#### TOOMATA, SAVE, MAIAVA, FIU and LEOSO, Parties

No. 3-1902

High Court of American Samoa Civil Jurisdiction, Trial Division [“Matai” name: “Tuitele”]

Date unknown

E. M. GURU, *Judge*and MAUGA, *Associate Member*

DECISION

1. The questions before the Court are, the right of succession to the title of “TUITELE” and the determination of a successor out of the several claimants. The trial also calls for opinion and decision concerning various alleged Samoan customs and rights.

2. The title “TUITELE” is ancient, and the holder of it has been classed as one of the “Kings” of Tutuila. At the present time he is one of the two highest chiefs (Faiivae being the other) in the County of Lealataua, in the District of Falelima West, Tutuila.

*263. Tuitele-Toomata-Penitila, who was the last “TUITELE”, was District Governor for the District of Falelima West under the United States Government. He died on or about the 15th day of July, 1902, leaving a widow and several sons and a daughter.

4. A few days previous to his death, he created his son Salatielu, who is a “fitafita” (landsman, U.S. Navy) serving the United States Government in Tutuila, “TOOMATA”, a princely title of the Samoans which was held by the late Tuitele.

5. There is no dispute to the title “TOOMATA”, being handed over to Salatielu, but the claim of Salatielu-Toomata that, by virtue of his election to “Toomata”, he succeeds at death of his father to the higher title, “TUITELE”, is opposed by a strong division of the “TUITELE FAMILY”.

6. *Regulation*No. 5 of the United States Naval Station, Tutuila, provides that “the hereditary chiefs of the county may be removed from office by the Commandant either directly or upon the request of a majority of the chiefs of his county for misconduct, disobedience, or neglect of duty. And the Commandant shall, either directly or upon recommendation of the members of the family of the said chief, and the member of the family so appointed shall succeed to the name and title of the deposed or otherwise incapacitated chief...”.

7. At several meetings of the “TUITELE FAMILY” held in the month of November last, the heads of the several divisions of the “TUITELE FAMILY” disputed the rights of succession, and the meetings ended turbulently, engendering bitter and hostile feelings.

8. On November 11, 1902, District Governor Faiivae of the Falelima West wrote the Commandant advising him of the hostile feeling then existing at Leone amongst the

*27“TUITELE FAMILY”, and that there were four (4) claimants to the title.

9. The claimants were:—

> (1) Toomata, son of Tuitele, deceased.

> (2) Save, member of collateral branch.

> (3) Atofau, a representative head of a division of the “TUITELE FAMILY”.

> (4) Maiava, one of the leading talking-men of the “TUITELE FAMILY”.

10. The Secretary of Native Affairs then proceeded to Leone for the purpose of being present in the Town of Leone during another meeting to be held, and to prevent any overt acts being taken by one party against another.

11. It was ascertained that the three last named (paragraph 9) claimants had formed a coalition against the first, and it was announced that if the Commandant approved of any one of the three they would be agreeable, but that they would not agree to Toomata, whilst Toomata left the selection of a successor entirely with the Commandant, without any reserve.

12. By order of the Commandant, the 28th day of November, 1902, was appointed for the hearing of the parties, and all persons interested were then notified that no candidates would receive consideration if they were not nominated on or before that day, and all objections then had to be lodged.

13. On the 28th day of November the leading members of the “TUITELE FAMILY” met at Fagatogo, in Pago Pago, and a meeting was then held in the presence of the Commandant.

14. Finding that the family could not agree upon *one*to have the title, the Commandant informed them that if they could not agree before the evening of the 29th day of *28November, he would refer the question to the District Court of Tutuila, consisting of persons competent to try such issues.

15. On the 29th of November the combined three claimants informed the Commandant by letter that Toomata would not agree to their desire, and that they placed the question for settlement in the District Court, and, further, that each of the three had handed over his right to one Leoso, the Chief Tulafale or talking-man of the family.

