
    FAGAOALI'I LALOULU TAGOILELAGI, Claimant, v. ULIMASAO SITALA SITALA, Counterclaimant. [In re the Matai Title “TAGOILELAGI” of the Village of Vatia]
    High Court of American Samoa Land and Titles Division
    MT No. 01-96
    May 23, 2001
    Before RICHMOND, Associate Justice, LOGOAI, Chief Associate Judge, ATIULAGI, Associate Judge, and TAUANU'U, Temporary Associate Judge.
    Counsel: For Claimant, Aitofele T. Sunia
    For Counterclaimant, Afoa L. Su'eseu'e Lutu
   OPINION AND ORDER

On September 21, 1998, the Court entered the original Opinion and Order in this action awarding the matai title “Tagoilelagi” to Counterclaimant Tilimasao Sitala Sitala, Jr. (“Ulimasao”). Claimant Fagaoali'i appealed the Trial Court’s decision, and the Appellate Division remanded the case to this Court to determine the customary clan(s) of the family, as well as whom is supported by the clan(s) as the next holder of the title. Fagaoaii'i v. Ulmasao, 3 A.S.R.3d 66, 70 (App. Div. 1999). These facts are essential to a positive finding on the second of the four selection criteria mandated by statute, the wish of the majority or plurality of the family’s customary clans. A.S.C.A. § 1.0409(c)(2).

The remand hearing was held on December 14, 2000. Fagaoali'i, Ulimasao, and their respective counsel were present. Testimony was taken, and the parties agreed to submit written arguments. The written arguments were filed on December 21, 2000, in accordance with the agreement.

Discussion

1. The Family’s Customary Clam

Fagaoali'i identifies a single customary clan of the Tagoilelagi family, Uitualagi. Fagaoali'i follows the tradition of clans based on the names of the progeny of the original titleholder, who he believes is Tagomailelagi Tagaloalagi. Tagomailelagi Tagaloalagi had two children, a son Uitualagi and a daughter Silaulelei, who did not have children. Thus, Fagaoali'i believes that Uitualagi is the sole family clan today.

Ulimasao counters with five customary clans of the family, Falemalama, Suiufa'iga, Sa'a, Sina, and Tuiasosopo. Ulimasao believes that Tagomailelagi Tagaloalagi’s son, Tagomailelagi Uitualagi, was the first hue sa 'o of the family in Vatia. Tagomailelagi Uitualagi had four sons, Falemalama, Suiufa'iga, Sa'a, and Tuiasosopo, and one daughter, Sina. Tuiasosopo’s descendents, if any, faded from family history a long time ago. Thus, Ulimasao holds to the view that the other three sons and the daughter are the source of names of the customary family clans that are recognized and participate in current family fa'alavelave (“family events”).

In addition to the two remaining candidates, chiefs Te'o Tavai, who descends from Sina, and Vaifetuli Gaoteote, who descends from Sa'a, testified at the remand hearing. The two chiefs corroborate Ulimasao’s position that four distinct clans are presently recognized and actively function in the Tagoilelagi family’s fa 'alavelave. At these fa'alavelave, descendents of the three brothers, Falemalama, Sulufa'iga and Sa'a, and one sister, Sina, separately present si'i (“customary gifts”). Chief Te'o also points out that Sina’s descendants are distinguished as the family tama-sa (“sacred clan”).

The concept of the “clans” of a Samoan family is not defined in the statutes governing matai titles. A.S.C.A. § 1.0401-.0414. Rather, guidance is given only by the general phrase “clans of the family as customary in that family” for purposes of deciding title succession controversies. A.S.C.A. § 1.0404(c)(2). As in this case, opposing claimants frequently disagree about the identity of the family’s clans when urging support within the family for their respective candidacies, often making judicial resolution of the clan wish issue perplexing. In re Matai Title “Tauaifaiva ”, 5 A.S.R. 2d 13, 15 (Land & Titles Div. 1987). In any case, the statutory reference to the “customary” clans provides clear direction that clan identity must be determined by the particular family’s current traditions. Id; In re Matai Title “Atiumaletavai”, 22 A.S.R.2d 94, 98 (Land & Titles Div. 1992).

Samoan customs are fluid, not static. In re Matai Title “Atiumaletavai”, 22 A.S.R.2d 94, 97-98 (Land & Titles Div. 1992); In re Matai Title "Tauaifaiva”, 5 A.S.R.2d 13, 14 (Land & Titles Div. 1987). They vary from family to family, and evolve from time to time within each family. We are satisfied by a preponderance of the evidence that Tagamailelagi Tagaloalagi was first holder of the “Tagoilelagi” title. However, we are also convinced by a preponderance of the evidence that the Tagoilelagi family customarily developed, and for purposes of the present successor selection process still has, four clans, namely the Falemalama, Sulufa'iga, Sa'a, and Sina clans, that actively and separately participate in the family’s fa 'alavelave.

