‘Indirect rule’ and the rule of law in Samoa

Seu le manu, 'ae taga'i i le galu, a Samoan proverb of general caution commonly invoked in American Samoa when contemplating a change in the islands' territorial status. See, for example, American Samoa [hereinafter AS], Annual Report (1959) 69, United States National Archives Pacific Sierra Region, San Bruno, California [hereinafter USNA], RG 284, GO 149, 8A. Cf., AS, Report from the Second Temporary Future Political Status Study Commission to the Governor (Pago Pago 1979); and AS, A 40-year History of the Legislature of American Samoa (Pago Pago 1988) ii. Ia seu le manu, 'ae silasila i le galu. “Catch the bird, but watch the breakers”, according to Erich Schultz, from proverbs compiled at the turn of the prior century. Dr E. Schultz, Samoan Proverbial Expressions (Auckland 1980) 38. See, for example, P. V. Kirch, Evolution of the Polynesian Chiefdoms, (Cambridge 1984). For a more detailed (and interpretive) study, see also J. Bonnemaison, The Tree and the Canoe, (Honolulu 1994), particularly his conception of “enchanted space” (p. 113) and “sacred space” (p. 171), and his characterization (albeit in an idealized sense) of the concept of territory operative within Tanna, a western Pacific island society. In Bonnemaison's terms (and from the translator's introduction), “a Tannese villager believes that his territory ‘is a…mediating agent between himself and the cosmos…a link in the chain that connects him [within a spatial dimension] with…his ancestors through time’” (p. xi). Similar conceptions apply within current Samoa and throughout most, if not all, Pacific island societies. See M. D. Olson, Reconstructing landscapes: the social forest, nature and spirit-world in Samoa, Journal of the Polynesian Society, 106, (1997) 7–32. The more essential element referred to in the text and operative at the time of European arrivals concerned the control over the benefits derived from land, as in the forms of tribute transferred in acts of acquiescence or allegiance. And it included attempts to maintain such flows through conquest and the insertion of rights, such as chiefly rights, into different social contexts. Similar phenomena occurred under applications of European forms of rule, as discussed in the text. See, for example, J. Agnew and S. Corbridge, Mastering Space, (London 1995). The ‘abstractions’ included cartographic grids and cadastral surveys as a means of demarcating territorial boundaries, imposing order, and facilitating the registration and transfer of rights to land. Cf., R. D. Sack, Human Territoriality: Its Theory and History (Cambridge 1986). Sack argues (on p. 1) that “territoriality in humans is best understood as a spatial strategy to affect, influence, or control resources and people, by controlling area”. But see, for example, P. Vandergeest and N. L. Peluso, Territorialization and state power in Thailand, Theory and Society24 (1995) 385–426. These authors offer a similar addendum to Sack's definition as that stated in the text above. They also address the general lack of attention given to internal territorial strategies in analyses of state formation. Cf., the conception of autonomy and power in theories of formal organizations, where autonomy is defined in terms of discretionary control over the resources necessary to maintain the organization, and power refers, in part, to the organization's control over the resources needed by other organizations. See W. R. Scott, Organizations: Rational, Natural and Open Systems (Englewood Cliffs 1992). The Kingdom of Tonga was never formally subjected to colonial rule, and central governments based on European models were established in Hawaii, Tahiti, and Fiji prior to the declaration of foreign rule. By the “Pacific islands” I refer to those islands within the Pacific Ocean, except those islands or parts of islands more commonly associated with Asia. P. Gifford, Indirect rule: touchstone or tombstone for colonial policy, in P. Gifford and W. R. Louis (Eds), Britain and Germany in Africa (New Haven 1967) 351–391, 352. The term is commonly associated with the writings of Frederick Lugard, who arguably coined it, and perhaps, also with those of Donald Cameron. But clearly “[w]hat Lugard [and Cameron] did” at best, to borrow from Margery Perham, “was to turn a rather widespread expedient into a carefully elaborated system”. See M. Perham, Introduction, in Lord Lugard, The Dual Mandate in British Tropical Africa (London 1965) i–xlix, xl. See also, Lord Hailey, An African Survey (Oxford 1938); H. F. Morris and J. S. Read, Indirect Rule and the Search for Justice: Essays in East African Legal History (Oxford 1972); and L. H. Gann and