16. The Commandant, in reply, stated that he regretted the want of unanimity in the family, but that he could not accept the nomination of Leoso, making, as it was thought then, a fifth party. The claimants were advised to await a settlement in the District Court; in the meantime, no one was allowed to use the title of “TUITELE”.

17. The Court was unable to immediately assemble to try the case.

18. On the 15th day of December, the District Governor wrote the Commandant that the four candidates had held a meeting and had agreed to proclaim Leoso as the “TUITELE”.

19. A protest was then entered by Toomata on the ground that he did not consent to the appointment of Leoso; neither was he present at the meeting.

20. The Commandant then advised the District Governor that he could not accept the appointment of Leoso, and that the claimants had to wait for a determination of the question by the Court.

21. In spite of this, Leoso was still styled “TUITELE”, and he received the “TUITELE CUP” of kava in confirmation of his succession to the title.

22. The “Toomata” family felt aggrieved at the act of Leoso, and the disregard of the instructions of the Commandant.

*2923. The proceedings commenced in the District Court No. 3 at Leone, on Friday, the 30th day of January, 1903, with Toomata as Plaintiff and Leoso, Maiava and Save as Defendants.

24. Although Leoso was put forward by Save, Maiava and Atofau, they, with Toomata, presented themselves as candidates, as originally intended.

25. Toomata pleaded that he, being the son of Tuitele, deceased, was the rightful heir, as he had the title of “Toomata”, which is a necessary preceding title towards obtaining the title “TUITELE”, and that neither of the other candidates had any right to the title.

26. The defendants answered that, whilst Toomata was son of Tuitele and “Tamalii” (prince), he had no voice in the nomination of a successor, but that each of the four —Save, Maiava, Atofau and Leoso — had rights in naming the successor of Tuitele.

27. Witnesses were called for each side, and exhaustive conflicting testimony was taken concerning the genealogies of the claimants and their respective rights in the appointment of a successor.

28. The Town of Leone was founded by Salavea, Leoso and Olo. At the time of the first settlement, there was another High Chief in the County of Lealataua, called “Faiivae”. The founders of Leone desired to appoint a High Chief to rule the settlement, and they then created the title of “TUITELE”. All authority was then vested in Tuitele. Leone was then embraced in the District of Lealataua, and the two high chiefs, Tuitele and Faiivae, governed that division of the Island of Tutuila.

29. It appeared from the facts adduced that the first Tuitele lost his title in a game of “lafoga” (quoits) with a chief called “Lilomaiava”, from Upolu; the prize being that the title of the loser should go to the winner.

*3030. Tuitele lost, and his title was taken, figuratively, to Upolu by the Chief Lilomaiava and his party.

31. For some years (or several generations), no one held the title of “TUITELE” in Tutuila.

32. At that time, Leoso, who was the “matua”, or head “tulafale” (talking-man) for the chief who was deprived of his title, controlled the Alataua District, Falelima West, of Tutuila.

33. Then, one Maiava came over from Falealili and was invited by Leoso to assist him in his administration.

34. The idea was conceived to endeavor by some strategy to regain the lost title.

35. Up to this point, all agree, but it is here that the testimony conflicts, and it is this confliction which has largely given cause for the present trouble.

36. Maiava claims that he advised his two daughters to proceed to the house of Lilomaiava and, by coaxing and caressing, induce him to return the title to Tutuila.

37. Toomata contends that the same two girls were daughters of the first Tuitele, who resorted to the same strategy to regain his lost title.

38. Through the uncertainties of tradition, it is difficult to divine the truth, but it is settled that the title was returned through the strategy of the two girls.

39. It is here that Maiava bases his claim to highest recognition in the family and his right to control the title, on the ground that his ancestors recovered the title, and the present heads of the division of the “TUITELE FAMILY” are descended from the scions of the first Maiava.

