Jake King v. Honorable Rogers C. B. Morton, Secretary of the Interior of the United States

ROBB, lowing reasons: Before TAMM and Circuit HART,* Judge, Judges, and Chief Unit legislation 1. The and statutes of the District Court for the District ed States of American Government Samoa of Columbia. trial, jury for a provide do not Supreme Court of the United 2. The ROBB, Judge: Circuit has held States constitu- begun action In this in the United right jury to a trial does not tional District Court for the District of which were extend to territories presented Columbia to that incorporated into the Union. whether, court was under the Constitu- Rico, v. Porto Balzac States, tion of United an American (1922). 66 L.Ed. 627] [42 charged citizen with a crime in violation unincorporated of the laws of the terri- King was tried in American on Samoa tory of American Samoa was entitled to 11 and 1972. On October December jury. The by a trial District Court dis- 11, 1972, the Trial Division issued its jurisdiction. missed the action for lack of “Memorandum, Fact, Findings of Con- We reverse remand. Law, and Judgment”, finding clusions of American is an unincorporated Samoa King guilty willfully failing pay his territory of the United States consisting acquitting income tax and him of a cluster of small islands in the South failing willfully to file his 1970 income Secretary Pacific. The of the Interior is return. tax Government of American responsible administering the govern- King, (High Crim.Case No. 785 Samoa territory. ment of the Exec. Order No. Ct.Am.Samoa, Div., Trial decided Dec. 10264, C.F.R., Comp. 1949-1953 765. 11, 1972). 2, 1973, February On January On Jake King, suspended a citi- given was sentence and months, zen of the United States and a placed probation resident on for twelve American charged by in- part payment conditioned in on his of all formation filed the Trial together Division of taxes back with a fine of High Court American Samoa with and court costs of $250.00 $25.00. * Sitting by designation pursuant pro- to 28 U.S.C. tion U.S.C. § which 292(a). § vides: Any person required pay under this title to 1. Section 18.0405 has been recodified as 34 tax, required by estimated tax or or this Am. Samoa Code American Sa- by regulations authority title or made under adopted, changes, moa has with few the Unit- (other thereof to make a return than a re- ed States Internal Revenue Code of 1954. 34 required authority turn under of section Samoa Code §§ Am. Section records, 6015), keep any supply any or infor- provides: mation, willfully pay who fails to such esti- Any respect act or failure to act with tax, return, keep mated tax or make such Samoa income tax which con- records, supply information, such or such chapter criminal stitutes a offense under required regula- the time or times tions, shall, law or of subtitle A of the United States Internal penalties in addition to other adopted by Revenue Code of this by law, provided guilty of a misdemeanor chapter, against shall be an offense Ameri- and, thereof, upon conviction shall be fined prosecuted can Samoa in the $10,000, imprisoned not more than or appropriate Samoa name of American both, year, together more than 1 with the officer thereof. prosecution. costs of Chapter 75 of subtitle A of the United States Internal Revenue Code of 1954 includes sec-

King appealed Interior, his conviction to High Division Appellate deny by jury Court of of trial in crim- April American Samoa. On 1974 the inal cases in American Samoa un- Division its Appellate issued on their up constitutional face and as ap- holding King’s Relying plied conviction. plaintiff, that the defend- ”2 ant, the “Insular cases Balzac v. agents, appointees, employees, Porto his persons subject L.Ed. and all other to his (1922), the court held that the authority and control cannot lawfully guaranteed provisions pur- enforce these or act them; States Constitution did not extend to suant to persons tried American Samoa and (B) permanently That this Court en- imposition Anglo-Ameri that the defendant, join appointees, system upon can Samoa’s legal agents, employees, per- and all other arbitrary, structure “would be an illogi to his subject authority sons and con- cal, inappropriate foreign imposi and enforcing trol any judgment from tion”. of American Government Samoa against plaintiff criminal conviction King, App. (High v. No. Ct.Am.Sa according obtained without him a moa, Div., 1, App. April decided 1974). by jury; to trial of the Appellate The decision Division of (C) plaintiff That this Court award High the Court American Samoa is such other and further relief as may 15 final under Samoan law. Am.Samoa just equitable under the cir- (1973). Code 5104 cumstances. On one week after October 1973, May In before King’s conviction King’s Division had denied the Trial mo- Samoa, had become final in American the day tion for a trial and before the King Secretary both of the Inte- began Samoa, King his trial American summary judgment. rior moved The commenced this action in the United argument District Court heard on the the District Court for District of motions and afterward order dis- against Columbia jurisdiction. missed the case lack of Interior as administrator American King appeals. declare Samoa “to unconstitutional I. Jurisdiction of the Court District by jury denial of the of trial to an citizen charged American with a crime in Geographical A. Jurisdiction Samoa, a territory the court of American Since the District proffered no States.” Jurisdiction United explanation King’s for dismissing case 1331, 28 grounded upon §§ U.S.C. 1343 jurisdiction, for want of we must look to (1970). King and 1361 asked: argument government’s in this court (A) That this Court declare and ad- find the reasons for the to government’s argument decision. The provisions judge the Re- is that American Samoa, vised of American geographical Code is outside the Samoa High jurisdiction Rules of Court American bounds of the of the United regulations Courts,3 and the rules and States District and that conse- referred Appellate cases, The Division cited as “Insular properly collectively as the Bidwell, 1, De Lima Cases, Cases" v. U.S. Insular Tariff include, also in addition 743, (1901); Goetze 45 L.Ed. Dooley States, v. foregoing, to the v. United States, 221, 742, United 151, 62, 182 U.S. 21 S.Ct. U.S. 22 S.Ct. 46 L.Ed. 128 (1901); Dooley States, v. United Rings States, L.Ed. 1065 Fourteen Diamond v. 222, 762, 182 U.S. 21 S.Ct. 45 L.Ed. 1074 U.S. 22 S.Ct. L.Ed. (1901); Armstrong States, v. United 182 U.S. government argue 3. The does not that cases (1901); 21 S.Ct. L.Ed. arising Constitution, under the laws and trea- Bidwell, Downes ties of the United States in American Samoa (1901); and Huus v. New York 45 L.Ed. 1088 totally judicial power are outside the Steamship Company, Rico and Porto United States under Article III of the Constitu- 21 S.Ct. 45 L.Ed. 1146 These litigants arising under cannot “rule on Samoan courts laws those .quently does altering prevent of the United States affecting and the cus- matters courts from hearing district such peo- of the Samoan claims traditions toms jurisdiction when is otherwise proper. contends that the government ple.” availability of adjudi- The remedies in competent are courts Sa- may give courts litigants arising require- moan rise to a of Samoan cate claims ment that such so remedies be laws of United States exhausted under proceeding in courts, courts before the district district availability unnecessary. More- but cannot act claims is as a com- such over bar to district plete that if the doors of court proceedings. warned we are over here, to such Exhaustion is issue opened since courts the district King already appealed will has courts soon be the federal conviction claims highest court in concerning cases matters with Samoa. inundated halfway is at without the What issue is whether around world can bring ever this action in to handle such matters or the knowledge district court when alternative to order relief. remedies were available him the Samoan courts. government’s force the Whatever can, provided hold he We statutory there is some might against have in cases argument jurisdiction. basis for This or its government officers the Samoan mean that does not the door of the dis- interpretation involving applica open trict court is wide to proper- claims law,4 argument tion of Samoan has ly peculiar province within the of the application to this case. Here the no courts, but only that Samoan it cannot Secretary is the defendant sole plaintiffs be shut to Samoan properly Interior, and the issue is whether he has challenging the lawfulness of the actions government of Ameri administered of an official of the United States in accordance with the can re Samoa government. of the United quirements States Consti Clearly, Secretary tution. is within Assuming that the District Court re- jurisdiction geographical of the Unit upon exclusively government’s lied District Court for the ed District jurisdiction geographical argument Columbia, and that court is competent dismissing jurisdic- this case for want of Secretary’s judge the administration tion, we think the court erred. We do of American government Samoa hold, however, jurisdiction that and, standards if neces by constitutional for, below, explain as we proper, we can- ap to take sary, to order not tell from the record whether there any measures to correct consti propriate statutory a sufficient jurisdic- basis for Although may deficiencies. it tutional in this case. Accordingly, tion we must necessary for the District Court to remand the case for further proceedings, inquire into matters of Samoan law and do, we we but before examine briefly to determine the appli custom order jurisdictional each of the bases claimed cability principles embodied in the King. laws and Constitution States, applica this case focuses on the Statutory Jurisdiction B. Bases for principles bility of those and not on Sa and customs themselves. moan laws King jurisdiction first claims Furthermore, 1331(a) (1970), that courts under U.S.C. which adjudicate claims of competent provides: are

tion; only argues 4. See General United States District Constructors Co. of Nevada v. Morton, (D.Hawaii, jurisdiction, Civ. No. are courts of limited Courts decided 16, 1971), Sept. Congress has not extended those limits to involved the award of a government construction Samoa. This case contract include American does not present question Supreme American competitive Samoa on the whether basis of jurisdiction appellate bids received. over Court has decisions courts, the Samoan a rendered intimate no view. which we However, plaint. district courts shall have before origi-