P. Duignan (Eds), Colonialism in Africa, 1870–1969, vol. 1: The History and Politics of Colonialism (London 1969). See, for example, W. D. McIntyre, The Imperial Frontier in the Tropics, 1865–75, (London 1967). Fisher, 1991 See, for example, S. N. Hasan, Zamindars under the Mughals, in R. E. Frykenberg (Ed.), Land Control and Social Structure in Indian History, (Madison 1969) 17–32; and C. Day, The Dutch in Java, (Kuala Lumpur 1966). See, for example, P. Carrasco, The Tenochca Empire of Ancient Mexico, (Oklahoma 1999); and R. W. Patch, Imperial politics and local economy in colonial Central America 1670–1770, Past and Present, 143, (1994) 77–107. Perham, 1934, A re-statement of indirect rule, Africa, VII, 321, 10.2307/1155493 Malinowski, 1945, Indirect rule and its scientific planning, 138 The central issue within such debates rests on the notion of sovereignty and ‘native sovereigns’; and the principal concern appears to be with the extent and integrity of such authorities' control at the political center. See, for example, Fisher, op. cit., 4–7. “…for these were the traditional forms of government.” J. S. Read, Patterns of indirect rule in East Africa, in Morris and Read, op. cit., 253–286, 262. Lord Hailey, An African Survey: Revised 1956 (Oxford 1957) 415. Cf. J. S. Furnivall,Colonial Policy and Practice (Cambridge 1948), who argues (on pp. 276–277) that “there is no sharp line between direct and indirect rule, and we find the same power adopting different systems in the same place at different times, and in different places at the same time”. By “foreign” or “foreigners” I am referring principally to Europeans and Americans of European ancestry. I use the phrase ‘colonial powers’, in a general and broad sense, to refer to those states engaged in colonizing activities during the period being addressed, and, in a specific sense with respect to Samoa, to those mentioned in the text: Germany, Great Britain, and the United States. For a more detailed and representative discussion of the considerations influencing British colonial policy at the time of their expansion into the Pacific, see McIntyre, op. cit. Cf., Read, op. cit., 283, who states that “the dominant conflict…in indirect rule was that between the centralizing tendency…resulting from the structure of colonial government, and the…need to decentralize administration as far as possible”. See, Furnivall, op. cit., 292–296. The more common expressions “might makes right” or the “law of the jungle” compared to “due process”, “equal protection”, and “equality before the law” refer to the same distinctions. Commander Tilley on Samoa, Samoanische Zeitung (28 September 1901) 8. See also United States [hereinafter US] Congress, Report of the Assistant Secretary of the Navy, 56-2, House Doc. No. 3 (Washington DC 1900) 98; and US Congress, Report of Commandant of Naval Station Tutuila, 57-1, House Doc. No. 3 (Washington DC 1901) 85. Tilley was the first Commandant of the United States Naval Station, Tutuila. In 1905, the Commandant became Commandant-Governor: Commandant of the Naval Station, Governor of what would become American Samoa. For continuity and clarity, I refer to the eastern islands of Samoa under United States control as American or eastern Samoa. And I refer to the western islands of Samoa under German rule as “German Samoa”, under New Zealand administration as “Western Samoa”, and, more generally, as “western Samoa”, as opposed to “Samoa”, the name formally applied today by the United Nations to their independent state. New Zealand administration supplanted German rule in the west with the outbreak of World War I. For general histories of American Samoa, see T. F. Darden, Historical Sketch of the Naval Administration of the Government of American Samoa (Washington DC 1951); and J. A. C. Gray, Amerika Samoa (New York 1980). For general histories of western Samoa see, M. Meleisea, The Making of Modern Samoa: Traditional Authority and Colonial Administration in the Modern History of Western Samoa (Suva 1987); and J. W. Davidson, Samoa mo Samoa: The Emergence of the Independent State of Western Samoa (Melbourne 1967). See also, F. Keesing, Modern Samoa: Its Government and Changing Life (London 1934), for the last published attempt to compare similar aspects of Samoa's political history, east and west of the line of partition. What follows in the text is based on my own reading of the archival record. Comments made to the assembled “tribal chiefs” in his “declaration concerning the Samoan self-government”. Wilhelm Solf, Excerpt from Annual Report 1900–1901, GSA IV 5.a, in Papers Relating to German Administration of Western Samoa, 1900–1914 [hereinafter GAP], an English translation