By Su’a Alexander Jennings
Swains Island is facing a constitutional crisis similar to the constitutional crisis of 1977, when then Assistant Secretary of the Department of the Interior, James M. Joseph, issued Secretary’s Order No. 3009 dated September 13, 1977, removing the Governor of American Samoa’s right to appoint the Attorney General and transferred that appointment power to the Secretary of the Interior.
The American Samoa Leaders stormed Washington D.C. demanding a check and balance to be put in place to prevent the Secretary of the Department of the Interior, from making decisions that impact on our Constitution and right to self-determination.
On January 1, 1983, 48 U.S.C. 1662a was passed stating “Amendments of, or modifications to, the constitution of American Samoa, as approved by the Secretary of the Interior pursuant to Executive Order 10264 as in effect January 1, 1983, may be made only by Act of Congress.”
Since 1983, no longer can the Secretary of the Interior, or a group of individuals make decisions that impact on our Constitution and right to self-determination, only an Act of Congress can do that.
Some forty years later on October 25, 2023, Congresswoman Uifaatali, without the approval of the people of American Samoa and in violation of the Revised Constitution of American Samoa, introduced HR 6062 to repeal 48 U.S.C. 1662a and to remove Congress from our Constitutional Amendment process, the one check and balance our forefathers had to put in place to prevent individual(s) from affecting our right to self-determination.
Much of the chatter around HR 6062 is on the issue of “self-determination.” The States and Members of the United Nations are required uphold the principle of self-determination of all peoples and nations. What is lost, or ignored in this often-repeated political buzzword, is the fact that HR 6062 is not the result of anything close to self-determination. A simple question that has gone unanswered, perhaps intentionally: is HR 6062 a product of self-determination? The members of the 2022 Constitutional Review Committee, the 2022 Constitutional Convention, nor the voters in the 2022 referendum ever expressed a desire to change the status quo and have known full-well the procedure for amending our constitution since 1983.
To make matters worse, in a recent announcement of the passage of HR 6062 under a unanimous consent by the U.S. House of Representatives, Uifaatali alleged for the first time that the right to vote in the Fono for Swains Island violates the Constitution of the United States. She further contends that HR 6062 protects American Samoa by granting the Department of the Interior the sole authority to approve amendments that violate the U.S. Constitution, by removing the requirements of a Congressional Review.
It simply does not follow that if Congress cannot violate the U.S. Constitution that DOI should be able to. This is a dangerous precedent that surely won’t be looked upon favorably by the U.S. Senate.
Swains Island was made a part of American Samoa nearly 100 years ago by an Act of Congress on March 4, 1925. Descendants of Swains Island include a class of U.S. Citizens that had to give up their U.S. Citizenship to become U.S. Nationals and American Samoan Natives. The people of American Samoa and Swains Island are defined by the Revised Constitution of American Samoa, and the applicable laws relating to land alienation as “a full-blooded Samoan person of Tutuila, Manu’a, Aunu’u, or Swains Island.”
Up to 1925, Swains Island had a different history from the rest of Samoa, but recognizing that Swains is an integral part of this Territory, the local government has afforded the same protections of land and culture to Swains Island as the rest of American Samoa.
Sadly, DOI has not recognized Swains as a co-equal part of American Samoa since it assumed administration over this territory in 1951. In fact, there is not one piece of federal legislation, presidential executive order, or Secretary of the Interior’s Order that specifically gives the Department of the Interior authority over Swains Island. The piecemeal approach to the executive orders and political status of American Samoa have resulted in Swains Island falling through the cracks.
Only Congress, who made Swains Island a part of American Samoa in 1925,should have the ability to determine whether the giving the Swains Island Delegate the right to vote in the Fono violates the Constitution of the United Sates. This can only happen through a congressional review of our constitution. A congressional review of our constitution will also determine whether other inconsistencies in the application of the Revised Constitution of American Samoa, besides the prohibition of the right to vote for the Swains Island Delegate in the Fono, discriminate against the American Samoa Natives of Swains Island.
On the other hand, giving DOI sole authority over amendments in our constitution will not insulate our constitution from future legal challenges and will do nothing more than kick the can down the road, placing the burden of any constitutional problems that may arise in the next 100 years on our children’s backs.
It’s been over 19 months since the Department of Interior received our Constitutional Amendments for Review from the Governor of American Samoa, and no action has been taken on our amendments. Swains Island is seeking full opposition to HR 6062 in the U.S. Senate for the protection of the Constitutional rights of American Samoan natives of Swains Island descent, including descendants of U.S. Citizens and U.S. Nationals. Swains Island also seeks to proceed with the process currently in place and in place at the time of the 2022 referendum, where Congress, not the Secretary of the Interior approves or disapproves the Constitutional Amendments of the 2022 Referendum through a Congressional Review.
We’re confronted by a true test in a Congressional Review of our constitution. If we can endure such a test, it will proclaim our steadfast allegiance to the United States and the principles espoused in the American Samoa Constitution by the forefathers of American Samoa.
Hiding from problems works both ways, like a reflection in a mirror. When we hide from potential problems by disregarding and defying the principles our Nation and Territory were founded on, those principles appear hidden from us. Swains Island is approaching its 100-year anniversary as part of American Samoa. If we fail to address what needs to be addressed now, it may be another 100 years before we get another opportunity. As King Solomon said: “For everything there is a season, and a time for every purpose under Heaven.”Ecclesiastes 3:1.
As a veteran of the U.S. Navy and one of the longest serving faipules in the Fono, I take seriously the oath I swore to uphold the Constitutions of the United States and American Samoa. Swains Island does not want to be a part of any violations of the U.S. Constitution. If a congressional review of the American Samoa Constitution finds the Swains Island amendment violates the U.S. Constitution, then that is a risk I am willing to take.