The the District all Court could take any civil actions action nal the Trial High Division of the controversy the matter ex- Court of wherein $10,000, King value of Samoa convicted the sum or ex- ceeds sentenced costs, $1,098.26 him pay interest and and arises back plus clusive taxes interest, Constitution, laws, fine or trea- $250.00 under court costs Thus, the United States. when the $25.00. ties of cross-motions summary judgment were filed and Although King’s action is a civil action argued District Court the total arising under the Constitution and laws King’s amount of actual liability under States, we of the United cannot deter- this conviction was much $10,- less than the basis of the mine on record before us might have been even less had whether the action involves a “matter in the conviction been ap- overturned on controversy exceeds the sum or [which] peal. If the determination of amount in $10,000, value of exclusive of interest were controversy simple so might we This amount-in-controversy costs.” , well hold that King failed prove requirement prerequisite juris- is a necessary jurisdictional amount, even 1331(a), diction under section even in potential though his liability at the time cases in which fundamental constitution- complaint was filed $10,000, exceeded stake, rights al however difficult liability since his actual at the time the rights the valuation of such may be. case came before the District Court did Lynch Corp., v. Household Finance not. But the “amount in controversy” 31 L.Ed.2d here, which must $10,000, exceed is not As we have said in Gomez v. the cost to of his but conviction Wilson, U.S.App.D.C. 252 n. value of his by jury. to a trial (1973): 421 n. 56 F.2d value of certainly no less notwithstanding deep-seated So feel- liability than the incurred by King as a ing price-tagging of fundamental conviction, result of his but we cannot rights dangerous business, human say on the basis of this record whether it we realize that finding automatic more, is, if or how much. This required of the amount in controversy determination is for the District Court. just rights because such in issue may simplistic a more solution than King next jurisdiction claims 1331(a) will tolerate. § under 28 U.S.C. pro § which of establishing burden the amount vides: controversy in the person claiming The district courts shall origi- have jurisdiction, and the district court jurisdiction any nal civil action au- any juris- time whether the by law thorized to commenced dictional amount has been shown. any person: Acceptance McNutt General Motors 178, 189, (1) Corp., damages To recover injury for to person property, L.Ed. or or Wright, See 13 C. because A. Cooper, any deprivation right privi- Miller & E. Federal Practice and or lege States, citizen of the Procedure by any act done in of any furtherance King alleged complaint in his conspiracy mentioned in section 1985 controversy amount in in this “[t]he 42; of Title $10,000, case exceeds exclusive of inter (2) damages est and costs.” recover King any When filed his To from prevent he complaint yet person had not tried who fails to been in or aid wrongs possible preventing any American Samoa and faced a mentioned penalty greatly maximum in excess of in section of Title 42 he which $10,000. Normally, jurisdictional knowledge amount had were about to occur prevent; as filing is determined com- and the plainly obligation defined deprivation, under (3) redress To law, statute, Hull, Hammond v. peremptory.” ordi- act is any State color nance, U.S.App.D.C. 131 F.2d usage, custom or of 76 regulation, denied, (1942),cert. immunity or se- any privilege right, (1943) 87 L.Ed. omit of the Unit- by the Constitution [footnote cured Thus, the writ is not available to by any Congress Act of ted]. ed States King Secretary unless the equal rights of citizens Interior for providing established”, “clearly jurisdiction “plainly has a within the persons all or of States; “peremptory” duty, defined” ad of the United ministering government of America damages or to secure (4) To recover require government any under Act or other relief equitable provide by jury guaranteed for trial Congress providing protec- by the United States Constitution. rights, including of civil tion Secretary duty Whether the has such a to vote. jurisdictional question, ais which cannot 1343(1) (2), which give Subsections inquiry without be answered into the jurisdiction court over civil the district King’s merits of claim. That inquiry damages”, recover cannot actions “[t]o should be made the first instance action for King’s the basis provide District Accordingly Court. remand declaratory judgment injunctive re- proceedings appropriate. for further 1343(3), Nor can subsection which lief. depriva- to actions to redress the applies Right by Jury II. The to Trial rights under color tion of fundamental American Samoa law, support King’s claim that of State importance King’s Because of the the laws of Samoa and under claim we have decided constitutional of the Inte- regulations of jurisdictional problems that the discussed deprived he has been of his constitu- rior be resolved before that must claim above by jury. to trial This leaves tional finally adjudicated. In addition to 1343(4), gives which subsection dis- problems there those is another obstacle jurisdiction over trict court actions prevents reaching us from brought Congress pro- “under Act of claim, King’s and we think it merits viding protection rights”. for the of civil to add a few words to assist the proper Act, applicable cites no such Court on remand the event District Interior, Secretary of and we can jurisdiction. it has that court finds We none, find so cannot be however, doing that in so we emphasize, 1343(4). founded on subsection Accord- proper no as to the ad- intimate that 28 ingly, we hold U.S.C. § jurisdictional judication of issues we provide jurisdictional a (1970) does not raised. have King’s action. basis for King’s argument that he is entitled to jurisdiction 28 King also claims under in American jury tidy a trial Samoa is a provides: which 1361 U.S.C. only admits that He “funda- syllogism. origi- courts shall have The district rights apply constitutional mental” to any action in the jurisdiction nal unincorporated territories such as Ameri- compel to an of- mandamus nature Cases, supra Insular Tariff can Samoa. the United employee of or ficer 2; Mankichi, v. note Hawaii 190 U.S. perform thereof to a agency 787, 197, (1903); 23 47 L.Ed. 1016 S.Ct. plaintiff. duty owed States, 138, 195 v. United U.S. 24 Dorr 808, (1904); 49 L.Ed. 128 Balzac only duty is a owed to v. Not S.Ct. 298, Rico, 343, necessary give 258 U.S. 42 to the dis Porto S.Ct. 66 plaintiff (1922). He under 627 also concedes that section L.Ed. court trict said, Supreme has “The Court has held that this court but as by jury is not only duty right used when the to trial “fundamen- be writ should Mankichi, clearly v. Dorr v. Unit- to act is established tal”. Hawaii officer States, v. by principles Balzac Porto supra. applying ed of the earlier But, says, Supreme cases, he as controlled their Court has re- respective contexts, position its in versed those cases to situation as it exists in right by jury today. to trial Samoa held the to American As be Mr. Justice Duncan v. in v. Louisiana, Covert, “fundamental”. Harlan wrote Reid 88 S.Ct. U.S. L.Ed.2d S.Ct. L.Ed.2d 1148 J., Baldwin v. (1968); York, (1957) (Harlan, New concurring result), particular setting, U.S. “the local practi- L.Ed.2d 437 So, concludes, necessities, he possible cal and the alterna- jury applies to trial question American tives relevant to a judg- Samoa. are ment, namely, jury whether trial should King’s The feature of argument necessary a be deemed condition pause gives logic us is its but its Congress’ power exercise of to provide generality. Chief Justice Marshall of Americans for the trial overseas.” against basing warned decisions on bare general principles enunciated other importance of The the constitu cases: at tional stake makes it essential maxim,