of German Samoa Administration Papers [hereinafter GSA], Archives of German Colonial Administration, National Archives, Wellington, New Zealand. US Congress, Message from the President of the United States transmitting A general act…in regard to…the Samoan Islands, 51-1, Senate Misc. Doc. No. 81 (Washington DC 1890). US Congress, Convention Between the United States, Germany, and Great Britain, 56-2, Senate Doc. No. 157 (Washington DC 1900). Germany and the United States renounced, in favor of the other, “all…rights and claims over and in respect to” the islands of Samoa east and west of the 171st meridian, respectively. Great Britain renounced in favor of the United States similar ‘rights and claims’, and received in a separate agreement with Germany concessions elsewhere in the Pacific and southern Africa. See P. M. Kennedy, The Samoan Tangle: A Study in Anglo-German–American Relations 1878–1900 (Dublin 1974). Cf., R. P. Gilson, Samoa 1830–1900: The Politics of a Multi-Cultural Community (Melbourne 1970). B. Tripp, Report to the Secretary of State, US Congress 56-1, Senate Doc. No. 51 (Washington DC 1899) 8. The commission, representing the three powers, “arrived on the 13th of May…making the seventh of the fleet of war vessels…then anchored in [Apia's]…harbor” (, ibid., 2). The army of Malietoa, King by virtue of the Berlin Act, patrolled…the harbor's town, while the army of Mataafa, representing the majority of Samoan interests, encircled it. E. W. Gurr, Report on Government of Tutuila (1901) 4, USNA, HC 8. Tripp, op. cit., 8. Ibid., 18. Solf, Excerpt from Annual Report 1900–1901, 4. Tumua and Pule 's reach extended throughout the islands, except, arguably, to Manu'a. See G. Turner, Samoa a Hundred Years Ago and Long Before (London 1884); and A. Kramer, The Samoan Islands (1902), translated by T. Verhaaren (Honolulu 1994). The terms ‘chiefs’, ‘orators’, and ‘orator-chiefs’ are the common English translations used at the time (and since) of the Samoan words alii,tulafale , and tulafale-alii. … As Solf had been charged by the Kaiser. GAP 17.C.6 app., 3. They were eleven in the west, outside of the town area, and three in the east. See, for example, Samoanische Zeitung, (3 August 1901) 9; and AS, Form of Government, USNA, HC 8, Laws and Regulations (1900, No. 5). That is, they did it to counter what they perceived to be the orators' tendency to ‘usurp’ the chiefs' more traditional authority. Gurr, Report, 4. W. Solf, Solf to Staff (7 March 1904), GAP 17.A.1(3), 20. E. Schultz, Memo (23 March 1904), GAP 17.1(3), 24. With the increasing shift to direct rule “the whole organic edifice of native polity collapses, and there remains no unit more comprehensive than the village”. See Furnivall, op. cit., 297. W. Solf, Account of the journal of…(October 1901), GAP 17.B.3, 4. R. Williams, Excerpt from Williams' journal (18 February 1904), GAP 17.A.1(4), 1. For the original Samoan text, see GSA XVII.A.I(iv), 18. AS, Underwood to Assistant Secretary of the Navy (15 October 1904), USNA, GO 177, Annual Report on Government Affairs, 1904, No. 318. Banse, Extract from Diary Notes (October 1900), GAP 17.A.1(1), 19. Hecker to Solf (9 June 1909), GAP 17.C.5(3), 2. E. W. Gurr, In the matter of a complaint against Lei, Saleapaga, and Palaita, District Court, Manu'a, No. 18. 1901, Samoanische Zeitung, (16 August 1902) 10. AS, Instructions Concerning Appointed Chiefs, USNA, HC 8, Laws and Regulations (1900, No. 12); see also, Gurr, Report. AS, Moore to The Assistant Secretary of Navy (30 October 1905) 3, USNA, GO 177, Annual Report Government Affairs, General, 1905, No. 230. For the full text of the deeds of cession, see, American Samoa Reports, 1 (Pago Pago 1973) 6. AS, Form of Government. Defined as opinion in the west by its leaders, referred to as the Samoan Cause in the east in official correspondence, the word ‘mau’ does not translate easily to English in the way in which it was being applied. “To be firm, to be fast…to be decided, to be unwavering”, according to the Reverend G. Pratt, Pratt's Grammar and Dictionary of the Samoan Language (Apia 1911). AS, Governor to Secretary of the Navy (1 July 1921) 3, USNA, GO 177, Annual Report on Government Affairs. Congress, however, never passed the legislation, although the Governor enacted into law various components of the proposals, including a Samoan bill of rights. See, O le Faatonu, 31, (1933) 1; US Congress, American Samoa: hearings before the Commission appointed by the President, 71-2, Published Hearing (Washington DC 1930); US Congress, American Samoan Commission, 71-3, Senate Doc. 249 (Washington DC 1931); US Congress, Government for American Samoa, 72-2, House Report No. 1998 (Washington DC 1933); and AS, Governor to Secretary of the Navy (27 July 1931) 1, USNA, GO 179, Annual Report on Government Affairs. “We…were surprised to hear…any complaint”, the Minister of External Affairs was informed by the Native Council, “and on our inquiring carefully…we discovered…that a European committee has stirred up some Samoans to express dissatisfaction.