40. Toomata denied this, and called upon Maiava to show by what agreement, or by what connection with the Tuitele scion he claimed to send his alleged daughters to regain the title. Maiava failed to give a satisfactory *31reply, except that the former Leoso told his ancestor to do it.

41. From the evidence adduced, the relation of the several candidates to each other, and the nature of their rights, are as follows:—

> Toomata is “Tamalii” (prince or high chief), son of Tuitele-Toomata-Penitila, deceased. He is approached through Maiava and Fiu, who are his viziers when any business is to be done with neighboring chiefs, or in family matters. Toomata confers with Fiu and Maiava for advice. They declare the desire of their chief to others. Toomata has charge of and controls all the property. Fine mats received from any chief or family are presented to Toomata through Fiu and Maiava; likewise, if Toomata presents any property at any time to other chiefs, he makes the presentation through his agents and counsellors, Fiu and Maiava.

> Save is the head of a division of the family of Tuitele which is a collateral branch of the division of the late Tuitele. He is a chief in the family but performs no important office. He claims interest because his grandfather was a “TUITELE”.

> Atofau is head of a family which is part of the “Maiava family”, and it is through his connection with Maiava that he claims a right to the title. Maiava himself, admits that Atofau is one of his “Tauuso” (brothers) and is of the one family of Maiava; in fact Maiava, when asked to name the different divisions of the “Tuitele Family” avoided mentioning Atofau as a distinct division, but referred to him as connected with and under Maiava.

> Maiava, as stated before, acts as a vizier for Toomata, with Fiu. He claims his interest through the Leoso who desired him to help in looking after the County of Lealataua. He admits, however, that Leoso still retains *32the original privileges concerning the “Tuitele Family”, and that the will of Leoso is superior to the desire of Maiava. The evidence shows that a Leoso, some generations ago, vested certain authority in him, and the Maiava descendants have exercised the right, with the division of Fiu, of nominating the “Tuitele” in the case of death or removal from the position through any mal-practice. But this right has not been undisputed. Some of the chiefs who held the title have done so against the will of Maiava, or Maiava and Fiu. The weight of testimony is in favor of Maiava and Fiu, together having the right to nominate the “Tuitele”. But Maiava arrogates to himself the supreme control of the “Tuitele”, and all other divisions of the family, even the Toomata branch, for whom he is a medium for transacting business with other chiefs and families. He even goes so far as to say that the “Tuitele” must obey him in all matters, and that in case of Tuitele refusing to comply with his wishes, he would drive him from his position and appoint another to hold the title in his stead. This is a clear instance of the usurpation by a “tulafale” of the authority of the chief. It is this usurpation and self-assumed authority which has been, to a large extent, the cause of many of the tribal disputes and wars in Samoa. The chief is appointed to rule, not to serve. If the claim of Maiava were upheld, no chief could exercise any real authority, the foundation of any government would be shaken, and all reverence and respect for chiefs would be lost.

The Court is of the opinion that the “tulafales” who have important functions to perform in connection with chiefs, should be, in their actions, confined to their proper duties; the chiefs should be upheld in authority, and protected from any usurpation of their rule by the “tulafales”.

LEOSO: This claimant is the representative of one of the original founders of the Town of Leone. They were his *33forerunners who desired a “king” or high chief to rule and control the family, and they chose the first Tuitele, and vested all authority in him. This was the same Tuitele who lost his title in the skillful game of “lafoga”.