It ais not to be that a decision in this case rest a disregarded, on solid general expressions, understanding present every legal and opinion, are to development be taken in cultural American Sa connection with the case in understanding which those moa. That cannot be expres- are they go sions used. If beyond opinion; based on unsubstantiated it case, they may respected, Specifically, but must be based facts. ought control judgment not to in a must be determined whether the sub- suit, sequent when the point mores and matai culture very with its strict is presented for decision. The distinctions will a reason of societal accommodate this maxim is obvious. question jury system The in which a defendant is tried actually before the peers; court investigat- before his whether in Sa care, fairly ed with considered moa could determine the its full facts of a principles extent. Other case in accordance with the instructions it, serve illustrate being of the court without unduly considered in influ their relation decided, case enced customs and traditions which but possible bearing notice; their on all law no the criminal takes other cases seldom completely implementation investigat- whether of a ed. short, system practicable. would be In whether American Sa v. Virginia, Cohens (6 Wheat.) U.S. “circumstances are such that moa 264, 399-400, 5 L.Ed. by jury impractical would and anoma simple words opinions King cites Covert, lous.” Reid important are not as as the contexts in system That the Samoan at 1260. which those cases were decided. The justice respects in many criminal Balzac, Dorr, Hawaii and the Insular system the Anglo-American similar cases all Tariff involved unincorporated supply spe the answer to this does territories similar question. cific crucial Nor is the but at time much earlier in our na- found in failure of the answer to be history. tion’s Those cases have never Constitution, originated by the Samoan overruled; been specifically, they have people, provide by for trial Samoan by not been overruled the Duncan and cases. jury in criminal cases, Baldwin which dealt with the by jury to trial summary in In of his support states motion rather unincorporated than judgment King in the District Court re- territories. The de- present cision in the case upon provisions does lied various not Sa- de- pend key on words such as moan and Code which as- Constitution “fundamen- tal” “unincorporated or of American territory” similate features criminal in opinions, placed those but can Reliance was also on procedures. be reached only to determine whether position summary information and belief an affidavit judgment party appropriate. for either counsel, King’s Samoan ef- from logistics so as are fect that far concerned ordered. So trials in feasible. Final- jury Samoa TAMM, Judge (dissenting): Circuit by a law review article ly, cited a question raises the This case whether intern in Office of the Attor- former guarantees jury trial as embodied ney of American General Samoa are applicable in our Constitution (Some the Judiciary Observations on territory of American Samoa. After as- Samoa, 18 American U.C.L.A.L.Rev. 581 suring is proper, I an- (1971)). government countered with question affirmatively. swer that provisions of Samoan Constitution Code, report and a 1970 on the future Background I. political status Samoa submitted to '3, 1972, January appellant On Jake legislature and a citizen, King, an charged American Judge from the Chief letter Samoa to by in the Trial information Division of the Department Solicitor High of American Samoa with Interior, dated October Having 1961. pay willful failure Samoan income tax these examined materials we find them to file an income tax and return with inadequate supply an answer to the Tax Office of Samoa violation of question presented here, important and 7203 of the section Inter States support therefore insufficient to judg- adopted nal Revenue Code of party. ment for either On the basis of 18.0405 of the section Revised Code of belief, affidavit on an information and American Samoa.1 The maximum penal parte years old, an ex letter fourteen charge $10,000 on each is a ty fine of or journal legislative law article and a re- imprisonment year, for one or both. On appears to be port largely irrele- the Chief October Justice of say vant no one can with certainty King’s American Samoa denied Mr. mo by jury whether trial in Samoa would be trial, tion for a stating: impractical anomalous. The answer legislation 1. The and statutes of the must come from more Government of American of actual Samoa existing solid evidence con- provide trial, do not for a jury reason, ditions. For this since we have probable juris- determined there is 2. The Supreme Court of the United in the District diction Court we reverse has held that the constitu judgment its and remand the case to a tional trial does not proceedings further which an ade- extend to territories which were factual record quate developed. incorporated into the Union. When the facts have been v. Porto found Balzac (1922).2 elucidated the District Court will 66 L.Ed. 627 be in a 42 S.Ct. (other App. of American a return than a 10. The Government thereof to make re- 1. Item relatively authority adopted, required with minor al- under of section Samoa has turn records, teration, any supply any 6015), keep or infor- the United States Internal Revenue mation, willfully pay fails to such esti- Section 18.0405 of the Revised who Code of 1954. tax, return, keep enacted in tax or make such of American mated Code 8-1, records, information, supply No. now codified at 34 such Pub.L. or Am.Samoa such regula- required makes “a crimi- law time or times or § Am.Samoa Code chapter tions, shall, penalties under 75 of subtitle in addition to other F[A] nal offense law, guilty provided States Internal Revenue Code of of a misdemeanor of the United thereof, against and, upon offense shall be fined ... an conviction $10,000, pro- imprisoned Id. or . . . .” 26 U.S.C. not more than § Samoa both, year, together or with the vides: more than prosecution. costs of return, supply failure to file 7203. Willful information, App. Interestingly, pay Item 13. or tax. Chief Jus- statutorily required pay empow- Any person tice of American Samoa is under this title to does, to, tax, judge required by sit as a trial tax or this ered in the estimated High authority by regulations Trial Division of the Court. made under 5 Am.Samoa title or 408(c). Code § later, week Mr. trial in King Samoa, One commenced American in action the District Division Appellate this Court for the affirmed the Columbia, seeking judgment of the Trial declaratory District Division. Govern- injunctive Morton, relief. King v. ment of American King, Samoa v. No. 2030-72, Complaint (D.D.C., 8-13 (High Ct.Am.Samoa, Civil No. 63-73 at App. 10, 1972). Div., 1, April 1974), App.Gov’t filed Oct. Jurisdiction filed was Br. upon 1331, premised 1343, 28 U.S.C. at 10a-15a. §§ 2, id. and 1361 and the relief court, parties In this is- raise two was clear and prayed for concise: First, whether the District Court sues. (A) this That Court declare and ad- possesses District Columbia for the provisions judge that of the Re- entertain the jurisdiction to instant ac- Samoa, Code of American vised Second, think that it does. since tion—I High Rules of the Court of American proper, parties are not Samoa, and the rules and regulations to any disagreement material issue in Interior, of the of the fact, pure and all that remains is a right of deny jury in crim- law, I perceive no reason to eases American inal Samoa are un- a decision on the delay further merits on constitutional their face as ap- court; remanding this case the district plaintiff, and that plied to the defend- thus, justice, in the interest of ant, agents, appointees, his employees, reach and resolve ultimate is- would persons subject other and all to his of whether the United States Consti- sue authority and control cannot lawfully that, requires in prosecutions for tution provisions these enforce or act pur- criminal offenses serious them; suant to the accused afforded (B) That this Court permanently en- it by jury think that does. to a trial —I defendant, join the appointees, his agents, employees, and all other per- II. Jurisdiction subject to his sons and con- authority enforcing any judgment trol from elaboration, Without further against criminal conviction plaintiff judge simply district dismissed this case without according obtained him a jurisdiction.” for “lack of The district by jury right to trial . felt compelled court have to defer Id. at 67. On cross-motions for summary proceedings to the based upon judgment, 8, the trial judge, on June principles equity, comity and fed 1973,dismissed the case for juris- lack of expressed by Supreme eralism. diction, appeal and this followed. Harris, Younger 37, U.S. 746, 27 During pendency (1971) though S.Ct. L.Ed.2d district action, King jurisdictionally court Mr. was not barred tried from However, judge hearing regardless American Samoa. He case. was ac- quitted applicability of willful failure of Younger to file a to terri tax return, guilty .but found proceedings, torial court willful Martinez v. fail- pay ure to his 1969 of Puerto income tax. Commonwealth App. F.Supp. (D.P.R.1972); 14 at 17. 902-04 February Item On see suspended imposition Po, v. Mo Hock Ke court tence, Lok the sen- Stainback 368, 383-84, placed King Mr. probation L.Ed. months, (1949); and fined Ackerman v. plus Long twelve him Int’l $250 App. court costs. Union, $25 Item 15 at shoremen’s and 1-2. Warehousemen’s Thereafter, (9th he appealed Cir.), F.2d 868-69 Appellate 187 nied, cert. de Court, High Division L.Ed. asserting, alia, (1951); Rodriguez Maiz, that the inter trial court Rivera v. erred denying F.Supp. (D.P.R.1971), motion for a trial. Holding there of Mr. prosecution is no in American constitutional Sa- 1150 incomplete us is course,3 the record before gard, full run its and now