…Our history shows that Europeans stirring up the Natives have been our continual hindrance.…Is there no law to punish and stop them—they who try to disturb our peaceful country?” NZ, Mandated Territory of Western Samoa: annual report…1927, Appendix to the Journal of the House of Representatives [hereafter AJHR ] (1927: 1A-4, app.) 43. NZ, Western Samoa (Report of Royal Commission Concerning the Administration of), AJHR, (1928:1A-4b) xxvii. The Commission was comprised of New Zealand's Chief Justice and a Judge of New Zealand's Native Land Court. See P. J. Hempenstall and N. Rutherford, Protest and Dissent in the Colonial Pacific, (Suva 1984). For “A chief is not a chief”, to quote Lord Hailey, “if he has no court”. And “where law derives its validity from custom…the…separation of powers of a ruler as law-giver and as judge cannot arise”. Hailey, op. cit. (Revised) 591. It was not just the allocation of sinecures that created this dependence, but also the strict control colonial authorities maintained over chiefly title succession, the number of chiefly title-holders, and chiefly rights. See M. D. Olson, Articulating custom: the politics and poetics of social transformations in Samoa, Journal of Legal Pluralism, 45, (2000) 19–47. “[T]he Natives consider that the Faipules are put in power by the Administrator and are removable only by the Administrator and obey the instructions of the Administrator, and are consequently Government officials”, legal counsel for the Mau testified before the Royal Commission. NZ, Report of Royal Commission, xxxi. In contrast, the Administrator considered it to be one of the more “progressive steps taken during my regime” (ibid., xxx). “Each District Council is hereby empowered and required…To allot the Native land…within its district…among the able-bodied male Samoans resident in the respective villages…in such manner that each such Samoan shall have as nearly as may be an area of ten acres for his cultivation.”, Native Regulations Order (Samoa) 1925, reprinted in NZ, Report of Royal Commission, 497. For a discussion of colonial development policy in Samoa, see M. D. Olson, Development discourse and the politics of environmental ideologies in Samoa, Society and Natural Resources, 14, (2001) 399–410. In reply, the Minister argued “that this policy does not mean the alienation of Native lands, or the abolition of the communal system, but merely the allocation of areas of land to individual Natives who have no land for their own use. The previous system made no provision for any land to be cultivated other than that held under the control of the Matai”, referring to the chiefs and orators in their positions as formal leaders within their extended families. NZ, Mandated Territory of western Samoa: Report of visit by Hon. W. Nosworthy AJHR (1927: 1A–4b) 16, 42. Native Regulations Order (Samoa) 1925,, Section 14. See NZ, Report of Royal Commission, 497. Ibid., 423. Ibid., xli. See, The Samoan Land and Titles Protection Ordinance (1934), in Western Samoa [hereinafter WS], Reprints of the Statutes of Western Samoa 1920–77 (Wellington 1978) 227. NZ,…annual report…1937, AJHR, (1937: 1A-4) 4. NZ, Report of Royal Commission, 130. See, for example, the Governor's yearly address before the Annual Fono (in USNA, GO 172-6); US Congress, Study Mission to Eastern (American) Samoa, 81–1, Committee Print (Washington DC 1961); and AS, Annual Report (1956) app., USNA, GO, Series five (6 of 6). “Unorganized” because Congress has not ratified a territorial constitution in the form of an organic act; “unincorporated” because Congress has not bestowed upon the islands the right to become a state within the United States. See E. J. Michal, American Samoa or eastern Samoa?, Contemporary Pacific, 4, (1) (1992) 137–160. NZ, Report to Trusteeship Council by United Nations Mission to…Western Samoa, AJHR, (1947: 1A–4b) 3. AS, Annual Fono (1946) 94, USNA, GO 174. … a “Congress [to be] known as the ‘Fono of Samoa’”. AS, Annual Fono (1945) 59, USNA, GO 174. NZ, Territory of western Samoa: Report, AJHR, (1948: 1A-4) 4; see Davidson, op. cit., 166. NZ,…Report…1948, 5; see also M. Boyd, The record in Western Samoa since 1945, in A. Ross (Ed.), New Zealand's Record in the Pacific Islands in the Twentieth Century (London 1969) 189–270, 197. The advisors, or Fautua, chosen were those individuals