before passage of the 1912 Organic Act. Mr. Justice White, in Rassmussen v. U.S. (197 U.S. 516), asserted in 1905 that "both before and since the decision in Downes v. Bidwell [182 U.S. 244 (1901] the status of Alaska as an incorporated Territory was and has been recognized by the action and decisions of this court *** It follows, then, from the text of the treaty by which Alaska was acquired, from the action of Congress thereunder and the reiterated decisions of this court, that the proposition that Alaska is not incorporated into and a part of the United States is devoid of merit.✶✶ ✶" 34
Discrepancies and anomalies have been almost the rule in the administration of American territories. Alaska and Hawaii were both incorporated Territories, yet their people were never permitted to elect their own Governors. Puerto Ricans, whose homeland has never been incorporated, have enjoyed that right since 1947; and the people of the unincorporated territories of Guam and the Virgin Islands were accorded that same right in 1970. The citizens of Alaska and Hawaii were subject to the Federal income tax, but were represented in the Congress only by a non-voting Delegate; Puerto Rico, unincorporated and exempt from Federal taxation, has precisely the same limited representation in its Resident Commission. (The only differences between Delegate and Resident Commissioner lie in the name and in the supposed "inherent promise" of eventual statehood for the Territory represented by a Delegate.)
See Westel Woodbury Willoughby, The Constitutional Law of the United States (New York, 1929), vol. 1, Chapters XXX and XXXI: Frederic R. Coudert, "The Evolution of the Doctrine of Territorial Incorporation," Columbia Law Review, vol. XXVI, Nov. 1926, pp. 823-850.
34 Pages 523, 525.
Perhaps the strangest anomaly of all was the fact that the Philippines, when an unincorporated territory, had two Resident Commissioners, simultaneously, whereas Puerto Rico has always been represented by only one. And Alaska and Hawaii, both incorporated, had only one Delegate apiece.
III. PRECEDENTS FOR PROVIDING AN UNORGANIZED, UNINCORPORATED TERRITORY WITH A POPULARLY ELECTED GOVERNOR
There are no meaningful precedents. The only territory with a history even faintly suggestive of such a development is the territory of Puerto Rico. In 1947, five years before the Constitution of the Commonwealth of Puerto Rico was promulgated, Congress granted the people of the unincorporated territory the right to elect their own Governor. But Puerto Rico had long been an organized territory: in 1900 the first Organic Act (the Foraker Act) was approved, and a second one (the Jones Act) was enacted in 1917. The latter Act, incidentally, bestowed United States citizenship upon the Puerto Ricans.
In 1970 the people of both Guam and the Virgin Islands were allowed, for the first time, to vote for Governor. But their territories had been organized for years: Guam since 1950 and the Virgin Islands since 1936.
TREATY SAMOAN ISLANDS, JAN. 17, 1878
Treaty between the United States of America and the Government of the Samoan Islands. Friendship and Commerce. Concluded January 17, 1878; ratification advised by Senate, with amendments, January 30, 1878; ratified by President February 8, 1878; ratified by the Samoan Envoy February 11, 1878; ratifications exchanged at Washington February 11, 1878; proclaimed February 13, 1878.
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
Whereas a treaty of friendship and commerce between the United States and the Government of the Samoan Islands was concluded and signed by their respective Plenipotentiaries at the city of Washington on the seventeenth day of January, in the year of our Lord one thousand eight hundred and seventy eight; which treaty, after having been amended and ratified by the contracting parties, is word for word as follows:
The Government of the United States of America and the Government of the Samoan Islands, being desirous of concluding a treaty of friendship and commerce, the President of the United States has for this purpose conferred full powers upon William M. Evarts, Secretary of State; and the Government of the Samoan Islands has conferred like powers upon MK. Le Mamea, its Envoy Extraordinary to the United States. And the said Plenipotentiaries having exchanged their full powers, which were found to be in due form, have agreed upon the following articles:
There shall be perpetual peace and friendship between the Government of the United States and the Government of the Samoan Islands.
Naval vessels of the United States shall have the privilege of entering and using the port of Pagopago, and establishing therein and on the shores thereof a station for coal and other naval supplies for their naval and commercial marine, and the Samoan Government will hereafter neither exercise nor authorize any jurisdiction within said port adverse to such rights of the United States or restrictive thereof. The same vessels shall also have the privilege of entering other ports of the Samoan Islands. The citizens of the United States shall likewise have free liberty to enter the same ports with their ships and cargoes of whatsoever kind, and to sell the same to any of the inhabitants of those islands, whether natives or foreigners, or to barter them for the products of the Islands. All such traffic in whatever articles of trade or barter shall be free, except that the trade in fire-arms and munitions of war in the Islands shall be subject to regulations by that government.
No import or export duty shall be charged on the cargoes of the vessels of the United States entering or clearing from the ports of the Samoan Islands, and no other than a tonnage duty of one-half of one per cent per ton actual measurement shall be charged on the entrance of such vessels.