moa has thus, jurisdiction cannot rest restraint, on judicial as the Govern federal concedes, longer necessary is no on ment bar, I In absence of this am this basis. my with 1331 While concern could obligated inquire as to a nevertheless court, allayed in the district been have jurisdiction before for basis proper concerning raised 28 U.S.C. problems the merits. reaching 1343,5 jurisdictional complement § court, ju statutes, appellant alleged rights civil are insur In district various Quite plainly, 28 pursuant to U.S.C. 1331 the case sub §§ risdiction mountable. (civil rights), against 1343 a federal official question), is a suit (federal judice blush, only; At first (mandamus). equitable section relief for 1361 defendant, however, is the sole this the Interior of appealing; 13314 damages. not seek As $10,000 appellant amount does record, jurisdictional 1343, 2 barrier, such, 1 and of section significant paragraphs raises a requirement plain terms concern appellant’s by federal their ac of the value since damages,” recover inappli that amount. exceed See tions must claim “[t]o Likewise, 1343(3) Wilson, fails to U.S.App.D.C. 155 cable here. v. Gomez jurisdiction “applies only since it and n.56 sustain F.2d 477 infringements rights of by alleged under is not diminished problem law’ poten State Mr. faced ‘color mere fact $20,000 ... t]hus, against in the suits penalty of tial [and alleged deprivations action was officials for at the time this federal prosecution because, rights, it is necessary to in the district court of constitutional satisfy initiated amount-in-controversy re by jury, po tried he were if even jurisdiction.” remain constant. for federal liability quirement would tential nonetheless, Corp., he Finance is, Lynch conceivable that Household It 1113, 1119, showing in district made a have could (1972) (citations requisite omitted). to sustain L.Ed.2d sufficient court Laird, paragraph Tatum v. remains is which was amount. What jurisdictional by Rights 444 F.2d to section Civil U.S.App.D.C. added grounds, on other (1971), rev’d Act of 1957. Stat. and n.6 1343(4) Although 33 L.Ed.2d 154 does not contain the 92 S.Ct. any phraseology 1 Moore's Federal law” generally “color of State (1972). See history, 110.91, 1343(3), legislative In this re- its brief 0.95-0.96. neither Practice any privilege Congress provided Supreme or 3. While has vation of a citizen for States, by judgments any of final act done in Court review of the United rendered any conspiracy Supreme mentioned in Court of Puerto furtherance of 28 U.S.C. 42; (1970), judgments 1985 of Title § 1258 some section ren- (2) damages any person from dered the Federal District To recover Courts of the Zone, Guam, prevent preventing Islands, Virgin or to aid in and the who fails to Canal any wrongs in section provi- mentioned 1985 of U.S.C. there is no § such knowledge regarding High 42 which he had were about sion Title of American prevent; to occur and Samoa. deprivation, (3) To redress the under color 1331(a) (1970) provides: 4. 28 U.S.C. § statute, ordinance, law, regula- any State original (a) courts shall have The district tion, usage, any right, privilege custom or jurisdiction all civil actions wherein the immunity by the secured Constitution or controversy exceeds matter sum or by any Congress Act of States or the United $10,000, exclusive of interest and value of rights equal providing of citizens or of all costs, Constitution, arises under persons within the of the United laws, of the United States. or treaties States; (1970) provides: 5. 28 U.S.C. damages equi- (4) or to secure To recover original ju- any shall have The district courts under Act of other relief Con- table or civil action protection risdiction of authorized gress providing for the of civil by any person: including law to be commenced rights, to vote. (1) damages injury to his To recover property, depri- person or because of the provides 1361 R.Rep.No.291, Cong., 85th 1st Section that Sess. dis “[t]he H. original jurisdic courts shall have (1957), Cong. U.S.Code & trict 11 Admin. News, 1957, p. 1966, nor subsequent any its of action in the nature of tion man interpretation, compel e. judicial g., Bivens v. to an officer or employee damus Agents, any Unknown Federal Narcotics of United States or Six agency 388, n.1, 1999, 398 91 perform duty 403 U.S. S.Ct. 29 thereof to a owed to the (1971) J., (Harlan, Unquestionably, plaintiff.” L.Ed.2d 619 the purpose concur ring judgment), citing provide in the section was to jurisdiction 409 F.2d of this 718, (2d 1969); 720 n.1 Cir. federal district Ramirez v. in all courts over actions 363 Weinberger, F.Supp. 105, (N.D. could previously 108 which have been Ill.1973) (three-judge court), brought in the only aff’d District Court with 970, opinion, 1553, 415 S.Rep.No.1992, out U.S. 94 S.Ct. the District of Columbia. (1974), 867 Cong., (1962), L.Ed.2d 2d Sess. 2 39 indicates that it 87th U.S.Code Admin.News, 1962, encompass Cong. was intended to p. actions of & 2784. See 1343(4) officials. While Note on the federal has been also Jurisdictional Amount as successfully asserted juris Requirement basis for Suits Challenging the officials, see, Validity over actions of state Action, diction of Federal Government g., Wilwording Swenson, Bator, Mishkin, e. v. D. 404 P. P. Shapiro U.S. & H. 249, 251, 407, Wechsler, 92 S.Ct. 30 L.Ed.2d 418 Hart and Wechsler’s The Fed (1971); v. Elections, Allen State Bd. of System eral Courts the Federal 544, 554-57, (2d 89 817, 1973); 393 U.S. ed. 4 Wright S.Ct. 22 1160-61 C. (1969), appellant cited, Miller, L.Ed.2d 1 has not A. Federal Practice and Proce uncovered, 1107, not have at 421 so much dure and n.68 (1969); § Ja case, single 1343(4) holding be a The Effect of prop coby, Recent Changes in jurisdictional er “Nonstatutory” basis over Law of actions of Judicial Re Moreover, view, federal officials. even 53 Geo.L.J. 19 assum Courts have ing existence of such authority, subsequently held 1361 to ap be an indepen pellant proffered has not “any grant jurisdiction of federal Act of dent regard Congress providing for the protection controversy. See, of less amount in rights,” civil officials, Treasury directed g., Employees federal e. National Un 1343(4) upon jurisdiction Nixon, which U.S.App.D.C. 321, ion v. 160 could be 492 587, (1974); Moor v. County Peoples asserted. See of 592 v. Alame F.2d da, 693, 702-03, 411 1785, of Dep’t Agriculture, U.S. 93 S.Ct. 138 U.S. 291, L.Ed.2d 596 36 427 App.D.C. wherein a F.2d similar 564-65 deficiency plaintiffs (1970); Resor, befell v. relying Jarrett upon 426 F.2d (1970). Thus, (9th 1970); 42 U.S.C. Seamans, § Cir. Carter v. herein, light (5th record and in 1969), consid 411 F.2d Cir. cert. above, denied, erations discussed I would hard-pressed jurisdiction (1970); McNamara, find L.Ed.2d Ashe v. under (1st either 28 U.S.C. 1331 or 1965). § 1343. F.2d Cir. § How Conse ever, there an only remains quently, prerequisite alternative ju basis to 1361 appellant which is that alleged, complainant risdiction show and which I think properly jurisdic vests the defendant-official owes him a tion—28 U.S.C. 1361.6 nondiscretionary If, § duty act. hour, appellant At 6. the eleventh has raised in 20 L.Ed.2d 554 Absent jurisdictional allega- briefing two additional this court the issue more elaborate corpus my parties regarding tions —habeas section 10 view and in decision Act, Procedure Administrative U.S.C. I think it defer U.S.C. best to § these any questions. 701-06. There is a serious wheth- Neither do I see §§ reason to re- custody claim, which, best, appellant’s Mr. was in sufficient er at the APA at solve filing 701(b)(1)(C), of this time of the action to maintain dubious. See U.S.C. corpus, petition “agency” for a writ as a habeas see term that the not states does include LaVallee, governments Carafas “the the territories.” have been dismissed event for not “clear and indis- course, duty is indispensable join an party, failure id. “ministerial,” is, then putable,” Finally, as to Secretary simply will lie. mandamus Interior, merely the court opined Constitution King asserts Mr. process without service on all of right to he be afforded the requires that subordinates, could not therefore, that the Sec a retary acts, for their responsible held id. at Interior, the exercise of the of 5-6. territory authority over the plenary Samoa, Exec. Order of Second, the Government raises the provide must Fed.Reg. prospect that plain- draconian “[u]nder that right. As implementation jurisdiction, theory tiff’s the federal III part will demon the discussion courts of this circuit would be compelled strate, King’s threshold is assertion Mr. federally-cognizable griev- to hear all duty clear, Secretary’s is as correct—the by both civil and ances raised criminal under section 1361.7 jurisdiction is Gov’t.Br. litigants in at Samoa.” 38. I am the though Appreciative Govern- undertaking discussion, Before that I caseload, concern for our ment’s I think to comment am constrained briefly upon jurisdictional holding is this narrow and points two additional by raised the hardly encompasses “all federally-cogni- Government, both concerning jurisdic- grievances” proceed- all zable Samoan First, tion. the Government claims that Quite frankly, jurisdiction ings. if federal possess- none of the lower courts appellant’s right vindicate constitutional capacity es the to effectuate a judgment is, proper, I think it then I perceive in this case because “Samoa is outside notion that the no room for the court’s geographical reach.” Gov’t.Br. at [their] swayed by should be judgment “flood- simple 36. answer is that our gate” considerations. judgment could be by effectuated Interior, Secretary of ju- over whom indisputable. risdiction is Having Merits antici- III.