whose titles made them eligible in the nineteenth century to be ‘king’. NZ,…Report…1948, 4–7. Davidson, op. cit., 353; Boyd, op. cit., 200. see Darden, op. cit. AS, Annual Fono (1948), USNA, GO 175; NZ,…Report…1948, 5. As expressed in the United Nations Charter, Article 76, clause (b). See Davidson, op. cit., 167. As expressed in United States Department of Interior policies. See AS, Annual Report (1953) app., USNA, GO, 175. US Congress, Government for American Samoa. AS, Governor to Navy Liason Officer to House Public Lands sub-committee (1 December 1949), USNA, GO 170, 8E Fono 1955 [1949]. AS, Governor Coleman to Lausi, Director Office of Territories (24 April 1957), USNA, GO 171, 8E Fono, 1957. The refusal of Congress to include a similar provision for Guam only increased the Samoan legislature's concern. US Congress, Study Mission. Of particular concern was the Supreme Court's anticipated interpretation of the application of the equal protection clause of the Fourteenth Amendment and the due process clause of the Fifth Amendment with respect to Samoan restrictions on the ownership of land based on racial criteria. See Gerald Gottlieb, Opinion, USNA, 40, 7J Lands, Code of American Samoa, 1953; and his paper, Organic Act for Samoa and Related Matters, in the same folder. “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 legislation as may be necessary may be enacted to protect the lands, customs, culture, and traditional Samoan Family organization of persons of Samoan ancestry”. AS, Constitution (Pago Pago 1960), Article 1, section 3. The protections are stated in terms consistent with those first expressed to members of Congress by American Samoa's legislature in 1949. See, AS, Proceedings and Debates of the First Legislature of American Samoa with the Congressional Committee from Washington, DC relating to the Proposed Organic Act for American Samoa—HR 4500 (6–9 November 1949) 12, USNA, GO 176, Annual Fono, 1949 [2 of 3]. Any change in the law regarding Samoan lands would require a “two-thirds vote of the entire membership”, in both the Senate and the House of Representatives, of two successive Samoan legislatures in addition to the approval of the Governor. Appeals could then be made to the Secretary of the Interior and the President of the United States. The protections are repeated verbatim in Article II, Section 9, which adds that: “…nothing in this section shall be deemed to permit any change in the law respecting the alienation of land…as provided in Section 3, Article I”. WS, Constitution of the Independent State of Western Samoa, (Mulinuu 1960), Articles 100 and 102. See also the Preamble. WS, Official Report of the Proceedings of the Constitutional Convention of Western Samoa 1960, (Mulinuu 1960) 81. Cf., Davidson, op. cit., 371. WS, Official Report, 803, translated syntax amended. … referring to the Faipule districts essentially established by Solf in 1905, albeit they had been increased from 27 to 43. An additional two seats were reserved for ‘individual voters’, or those not identifying themselves as ‘Samoan’. Only the chiefs and orators could vote and only they could stand for election. See Davidson, op. cit., 376. And to give the requested recognition, some argued, would be to elevate Tumua andPule over “other authorities embracing the…Royal Sons of Samoa”, as they had been prior to partition. WS, Official Report, 796. Ibid., 76. Furnivall, op. cit., 288, quoting Hailey, op. cit., 423, quoting Sir Donald Cameron. Read, op. cit., 253, 286. Furnivall, op. cit., 296. The concept of the rule of law has philosophical, procedural, and normative dimensions. Thus, in an ideal sense, for example, all people are subject to the same law, all have equal recourse to a court of law, and all have a right to be judged based on reason devoid of passion. See W. B. Harvey, The rule of law in historical perspective, Michigan Law Review59 (1961) 487–500. But see also D. Dyzenhaus (Ed.), Recrafting the Rule of Law (Oxford 1999) 1–12, and his discussion (on p. 2) of the claim that the state is the sole source of legitimate law. See also J. N. Sklar, Political theory and the rule of law, in A. C. Hutchinson and P. Monahan (Eds), The Rule of Law: Ideal or Ideology (Toronto 1987) 1–16, particularly her discussion of ‘the rule of law’, as outlined above, as “ruling-class chatter”. Cf., P. W. Kahn, The Reign of Law (New Haven 1997), who argues similarly (on p. 45) that “the rule of law may be our dominant political myth”. See, M. D. Olson, Regulating custom: land, law, and central judiciary in Samoa, Journal of Pacific History, 32, (1997) 153–179. As conceptualized by J. D. Thompson, Organizations in Action, (Englewood Cliffs 1967).