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May 30, 1986

Hon. Donald P. HODEL, Secretary of the Interior, et al., Defendants

The opinion of the court was delivered by: GASCH

 GASCH, Senior District Judge.

 This case involves the Mormon Church, title to land that has been in dispute since the turn of the century, and the Fa'a Samoa -- the Samoan way of thinking and doing. The land, known as "Malaeimi," is located in the territory of American Samoa. Most recently, plaintiff Corporation for the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints ("the Church") was deprived of its interest in Malaeimi by decision of the High Court of American Samoa. Plaintiff appealed that decision to defendant Secretary of the Interior, who by executive order is responsible for all civil, military and judicial authority in the territory. The Secretary declined to overrule the Samoan court, however, and the Church now appeals his decision here. Because the Court finds that plaintiff has failed to raise a valid constitutional or federal statutory claim, it will grant defendants' motions to dismiss.

 I. FACTS *fn1"

 American Samoan law recognizes three kinds of property: "communal" land, which is held by a chief, or "matai," as custodian for his clan; "freehold" lands, which are those specifically included in court grants prior to 1900; and "individually-held" land, which an individual may hold for his own benefit if he cleared and developed virgin bush. See American Samoa ("Am. Samoa") Code § 37.0201(b); Response of American Samoan Government to Memorandum to Counsel, p. 2, question 2. Over ninety percent of land in American Samoa is held communally. See Notice of Filing by American Samoan Government, May 2, 1986. The importance of communal landholding to the Fa'a Samoa is evidenced by the fact that, since their earliest contacts with the West, Samoans have insisted on protecting the communal land system from encroachment. *fn2" The constitution of American Samoa expressly commits the government there to a policy of preventing the transfer of land to non-indigenous persons. Rev. Const. of Am. Samoa, Art. I, § 3. By law, communally held lands cannot be alienated to persons of less than fifty percent Samoan blood. Am. Samoa Code § 37.0204(b). *fn3" A matai has the right to "pule", or control, over land held communally for his clan.

 The matai of the Puailoa family, Puailoa Vaiulu, held the land known as Malaeimi at his death in 1929. At that time, the Mormon Church had been leasing for some 23 years a 360-acre portion of Malaeimi for use as a mission. *fn4" In 1930, two individuals named Nouata and Pasene asked the High Court of American Samoa *fn5" to decide who should succeed Vaiulu as matai. While that case was pending, the Mormon missionaries asked Samoan authorities to determine to whom it should pay rent. Because that issue was intimately intertwined with the issue of the successor to matai, the High Court advanced the Nouata matter ahead of 25 other cases on the court's calendar. The Church was not a party to the case, however. Vaiulu's widow, Salataima, was not a party either, but was a chief witness concerning both the issues of matai and the rent payments. She testified that Vaiulu had obtained a right to the land by protecting it from takeover by a foreign corporation in a previous lawsuit, and had stated on his deathbed that he intended her to receive the rents.

 An oral opinion, delivered for the court by Judge Wood, named Nouata matai, and awarded the rents to the widow:

As to the land Malaeimi it is also the unanimous decision of the court that that part of Malaeimi that is leased to the Mormon Missionaries is the property of the widow of Puailoa and that she should have during her lifetime the rents. While she is living it is suggested that she shall make a written statement signed by two witnesses, who she wants this money to go to after her death if the lease is still running. . . .
As to the other lands of Puailoa the court decides they should be held by Puailoa [Nouata] as the matai of the Puailoa family for the benefit of the whole family.

 Nouata v. Pasene, L.T. No. 18-1930 (H.C. L.T. 1931), p. 20, Deft. Hodel's Exh. B (" Nouata I "). The court reached this conclusion even though there were no pleadings on the rent issue and no testimony pertaining to it, other than that of the widow.

 In 1953, after a change in Samoan law made it possible to alienate noncommunal lands to non-Samoans, the widow sold to the Church some 300 acres of the land that it had previously leased. The Church paid $30,000.00 and built, in addition to church facilities, a school and a welfare plantation. The school buildings were eventually transferred to the American Samoan Government for use as a community college.

 In 1978, matai Tavete M. Puailoa officially petitioned the High Court to set aside Nouata I. Nouata v. Pasene, L.T. No. 18-1930 (H.C. L.T., Feb. 20, 1979), Deft. Hodel's Exh. C (" Nouata II "). The petition was denied by the trial court on the theory that the family had slept on its rights for 47 years. Id. at 22. On appeal, the appellate division held the petition was timely, but denied it on the merits. Writing for the court and sitting by designation of the Secretary of the Interior, Judge Anthony Kennedy of the Ninth Circuit found the 1931 judgment valid. Nouata v. Pasene, Ap. No. 007-79 (H.C. A.D., July 11, 1980), p. 9, Deft. Hodel's Exh. C (" Nouata II "). He stated that Tavete, as successor in interest to a party to Nouata I, was bound by the 1931 holding, and that Nouata I had properly reached the issue of the rent payments because that subject was intimately related to the issue of the matai successorship. Id. at 14. Since it was understood by all parties to Nouata I that both issues would be resolved simultaneously, the 1931 decision was not void "to the extent that it bears upon the status of the land Malaeimi." Id. at 17. However, he added, "[The Court] intimates no views as to the interpretation of the 1931 decision or its bearing on the ultimate question of title, only that it is valid as to these parties." Id. at 20.