pated response, this the Government A. baldly presence that asserts Secretary IV, as a defendant does not affect Article section clause 2 of the premise, its initial force of citing provides the Constitution Con- “[t]he solitary, unreported decision dispose shall have Power to gress General of and Morton, Regulations Constructors Co. Nevada all Rules and make needful (D.Hawaii, Territory Civil No. 71—3409 respecting the or other Sept. Proper- filed 16, 1971), Ex. A. I Gov’t ty belonging find this argu- ment unpersuasive by . to trial General Con- .” The wholly structors inapposite. guaranteed prosecutions by General criminal Constructors was issued III, clause 3 of orally, and the article section the Con- judge forthrightly Crimes, district of all Trial expressed his stitution —“The ex- concern that his treatment Impeachment, cept in Cases of shall be issues by expeditious was colored Trial shall be by Jury; nature of Moreover, and such held in proceedings. at Id. 1. the said where Crimes shall the State committed; fully distinguishable decision but from have been when not State, instant case on grounds: several within the Trial committed involved; was not Place or no shall be at such Places as the presented, directed;” federal Law have Congress may by since os- tensibly the case by concerned the sixth amendment —“In all contracts and Government bidding proce- prosecutions, criminal accused shall dures, 6-11; and, enjoy speedy id. at to a public case would process proper pursuant passing venue is was served on note in 28 U.S.C. and, 1391(e)(1970). of the Interior the defendant history. trial, impartial judicial an It is State unfortunate that wherein crime shall have the cases could not have district been deter . . . with a preponderance committed Resolution mined such been opinion of this case as to the merits involves the consistent have satisfied provisions profession of these and re- and the country interaction a jurisprudential corpus likely the conclusions were turns us to be ad the century the turn of hered to the court. evolved Until some rea to one of the most perplexing consistency sonable response unanimity of legal issues in our Na- and controversial reached the court upon history the vernacular of the we questions, hardly tion’s these can expect —in time, whether the Constitution follows their conclusions to be final and be Flag. yond revision.10 presented was first The issue consistency The “reasonable and unanim- in what are commonly Supreme lacking in ity opinion,” cases, the first the Insular Cases.8 The earli known shortly provided thereafter by the cases, g., of those e. est Downes v. Bid States, v. in Dorr United 195 Court U.S. 244, well, 770, 21 808, 182 U.S. S.Ct. 45 L.Ed. 138, 49 L.Ed. (1904). 24 128 S.Ct. Bidwell, (1901); De Lima v. 1088 182 question presented The in Dorr was 1, 743, (1901), 21 S.Ct. 45 L.Ed. 1041 U.S. “whether, in the absence aof statute of concerning import the lawfulness of tar expressly Congress conferring the right, brought into goods iffs the United necessary by jury incident of newly then acquired from our ter States in the judicial procedure Philippine Is- Rico,” ritory “Porto left the Court lands, where demand for trial by that 9 sorely on the underlying divided issues. by has been made accused, method the contemporaneous commentator One the by denied courts established in that: opined 139, the islands.” 195 U.S. at 24 S.Ct. at Cases, Insular The in the manner in opinion In course of 809. the for the reached, Court, which the results were the Day Mr. Justice initially reiterat- results, incongruity and the va- elementary propositions: ed several first, riety expressed of inconsistent views “that the Constitution of the United court, members by the different only power source States autho- are, believe, parallel without in our rizing by any action branch of the Fed- purposes, (1922). may technically 8. definitional For term “Insular While this not be cor rect, Bidwell, 2, as used in this Cases” refers to those De Lima v. 182 U.S. at 21 743; States, v. cases decided its 1900 and S.Ct. Dorr United 195 U.S. at 135, 808, concerning applied goods 1901 terms tariffs 24 S.Ct. the Court itself has subse entering quently the United States from our then utilized this characterization in refer recently acquired territories Covert, Puerto Rico ence to all of the above cases. Reid v. Bidwell, 1, Philippines, n.22, 1222, and the De Lima v. 182 354 U.S. 12-13 and 77 S.Ct. 1 1, 743, 1148; (1901); (Harlan, J., U.S. 21 S.Ct. 45 L.Ed. 1041 L.Ed.2d 354 U.S. at 65 n.3 States, 221, result). concurring v. United 182 U.S. 21 Goetze S.Ct. 742, (1901); Dooley L.Ed. 45 1065 v. United 9. Some of the issues the Court faced in the States, 222, 762, 21 182 U.S. S.Ct. 45 L.Ed. earliest Insular Cases were foreshadowed (1901); Armstrong States, 1074 v. United 182 Randolph, Aspects Constitutional of Annexa- 827, 243, (1901); 21 S.Ct. 45 L.Ed. U.S. 1086 tion, (1898); Langdell, 12 Harv.L.Rev. 291 The Bidwell, 244, 770, v. Downes 182 U.S. 21 S.Ct. Territories, Status of Our New id. at 365 (1901); 1088 v. 45 L.Ed. Huus New York and (1899); Baldwin, The Constitutional Questions Co., 392, Steamship Rico 182 Porto U.S. 21 Acquisition Incident and Government 827, Dooley (1901); 45 L.Ed. 1146 S.Ct. v. Territory, the United States Island id. at 393 States, 151, 62, 183 United U.S. 22 S.Ct. (1899); Thayer, Possessions, Our New id. at (1901); Rings Fourteen L.Ed. 128 Diamond (1899). 176, States, 59, United U.S. Littlefield, Cases, 10. The Insular plus Mankichi, (1901), Harv.L. Hawaii v. L.Ed. 138 169, Rev. 787, See also The (1903); Insular 23 S.Ct. 47 L.Ed. 1016 Supreme Court, Tariff Cases in the States, id. at 164 United 195 U.S. Dorr v. 24 S.Ct. (1901); The Results Cases, in the Insular (1904); id. at 49 L.Ed. 128 and Balzac v. Porto 258 U.S. 66 L.Ed. 627 Relying apply. upon government ‘The al would Hawaii v. government. eral Mankichi, 23 S.Ct. was born of the Con- States the Court held L.Ed. powers enjoys all which it stitution, and guarantees apply: did not those must be either derived may exercise by implication from that in- expressly or farther, go “We even say would second, that “the United strument’ all, most, privileges if not territory acquire in the exer- contained in the immunities Bill of treaty-making power . . . cise of Rights of the Constitution were in- Congress is third, expressly and granted by from the apply tended to moment of IV, pow- article section 3 the annexation; place we our but decision territory. Id. at such govern er to upon ground of this case Regarding the extent of 24 S.Ct. at rights alleged to be two violated in territories, power over Congress’ to trial [rights by jury case this Court stated: grand jury] are presentment nature, their but fundamental con- expressly the exercise granted merely procedure a method of cern govern territories is not practice sixty years of had limitations. without to be suited to the shown conditions of islands, and well calculated to con- rights their serve citizens which are to applied limitations lives, property their their involving their case given territorial being.” well depend upon must the re- government the particular territory the lation of Dorr, 144-45, 811, 195 at 24 at U.S. S.Ct. States, concerning which Con- United gress Mankichi, quoting at 217-18. Notably, exercising power the conferred the pragmatic the Court also discussed That the United by the Constitution. considerations, e., i. “the uncivilized territory, have which is States archipelago of were parts wholly the un- into incorporated the United not the fitted exercise of by trial we body politic, as a think was 145, Id. 24 at 811. jury.” at S.Ct. framers by the of the Con- recognized Rassmussen v. Aside from United enacting the article al- stitution States, 516, 197 514, 25 S.Ct. U.S. considered, giving power ready over jury which held L.Ed. trial territories, and is by sanctioned the territory of applicable to the Alaska be- justices the concurring of opinions “incorporated” it had been cause into the Bidwell, in Downes v. judgment in the States, the next and final major United 21 S.Ct. 45 L.Ed. U.S. [182 treatment of these issues was in the (1901)]. opinion in Court’s unanimous Balzac v. shall see Congress fit to incor- Until Porto U.S. S.Ct. territory by ceded treaty into porate (1922). Beyond its L.Ed. ultimate States, we regard it as set- the United holding provisions constitutional that the that territory that decision tled regarding jury apply trial did not to the under the governed ex- is to be unincorporated territory of Rico,” “Porto Congress to make laws for isting for two important the case other rea- territories, subject to such such First, what sons. it delineated should restrictions upon the constitutional should be considered in not deter- body as are applicable of that powers territory mining whether is “incorpo- situation. Simply put, into the Union. rated” it “incorporation 142-43, resolved that is not at 810. to be The Court Id. at express declaration, without assumed or applicable that the trea- then determined implication strong an so to exclude “incorporated” ty Philippines had Id. at any other view.” S.Ct. at States and in con- into the United this longer incorporation No could text, of whether turned Congress; implied from acts anything guarantees jury tri- the constitutional government inoperative “express they declaration” Con- when of an short “incorporate” intent become inconvenient when expedi- would gressional Second, dictates otherwise ency very while it is a clear dan- suffice. held, authority gerous on doctrine and if the Court allowed to that destroy Dorr, trial was not flourish would that benefit of a appli- and therefore not written Constitution and undermine “fundamental” Rico,” equally government. basis our “Porto clear If our cable holding foreign commitments against made become of this such perception of the Court’s nature that Government backdrop can no society satisfactorily operate longer and culture in 1922. Rican within Puerto 309-11, Constitution, 42 S.Ct. 343. laid down bounds at Id. can instrument amended sum, fairly it can be said that the In prescribes. the method which it essentially stand for Cases two Insular (1) incorpo for territories (footnote Id. at propositions: omit- States, into the Consti ted). rated proprio vigore, (2) ex applies tution Justices Frankfurter and Harlan filed unincorporated territories, only “fun for separate concurring opinions in which rights apply.11 constitutional damental” view, they expressed their alia, inter However, analysis here, cannot end that Justice Black’s swept too subsequently the Insular Cases were broadly in regard to the Insular Cases. when severely reasoning criticized their opined Justice Frankfurter Covert, Reid resurfaced were cases still valuable for analy- their 1 L.Ed.2d 1148 77 S.Ct. cases, sis: “The territorial in the empha- question in Reid was whether the put by necessity sis them the for con- guarantees constitutional sidering specific circumstances applicable in proceedings were against case, particular each are thus relevant in dependents civilian of military personnel they provide an illustrative method foreign in a country. stationed In harmonizing provisions constitutional plurality opinion answering this question appear, separately considered, to affirmatively, Mr. Justice Black conflicting.” ad- be Id. at at S.Ct. Cases, dressed the Insular (Frankfurter, J., reiterated concurring in re- holdings, their basic above, sult). discussed Implicit in this thought approv- is 12-13, at id. proceeded S.Ct. and al of the Insular Cases for their consider- distinguish to and disapprove them: peculiar ation of characteristics Id. 51-53, relevant territories. at