All disputes between citizens of the United States in the Samoan Islands, whether relating to civil matters or to offences or crimes, shall be heard and determined by the Consul of the United States at Apia, Samoa, under such regulations and limitations as the United States may provide; and all disputes between citizens of the United States and the people of those Islands shall be heard by that Consul in conjunction with such officer of the Samoan Government as may be designated for that purpose. Crimes and offences in cases where citizens of the United States may be convicted shall be punished according to the laws of their country; and in cases where the people of the Samoan Islands may be convicted, they shall be punished pursuant to Samoan laws and by the authorities of that country.
If, unhappily, any differences should have arisen, or shall hereafter arise, between the Samoan Government and any other government in amity with the United States, the government of the latter will employ its good offices for the purpose of adjusting those differences upon a satisfactory and solid foundation.
The Government of Samoa agrees to allow to the Government and citizens of the United States free and equal participation in any privileges that may have been or may hereafter be granted to the government, citizens, or subjects of any other nation.
The present treaty shall remain in force for ten years from its date. If neither party shall have given to the other six months previous notice of its intention then to terminate the same, it shall further remain in force until the end of twelve months after either party shall have given notice to the other of such intention.
The present treaty shall be ratified and the ratifications exchanged as soon as possible.
In faith whereof the Plenipotentiaries have signed and sealed this treaty at Washington, the seventeenth day of January, one thousand eight hundred and seventy-eight.
WILLIAM MAXWELL EVARTS [SEAL.]
And whereas the said Treaty, as amended, has been duly ratified on both parts, and the respective ratifications of the same were exchanged in the city of Washington on the eleventh day of February, one thousand eight hundred and seventyeight:
Now, therefore, be it known, that I, RUTHERFORD B. HAYES, President of the United States of America, have caused the said Treaty to be made public, to the end that the same, and every clause and article thereof, may be observed and fulfilled with good faith by the United States and the citizens thereof.
In witness whereof I have hereunto set my hand, and caused the seal of the United States to be affixed.
Done at the city of Washington this thirteenth day of February, in the year of our Lord one thousand eight hundred and seventy-eight, and of the Independence of the United States the one hundred and second.
By the President:
R. B. HAYES.
WM. M. EVARTS,
GENERAL ACT PROVIDING FOR THE NEUTRALITY AND AUTONOMOUS GOVERNMENT OF THE SAMOAN ISLANDS
Concluded at Berlin June 14, 1889; ratification advised by the Senate February 4, 1890; ratified by the President February 21, 1890; ratifications exchanged April 12, 1890; assented to by Samoa April 19, 1890; proclaimed May 21, 1890.
I. Declaration of the independence and neutrality of the islands.
II. Modification of existing treaties.
III. Establishment of supreme court of justice; jurisdiction.
V. Municipal administration of Apia.
VI. Taxation and revenue.
VII. Sale of arms, ammunition, and intoxicating liquors.
VIII. General dispositions.
The President of the United States of America, His Majesty the Emperor of Germany, King of Prussia, Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Empress of India,
Wishing to provide for the security of the life, property and trade of the citizens and subjects of their respective Governments residing in, or having commercial relations with the Islands of Samoa; and desirous at the same time to avoid all occasions of dissension between their respective Governments and the Government and people of Samoa, while promoting as far as possible the peaceful and orderly civilization of the people of these Islands have resolved, in accordance with the invitation of the Imperial Government of Germany, to resume in Berlin the Conference of Their Plenipotentiaries which was begun in Washington on June 25, 1887; and have named for Their present Plenipotentiaries the following: The President of the United States of America:
Mr. John A. Kasson.
Mr. William Walter Phelps,
Mr. George H. Bates;
His Majesty the Emperor of Germany, King of Prussia:
Count Bismark, Minister of States, Secretary of State for Foreign Affairs,
Dr. Krauel, Privy Councillor of Legation;
Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Empress of India :
Sir Edward Baldwin Malet, Her Majesty's Ambassador to the Emperor of Germany, King of Prussia,
Charles Stewart Scott Esquire, Her Majesty's Envoy Extraordinary and Minister Plenipotentiary to the Swiss Confederation.
Joseph Archer Crowe Esquire, Her Majesty's Commercial Attaché for Europe, who, furnished with full powers which have been found in good and due form, have successively considered and adopted:
First; A Declaration respecting the independence and neutrality of the Islands of Samoa, and assuring to their respective citizens and subjects equality of rights in said Islands, and providing for the immediate restoration of peace and order therein.
Second: A Declaration respecting the modification of existing treaties, and the assent of the Samoan Government to this Act.
Third, A Declaration respecting the establishment of a Supreme Court of Justice for Samoa, and defining its jurisdiction.
Fourth; A Declaration respecting titles to land in Samoa, restraining the disposition thereof by natives, and providing for the investigation of claims thereto and for the registration of valid titles.
Fifth; A Declaration respecting the Municipal District of Apia, providing a local administration therefor and defining the jurisdiction of the Municipal Magistrate.
This general act was annulled by treaty of December 2, 1899, between United States, Germany, and Great Britain, page 1595.