 Despite this adverse ruling, members of the Puailoa family entered onto the property and began farming it. To prevent this, the Church brought a trespass action in 1979. Reid v. Tavete, etc., L.T. Nos. 007-79 and 041-79 (H.C. L.T. April 19, 1982), Deft. Hodel's Exh. D (" Reid I "). As a defense, the Puailoa family members asserted the 1953 deed conveying the land to the Church was void because the land was communal property and could not be alienated by the widow individually. The trial court found for defendants and declared plaintiff's deed void, for two reasons. First, the Court found Malaeimi could not be freehold land since it nowhere appears on the Record of Court Grants that was made in 1900. By statutory definition, only lands in this record could be freehold. See Am. Samoa Code § 37.0201(b). Second, the Court reviewed numerous records of judicial decisions and trials early in this century concerning the extent of the Puailoa holdings, and found several references to Malaeimi as communal land of the family. The court interpreted the 1931 Nouata I decision as granting the widow a life estate in the rents, but not freehold title to the land. As it was communal land, the court concluded, she could not convey it to the Church. In the alternative, the court rejected the Church's adverse possession claim, stating that the Church had not met the statutorily required thirty-year occupancy requirement. *fn6" The Reid I court did not consider itself bound by Judge Kennedy's opinion in Nouata II, because that opinion expressly stated that it did not bear on the ultimate question of title to Malaeimi.

 The Reid appeals court also rejected the Church's alternative argument based on adverse possession because the Church could not establish that it had been in possession of the property for the statutorily-required period. In a footnote, the court added that in any event, the adverse possession statute as applied to communal lands would be limited by the racial restrictions on alienation stated in Section 37.0204. Id. See note 3, supra.

 The Church asked the High Court for a rehearing, which the court denied. Reid II, Order, Dec. 11, 1984, Deft. Hodel's Exh. F. The order can be summed up in the court's own words: "The trial court concluded, and we agreed, that Salataima had no title to pass." Id. In its motion for rehearing the Church apparently argued that the land, while perhaps not freehold, may have been "individually-owned" by the widow. The court found the property could not meet the Samoan common law definition of individually-owned land. Even if the property had been individually owned, the court noted in the alternative, it could not have been conveyed to the Church because of the racial restriction on alienation. The court again rejected the Church's adverse possession claim, adding, in addition to the grounds stated in the main decision, that the Church had failed to establish exclusive possession during the statutory period. Id.

 After being turned down the second time by the High Court, the Church appealed to Secretary of the Interior, who exercises all judicial powers in American Samoa. Executive Order No. 10264 (June 29, 1951), 3 C.F.R. 765 (1949-1953 Compilation). In a letter dated June 7, 1985, Secretary Donald Hodel declined to upset the Reid decisions, stating that to do so would undermine a policy fostering greater self-government and self-sufficiency in American Samoa. Given that the record did not present a clear case of abuse of judicial discretion, the Secretary would not intervene. Deft. Hodel's Exh. H.

 Plaintiff asks this Court to review defendant Hodel's decision on a variety of theories. Plaintiff contends the Secretary's decision resulted in the taking of its property without compensation or due process, in violation of the fifth amendment. It further contends that the application of the racially restrictive land alienation statute against it violates equal protection and deprives it of its civil rights under 42 U.S.C. §§ 1981 -- 1983. Plaintiff further challenges the structure of the judicial system in American Samoa, and finally, asks the Court to review the Secretary's decision under the Administrative Procedure Act.

 At oral arguments on February 20, 1986, the Court granted a motion to intervene as defendant by the American Samoa Government ("ASG"). In addition to its general interest in the issues raised by this suit, *fn8" the ASG has an interest in Malaeimi by virtue of the fact that following the Reid rulings, the Puailoa family conveyed to it the property on which the community college is situated. *fn9"

 Defendants move to dismiss the entire complaint under Federal Rule of Civil Procedure 12(b) on the grounds that this Court lacks jurisdiction and that plaintiff fails to state a claim upon which relief may be granted.


 Defendants attack this Court's jurisdiction, which plaintiff bases on 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1361 (mandamus). *fn10" The Court of Appeals for this circuit has clearly answered defendant Hodel's objections to jurisdiction:

Here, the sole defendant is the Secretary of the Interior, and the issue is whether he has administered the government of American Samoa in accordance with the requirements of the United States Constitution. Clearly, the Secretary is within the geographical jurisdiction of the United States District Court for the District of Columbia, and that court is competent to judge the Secretary's administration of the government of American Samoa by constitutional standards, and if necessary, to order the Secretary to take appropriate measures to correct any constitutional deficiencies.

 King v. Morton, 172 U.S. App. D.C. 126, 520 F.2d 1140, 1144 (D.C.Cir.1970). So long as plaintiff can make out a valid claim under the Constitution or a federal statute, ...

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