The “Insular Cases” can be distin- Justice clearly S.Ct. Harlan guished present from the cases in that interpretation: agreed with this they power involved the Congress provide to regulations rules and me seems to that the basic teach- [I]t govern temporarily Ross, territories with re ing Ross [In wholly dissimilar traditions and insti- 35 L.Ed. and the 581] tutions whereas here the basis gov- Insular Cases is that is rigid there no ernmental is American Congress, citizen- abstract rule that and as a ship. Moreover, . . it is our precedent to exercising pow- condition judgment that neither the overseas, cases nor er over Americans ex- must reasoning their should be given any subject guarantees all ercise it expansion. Constitution, further concept The that no matter what of Rights the Bill and other constitu- the conditions and considerations are protections against tional arbitrary spe- that would make adherence to a analysis (3d Note, 11. For 1966); an excellent Law Inven- tional ed. Insular Coudert, Statesmanship Cases see The tive vs. Evolution of The Territorial the Doc- Clause: Incorporation, Constitutionality Agreements trine of Territorial Limiting The 26 Colum.L. Powers, See also P. Territorial Kauper, Rev. 823 Va.L.Rev. Constitu- when history that was not altogether impractica- con- guarantee cific “fundamental.” sidered Obviously, To but Dun- take one and anomalous. ble significantly can has undermined v. Porto that Balzac example: There can be premise. question no good authority not that U.S. jury to a trial in serious jury that trials need never crimi- proposition nal is now eases “fundamental” —“ for American citizens tried ‘basic provided be ” “ abroad; system jurisprudence,’ in our but the ‘es- United States ” trial,’ authority sential to fair proposi- “necessary for the good case is Anglo-American regime to an rigid is no rule ordered tion that there at liberty.” n.14, 149-50 and always provided must jury trial overseas, 1447. The relevance of S.Ct. at Duncan of an American if the trial jury trial in relation such that trial American Sa- the circumstances presently. moa be addressed will jury impractical would be words, In other what Ross anomalous. B. Insular Cases hold is that and the setting, practical local particular necessities, parties agree All that American Sa possible alterna- “incorporated” moa is not into the Unit question to a tives are relevant ed States. This conclusion is manifest namely, judgment, whether trial from both instruments of cession to necessary deemed a should be condi- States, Congress’ accept Congress’ power the exercise of tion of ance thereof.12 It is clear that there is provide for the trial of Americans implied express no declaration of in overseas. corporation any of these documents. 74-75, J., (Harlan, at 1261 Hence, only Id. fundamental constitutional result). concurring in rights be applicable can to American Sa question moa. whether Black’s did While Justice right. Mr. King argues such a Court, majority of the carry a am conclusively question Duncan settled the opprobri- left with sufficient nonetheless and, there are no since additional barri bring Insular Cases to for the into um implementation ers right, any per application se of them. must done. The Government’s argu token, I find By the same Justice Frank- contrary essentially ment to the two analyses and Justice Harlan’s furter’s first, fold: that Balzac “is still viable To posi- harmonize these persuasive. controlling law case,” present in the tions, [and] Black’s primary since Justice con- 24; second, Gov’t.Br. at given cases “be cern policy” interest,” “sound and the “public expansion,” I prop- think the further evidently grounded upon Samoan cultur methodology is to adhere to their er ba- practical al and considerations difficul tenets, tempered as by pragmatic sic trials, implementing ties jury of require present in American considerations Sa- contrary conclusion. at Id. 29-34. course, and, by the of nature of moa the trial. right jury to agree I that the Balzac analysis While viable, accept I am unable to the still the fully To relevant complete legal holding regarding notion that its appeal jury which within this framework introduce, good trial law. The arises, point, this the is still at case Government I Court very argues that “the in at the heart of Duncan was appel- which lies referring to the clearly Anglo-Saxon sys claim—Duncan v. constitutional lant’s that justice” tem we would Louisiana, of be in 391 U.S. “ that (1968). system error to conclude ‘our of All of the Insular L.Ed.2d justice’ synonymous ... the with right jury concern Cases justice.” in the scheme period at our I decided do were trial Underlying at the The 13. 24-25. Govern- instru- Govt.Br. §§ 12. U.S.C. argument rights the reproduced notion that of all at Am.Samoa ment’s are of cession ments “fundamental,” more are some are funda- that Code that the & dispute Court in moan code—“Crimes Criminal not Duncan Proce- issue in The first “Anglo- approximately the terms of dure.” addressed sec- “general set jurisprudence. I forth provisions” American” also tions concede majority activity and condemn various as that the in Duncan did crimi- carry the a few directly proposition Except nal. minor beyond not aberrations “States,” n.14, necessarily culture, incident g., e. I Code although note that the 15 Am.Samoa §§ dis- roots thought that did and these sections are plainly Anglo- sent felt com- precisely sections, to observe that American. The next few pelled effect. con- 185-86, cerning practice (Harlan, procedure 391 J., S.Ct. 1444 criminal Nevertheless, dissenting). particularly generally, enlightening. believe conclusively provides what Duncan resolved is Section “criminal pro- right High jury the “nature” cedure in Court and in the in shall trial as embodied district courts conform as nearly Constitution is Obviously practical to the fundamental. Federal decision Rules of Anglo-American Indeed, Procedure.” juris- was in terms Criminal Rule 3 of High but the prudence, proposition specifically provides threshold jury “[proceedings Dorr and Balzac that High Court will be fundamental was also applicable not in terms of conducted so far as . . . jurisprudence. Anglo-American in accordance with the U.S. Federal point is that nature of has Rules Civil and Criminal Procedure. been always determined in the first References to in- trial are stance with reference to our own body specifically inapplicable in American Sa- law. This was so Item 8. App. Additionally, Insular Cases moa.” rights concerning jury grand trial and an accused are jury in- of constitutionally and dictment, explains why statutorily protected. precisely Section six of the opined Harlan Bill Rights provides: Justice Duncan over- Samoan “No “jury turned idea that shall be person put trial is twice liberty.” jeopardy liberty; fundamental ordered of life or Id. Thus, extent, at least to that . compelled . . to be Dorr and a witness longer against Balzac are no valid. . himself . . . In all crimi- prosecutions, nal the accused shall have The Government has also cautioned speedy public trial, to a in error that we would be “to conclude . to be confronted with the wit- system justice’ that ‘our ... him, against nesses to have compulsory with synonymous the Samoan scheme of ., . . justice [and, process . . do so have the would assist- to] completely ignore the vastly differ- . ance of counsel. . . Every man is heritages ent ethnic and cultural presumed innocent until he is pro- (citation two lands.” Gov’t.Br. at 25 guilty by nounced law. . . . Exces- fact, omitted). In aside from the required, ab- sive bail shall not be nor exces- trial, sence of imposed Government has sive fines nor cruel or unusual proffered so much as significant one punishments inflicted.” Am.Samoa Const, system distinction between our of crimi- art. also See § Am.Sa- justice nal and American My Samoa’s. moa Code 3401. If this is not an An- ,own inquiry leads me to system believe that the glo-American justice, of then nei- analytical that, reason for this void is ther is our own. What the Government essentially, the distinctions do not exist. is the has overlooked inherent beauty of ability Illustrative of this title 15 of the system our to Sa- accommodate —its Henkin, than liberty” mental others. See also L. For- stract terms “ordered and “funda- eign Constitution, gain Affairs and the judicial 268-69 through n.75 gloss, mental” definition (1972) (the and cases cited therein author questionable does here, such a distinction would be analysis, merely poses cases, condone this but Duncan, where the relevant Insular and question). the specifically speak Granted that otherwise ab- in terms of “fundamental.” 1158 dictum, suggestion, court’s in the Bodle ethnic and “vastly different the

