Abstract
Kruse maintains despite all the customary land preservation mechanisms, there is still opportunity for mischief under the current registration statutes. Kruse explains that not only has the High Court allowed individualized land holding, but the Fono has also made the individualization process relatively easy by passage of the Land Registration Act. The chapter points out that any individual can register a claim to any land not previously registered, which comprises majority of land in the territory. If no one objects within a proscribed period then the land may be individualized. Kruse scrutinizes the High Court’s application of British influences, Henry Maine and William Blackstone’s property concepts of the individual right that converted communal lands to individual ownership. Individual rights were applied and accepted by the High Court to evidence individual ownership over bush lands by applying European principles and concepts of old English law through adverse possession and individual rights.
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Notes
- 1.
Cook Islands Act 1915 (NZ), sec. 354; Sāmoa Act 1921 (NZ), sec. 268; Tokelau Amendment Act 1976 (NZ), sec. 20; exception to land ownership were freehold and customary lands.
- 2.
Lalomilo Kamu provides the pre-Christian concept of God from the Sāmoan perspective: “The question whether the Sāmoan views of the self-existent god Tagaloa have any bearings on the Christian views of God needs to be recognized. Based on the biblical traditions, God as the Christians believe, was there in the beginning. His word was the agent of his creation and nothing was created without him. He is the source and the creator of all things including ‘man.’ He is known as the God of creation; the God of Israel and he is also known as the national God of Israel even if God could never be nationally limited as such. From the Sāmoan creation story, god Tagaloa lives in the distant space or space beyond or in the sky (vanimonimo/vateatea). He was simply there in the beginning; the origin of the being was not the concern of the story. The details of the two creation stories are naturally not similar as they were evolved and developed from the life experience of the different people.”
- 3.
See also Fonoti Aufata v. Heirs of Niue Malufau, et al., H.C., LT. 60-1977.
- 4.
Avamua Dave Haleck appealed this court case and the Appellate Division of the High Court ruled in Haleck’s favor because the American Sāmoa Government prematurely applied for injunctive relief without first issuing a stop order, sanctions for such activity, and an administrative notice for public hearing. The Appellate Division therefore dissolved all injunctions and vacated all orders. Haleck is now free to apply again for a Land Use Permit and Project Notification and Review System to develop in this low-lying rainforest . See Haleck v. Am. Sāmoa Gov’t, AP 06-13, slip-op. at 16 (App. Div. Aug. 16, 2014).
- 5.
In 1962, the American Sāmoa Fono (legislature ) passed laws recognizing the concept of individually owned land without defining it but restricted its ownership to: (1) a full blood[ed] American Sāmoan or (2) a person who is of at least one-half Sāmoan blood, was born in American Sāmoa, is a descendant of an American Sāmoan family, lives with Sāmoans as a Sāmoan, has lived in American Sāmoa for more than five years, and has officially declared his intention to make American Sāmoa his home for life, see ASCA §37.0201 (1999) and §37.0204 et. seq. (1982).
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Memea Kruse, LN. (2018). Retention of Communal Lands. In: The Pacific Insular Case of American Sāmoa. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-69971-4_8
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