2. Wish of the Majority or Plurality of the Family’s Customary Clans

Based on the evidence presented at the remand hearing, our findings in the original opinion and order of September 21, 1998, concerning family meetings to select the successor to the “Tagoilelagi” title were essentially correct. Quoting that Opinion and Order at 2 A.S.R.3d 230, 234-235, we repeat those findings (deleting the reference to a single clan based on our present finding of four clans), as follows:

The family... clans first met in February 1994. Ulimasao and another tulafale (or “talking chief’) of the family were nominated. The discussions were peaceful and harmonious in accordance with Samoan customs. Although Ulimasao appeared to have more support, the selection was postponed until a later time. The second meeting was held in May 1994. Again, the same persons were nominated. After discussions, Ulimasao was still the apparent favorite for the title, but the family . . . clans decided that yet another meeting would be held in an effort to achieve a trae consensus.
Fagaoali'i nominated Ulimasao’s competitor and was not himself nominated during the first two meetings. However, on July 20, 1994, he filed his claim for the title “Tagoilelagi” with the Territorial Registrar. His action prompted the five original counterclaimants to oppose Fagaoali'i’s claim and seek the title. When the third meeting of family . . . clans was held, considerable displeasure was expressed over Fagaoali'i’s offer to register the title, and Ulimasao continued to have the most support to be the next titleholder. However, Fagaoali'i and his supporters would not join a consensus for Ulimasao. Thus, the family . . . clans met a fourth time. Ulimasao still retained his previous support at the fourth meeting. However, to maintain peace and harmony, the family . . . clans decided that Fagaoali'i and Ulimasao would jointly hold the title. Both Fagaoali'i and Ulimasao were given the traditional kava cup ceremony that day, but with the understanding that Fagaoali'i would withdraw his offer to register the title. However, the Village Council of Vatia never met to record the family’s decision, and Fagaoali'i did not withdraw his registration offer.

Clearly, the family met meaningfully on several occasions to discuss and select the successor to hold the “Tagoilelagi” title. Although Ulimasao enjoyed the most support for selection, the family failed to reach a trae consensus choice. Though not nominated until the fourth meeting, and then as a compromise gesture, Fagaoali'i probably has the support of his clan, the Sulufa'iga clan, at least at this time. Ulimasao has the support of his clan, the Falemalama clan. At the remand hearing, chiefs Te'o, implicitly by testifying, and Vaifetuli, expressly, confirmed the support of their clans, the Sina and Sa'a clans respectively, for Ulimasao.

Accordingly, we find that Ulimasao has the majority support of three of the four customary clans that are presently active in the affairs of the Tagoilelagi family. Even if we discount the Sina clan as indecisive on the issue, Ulimasao still has the plurality support of two clans of the four clans. Either way, Ulimasao prevails on the clan wish criterion.

Conclusions

Both candidates are blood members of the Tagoilelagi family and are qualified on this basis to hold the “Tagoilelagi” title. Fagaoali'i does prevail, however, as previously found, on the statutory best hereditary criterion under the mies judicially formulated to evaluate this issue. We also previously found, and still consider, both candidates equally qualified on the third priority criterion of forcefulness, character, personality, and knowledge of Samoan customs. Ulimasao prevails, however, on the second priority clan - wish criterion and, again as previously and still found, fourth priority criterion of value to family, village, and country.

In our evaluation, Ulimasao notably outranks Fagaoali'i as the choice of the majority or plurality of the customary clans of the family and in leadership potential, the second and fourth priority criteria, and these ratings surpass Fagaoali'i’s nominally stronger hereditary right. We therefore reaffirm our decision of September 28, 1998, to award the “Tagoilelagi” title to Ulimasao.

Order

The title “Tagoilelagi” is awarded to Ulimasao Sitala Sitala, Jr. The Territorial Registrar shall register the title in Ulimasao’s name, provided that he has resigned from and is not registered holding any other matai title.

It is so ordered.

JUDGE ATIULAGI,

Dissenting,

My view was before and still is that the title “Tagoilelagi” should be awarded to Fagaoali'i.

Fagaoali'i has a better hereditary right to the title than does Ulimasao. I am persuaded that the Tagoilelagi family follows the tradition of identifying clans by the names of the original titleholder’s offspring. The first titleholder, Tagomailelagi Tagaloalagi, had one child who had descendents, his son Uitualagi. Thus, I am not convinced that the Tagoilelagi family has more than the one clan, identified by Fagaoali'i as the Uitualagi clan. This single clan has not reached a consensus to support Ulimasao, and I would therefore find that neither candidate prevails on this issue.

Again, as I indicated before, I believe that Fagaoali'i is a more forceful person and stronger leader. Except while receiving his higher education, Fagaoali'i has lived in American Samoa his entire life. He has held a matai title in the Tagoilelagi family for a slightly longer period than has Ulimasao. I would therefore find that Fagaoali'i prevails on the third and fourth criteria.

Because he prevails on the first, third, and fourth criteria in my view, I would award the “Tagoilelagi” title to Fagaoali'i.  