precisely jury pros in all criminal “trial that heritages” which Govern- cultural right is deemed a remedial ecutions to it. as inimical views ment among the is not fundamental which my inquiry to final turning Before applicable and therefore not to rights” considerations practical concerning territories, unincorporated 427 F.2d at trial, jury I must of implementation Balzac, n.1, citing cognizance took no 553 plethora upon the of cases comment either Reid or Duncan and whatsoever support has raised in of its Government certainly controlling cannot here. holding Balzac is still position Dunn, United States v. 148 also U.S. See Two of “recent decisions” law. good 459 F.2d 1122 App.D.C. supportive proposi of this us as cited to Lastly, regardless controlling the once before Reid and decided tion were D.un cases, they of some of these have weight event, are can, and, irrelevant. subject to elaborate and recently been Products, Dairy Inc. v. Pacific Duncan, analysis view of critical (9th 1956), Siciliano, F.2d 74 Cir. was 235 large per I to a extent find case; it concerned a a criminal not even See, Colon, g., e. Montalvo v. suasive. damages for breach action for civil (D.P.R.1974); F.Supp. and, agreement even as partnership Delgado, F.Supp. v. Torres such, jury trial issue was not exhaus July 1974), aff’d (D.P.R., filed on other v. analyzed. Figueroa People of tively (1st 1975). F.2d 1182 grounds, 510 Cir. (1st 1956), F.2d 615 Cir. Puerto most, it inapposite; merely at equally sum, I do not believe the In Govern- Balzac, holding of which at restated correct, argument nor do I find ment’s law. Rivera v. good was the time sup- the authorities offered persuasive Islands, Virgin 375 F.2d Government remaining I turn to the port it. now 1967), and (3rd Cir. Government Samoan cultural differ- issue—whether Rijos, F.Supp. v. Virgin Islands practical considerations neces- ences (D.V.I.1968), are also of no aid. While jury a conclusion sitate Reid, they after were were decided both applicable is not to American Sa- Moreover, their hold pre-Duncan.14 still regard, I think In this moa. grand ings concerned is sufficient and see no reason or record trial, indictment, which, unlike has remanding the case purpose “fundamental.” also not been held See court. district Scott, of the Canal Zone Government (5th 1974). Cir. The 502 F.2d territory of American Samoa con refers us to Govern also Government a cluster of sists of islands located in the Bodle, Islands v. 427 F.2d Virgin Pacific, 4,000 ment approximately South nauti 1970), (3d California; Cir. in which the Govern miles southwest of ge cal its Rijos the court says cited “with ment area is ographical square miles and Rijos was cited approval.” Granted population 27,000.15 1968 estimated was Bodle, only proposition but for the government tripartite, The national aspects of the Constitution do executive, that all consisting legislative apply proprio vigore unincorpo not ex judicial branches. The Chief Executive territories, certainly Governor, not for rated appointed by who is is the asserted proposition the broad Secretary of the Interior16 performs Compare 427 F.2d Government. “under the general supervi his duties Further, Br. at 28-29. n.1 with Gov’t. Secretary. There sion” of is also a 6, 1968, technically (1971); Ency- 15. Hammond World Atlas 87 Rijos, decided June clopedia (15th May 1974). Britannica 205-07 post-Duncan, 1968. How- ed. decided only days elapsed ever, time is since previously, undisputed 16. As mentioned it is Duncan, Rijos no mention of makes plenary authority that the has over Rijos that the court to assume think it safe territory. Fed.Reg. (July 1951). the realistically aware of Duncan. arising regulations under the of their Governor and a of re Secretary Lieutenant Affairs, and, spective villages” the appointed generally, former “have Samoan Secretary impose and the exclusive by by penalties the latter the village for violation of regulations.” other Any Governor. executive officials by Am.Samoa Code appointed §§ 602. are Governor who is through the required, Secretary of Sa The administration govern of local Affairs, request moan recommenda ment is distributed among district, positions tions such from various oth county village governing bodies. depending upon officials par er local Const, 10; V, Am.Samoa art. § Am.Sa filled, vacancy being g., e. ticular moa seq. Code et Notably, §§ none of appointment case of the of a district authorities local is directly instru governor, the recommendation shall be mental in the adjudicatory phases from the requested relevant district justice process. criminal Certainly they Const, IY, council. Am.Samoa art. §§ pivotal play a role in the functioning of 3,2, legislative branch, 11. The society, but position Samoan their is Fono, bicameral, of consisting a 20 clearly not akin to that of the courts. Representatives member House elect See, g., e. Am.Samoa Code §§ by suffrage ed universal and an 18 mem At this level of society Samoan the ma ber Senate “elected accordance with chieftal, tai, system or in Samoa becomes custom” the county Samoan councils relevant, here, most for it is close to the they represent. of the counties Id. art. (chief) that a people, matai is most influ II, legislature 4. The has the §§ “au ential. As leaders of the extended fami thority pass legislation respect with (aiga poto lies poto), that communally subjects application, of local except that: virtually land, own all Samoan the ma (a) legislation No such shall be inconsist authority táis have over which family ent with Constitution American [the] [of work members what family land and laws of the United States Samoa] where the nuclear families within the in American applicable Samoa . .”. family will times, extended live. At II, judicial Id. art. 1. The § receives, matai also when requested, High vested in Court and the district money “service” in terms of or food independent courts and legisla the family from members.18 This has branches, tive executive but not in traditionally Samoa, been fa’a the Sa dependent of the Interi- way. course, moan Of the matais also or, appoints High who Court the power through exercise formalized chan Chief Justice and such Associate Justices governors, nels as district county chiefs necessary.17 Ill, deems he Id. art. village mayors. 4 Am.Samoa Code 1, 2, 3. Judges, Associate §§ no less 3, 201, 401. Matai title §§ controversies five, appointed by than the Governor pursuant are now resolved to various upon recommendation of the Chief Jus statutory provisions, 1 Am.Samoa Code tice and must be confirmed the Sa 701-804, special judicial and a provi §§ moan Senate. Am.Samoa Code applies sion these proceedings. 5 Am. (Supp.1974). courts, The district consist 408(e). Code § Samoa ing village magistrates elected village councils years, terms two Examination a relatively recent re- “jurisdiction only exercise over matters port of the Future Political Sta- Secretary’s power appoint- 17. Century in such Legal tem in Twentieth America: As- See, virtually Metzer, g., pects System ments is absolute. Territory e. of the Matai in the Why Longer Judge, Samoa, No Am Comp.Law The Nation 4 Ga.J. Int’l & (1953). Stewart, See also American Law Equator, (1973); Below 59 A.B.A.J. 52 analysis position, 18. For a concise func- Comment, Judiciary Some Observations on the concerning system, and law the matai tion in American 18 U.C.L.A.L.Rev. 581 description which much above from drawn, Stewart, Sys- A see Lutali Chieftal judges truly independent. are nor Study lends further tus Commission19 Secretary may the Interior hire foregoing discussion. The color to the consulting very fire without alternatives and Report examined daily whose lives are affected Samoa, g., people political status of e. present his decision.20 with independence, union Western total Samoa, ultimately and statehood. It rec present practice appoint- 6. The ommended, alteration, with some reten ing top gives many officials rise to system. of its present of the Some tion abuses of the potential principle particularly are relevant observations separated, power should be checked that, First, it noted since Samoa’s here. only and balanced. Not do all the cession to the United States: department appoint- heads owe their pressures the inexorable of the modern Governor, to the who ments need not chipping away world [have been] Legislature consult the before exercis- depth scope tradition discretion, ing his but the Governor among people. While Samoan so- could, relationship of his with because cial ceremonies functions of tradi- Interior, Secretary of the cow continue, origin tional the real mean- opposition to a pro- much controversial ing is often-times absent and the cru- might posal, which arise if the Gover- present cial role of tradition in the powers were more nor’s circumscribed. system is political diminishing. report at 32-34. The Id. concluded with Today, are better Samoans educated designed recommendations im- several before, compul- than ever [education present system: prove the Gov- sory through grade 12 or years elected; popularly ernor be that both age, 18 Am. Code Samoa and a § 5] legislature pop- houses of the Samoan degree sophistication new is obvi- elected; that ularly popularly elected political ous. Samoan has given Governor be exclusive veto passive acceptance shifted from of an legislation dealing over all with local government appointed strong to a de- matters; the Samoan educational self-government sire for within the re-examined; system be that the United American framework. grant Congress dele- Samoan Report status; at 29-30. disadvantages Various gate official and that a land ti- system present to the were tle, registration, also dis- including program be cussed: these, instituted. Id. at 39-51. Of ap- parently only the last three have been time, civil, 2. At this “all judicial, implemented. limitary” power in American Sa- in the Secretary moa is vested of the I have studiously examined the Ameri- he, Interior. It is not the President or government culture, can Samoan Congress, “approved” who present why jury no reason trial and see should Samoa, Constitution of American Contrary there. applicable he

presumably present could alter the argument, I Government’s do not think form of Government decree. trial in serious criminal cases 5. Another weakness of the undermine traditional cultural present would aspects system was recently illustrated when or societal Samoa. There by jury, no indication that replaced by simply the Chief Justice was Secretary Interior, system matai and Samoan culture despite of the Indeed, incompatible. strong protests Speaker generally “supporting framework and Representatives view of House and the subsidiary procedures” presently President Senate. Under the throughout I think that present system neither the force Governor supra. 20. See note Report Status But see 5 Am.Samoa the Future Political from 19. statute, By Legislature Code Study to the Eleventh a Chief Commission Regular Justice or Associate High Session Justice of the Samoan Second American Samoa during good Court “shall hold office cited as “Re- Ex. 6 [hereafter Gov’t. behavior but be removed port”]. of the Interior for cause.”

HQl merely complement trial will jury legal analysis potential application. existing determined, already justice criminal process. through I have an analysis Louisiana, supra, Cf. Duncan v. which accommodates evolving Supreme n.14, doctrine, juries at 149 S.Ct. 1444. that As to jury a governmental serve to curb abuses of trial in serious guaran criminal cases as here, a like salutary effect will teed our is applicable be Constitution 155-56, territory Id. at served Samoa. our of American S.Ct. Samoa.22 Mr. King also not perceive 1444. I do was convicted insurmount of a serious criminal problems physical able without empanelling being a offense accorded this con 2, App. Item nor jury, prob right. see are the stitutional His conviction should affinity, Thus, lems of vis-a-vis the be allowed to extended stand. I would families, any greater in Samoa than judgment sim reverse the of the district court, problems ilar encountered and surmount and remand the case with instruc - knit closely judgment ed in areas of the plaintiff tions enter for the proper. Assuming appellant that acts and to grant appropriate relief. for crimes atonement committed are culture, in Samoan

prevalent and may significant effect,

have a fa’a guilt determination of jury’s

a or inno

cence, 6, see Gov’t. Ex. I fail to see against

how this could cut applicabil

ity jury all, trial to Samoa. After analysis,

the final it the populus of a ORGANIZED MIGRANTS IN COMMU- society to whom given a miscreant ACTION, INC., Appellant, NITY and, event, responsible; it is ap parent if acts atonement were Elizabeth Wilder et al. by the jury, not considered they would v. be considered the judge in his sen tencing decision. 15 Am.Samoa Code BRENNAN, Secretary, Peter Hence, I 5004. find none of the cul Labor, Department of al. et practical tural differences considera No. 74-2062. tions which the poses Government in op jury position trial sufficient to war Appeals, United States Court of inapplicability right.21 rant Quite District of Columbia Circuit. frankly, American Samoa in 1975 and 26, Argued Feb. 1975. Rico” in 1922 are simply “Porto not anal ogous. 9, Decided Oct.

IV. Conclusion presented variety case has

This questions, both terms its

difficult course, necessarily example, aspect necessarily 21. Of does not follow neither would implemented Beyond convicted without benefit defendants of a have to be that, in Samoa. wronged. jury express been See specific trial have DeStefano no as to the Woods, 631, required; type v. properly 392 U.S. 88 S.Ct. that is an (1968). to be resolved in L.Ed.2d issue the first instance be- tween the and the Samoan Govern- holding require every would 22. This ment. jury system engrafted aspect of the federal justice process. holding apply Samoan criminal I also stress that this onto the would only rights only prosecutions fundamental The criminal for standard “serious of- Supreme See, York, Court has held fenses.” Baldwin v. accorded. New 399 U.S. twelve-person nor unanimous that neither S.Ct. L.Ed.2d 437 Apodaca Oregon, fundamental. See can be no There prosecuted that Mr. L.Ed.2d 184 such an 406 U.S. offense. Id. at Florida, (1972); Williams v. S.Ct. 1886. Thus, L.Ed.2d 446

Case Details

Case Name: Jake King v. Honorable Rogers C. B. Morton, Secretary of the Interior of the United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Oct 9, 1975

Citation: 520 F.2d 1140

Docket Number: 73-1995

Court Abbreviation: D.C. Cir.