For several generations there was no titular head of the family, and Leoso exercised authority. But, as presented by the evidence, Leoso and the people longed for a “king” or high chief, but they were prohibited from having one until the title could be recovered from Lilomaiava, in Upolu. When the title was regained and Toomata-Talae, son of Momosea, once more acceded to the seat of his fore-parents and was proclaimed “Tuitele”, Leoso still retained his position of the “matua” or head of the family; or, in contrast to Fiu and Maiava, as viziers of the Toomata branch, he might be styled the Grand Vizier of the Noble Family of Tuitele. Although he vested some of his authority in Fiu and Maiava, he has reserved for himself the higher office, and performs his Samoan-official duties for Tuitele in connection with the people of Lealataua and the District of Falelima West. During war, the body of Tuitele is sacred; he is not required to take active part in any engagement. He accompanies the troops but is always surrounded with a strong guard and kept in a fortified place. It is Leoso’s duty to go out to battle and to lead the war party. Another duty Leoso performs in connection with the presentation of fine mats and the distribution of food is that he receives the fine mats and collects food and kind to give in return. He supervises the distribution of food on all great occasions. This is all done, however, in the name of Tuitele. “Leoso” is a “tulafale” title. It is the “Tulafale Sili”, or highest “tulafale”. The present Leoso comes from the line of high chiefs on his father’s side, but that connection should not entitle him to enter the “Tuitele Family” on the chief side. His connection with that family is on the “Tulafale” side.

*3442. The claimants for the title were, originally: Toomata, Save, Atofau and Maiava; subsequently, Leoso was put forward. The Commandant ordered that all nominations had to be presented to him on or before the 28th day of November, after which no other names would be considered. From the documentary evidence before the Court, it appears that Leoso’s name was mentioned on the 29th day of November as being the nominee of Save, Atofau and Maiava, but that the Commandant declined to recognize him. Leoso claims that he announced his name to the Commandant at the meeting in Fagatogo on the 28th, and that the Commandant refused then to accept it, on the ground that the appointment must be made from the hereditary chiefs, not hereditary “tulafales”.

43. Leoso claimed to have obtained the title on December 15th, 1902, from Fiu, Maiava, Atofau, Save and Toomata. He admits Toomata was not there, but he had written a letter to a Fiu Samu — not the Fiu mentioned above — renouncing claim to title and informing the family that they could appoint whom they liked, but the writing could not be produced, nor had Leoso seen it.

44. Toomata wrote a letter to Fiu stating that he did not desire the title, and if any other of his family were appointed — for instance, his brother, Penitila — he would be agreeable.

45. Fiu confirms this statement.

46. Fiu, in explanation of his action in giving his vote to Leoso on the 15th states that he did it in temporary anger towards Toomata; it was his duty to comply with the wishes of Toomata, and that he exceeded his instructions when he accepted Leoso. His whole support was now in favor of Toomata.

47. Leoso claims that Fiu is bound by his act and cannot retract, according to Samoan custom.

*3548. From the evidence of Leoso, it is apparent that there is no fixed rule in the Samoan custom. Leoso admitted in the commencement of the proceedings that Toomata was the true son of Tuitele (deceased), but, towards the end he, in his evidence, desired to describe the genealogy of Toomata in order to show he was not a descendant of Tuitele. The Court would not allow him to do so. He insisted that he had a right to contradict his former statement according, to Samoan custom, because Toomata had acted wrongly towards him since his admission three days ago.

49. All the time Leoso claims to have obtained the title; the question was lis pendens in the District Court, and whatever was done could not avail him anything until, according to agreement, the Court had given a decision.

50. An attempt was made by Leoso to defeat the orders of the Commandant and the intention of the Regulation concerning the appointment of a successor to a high chief. Finding that, as Leoso, a “tulafale”, his chances of being successful in the contest were small, either on the ground of being a “tulafale” or of being nominated after the time appointed, he assumed the place and name of Atofau, one of the other claimants, on the ground of being an alleged son of Atofau. The Atofau who was originally put forward appeared in Court but was ordered to take a back seat by Leoso. Before Leoso could drink the cup of “Tuitele”, in confirmation of his assumption of that title, he had to divest himself of the name “Leoso”, and this, it is alleged, he did. The Court endeavored to ascertain how he divested himself of the name, but no witness could show that he had done so, according to Samoan custom. Although it is stated that there is no “Leoso” at the present time, the Court looks with a great deal of suspicion on the act of Leoso, and is inclined to consider it a mere trick or subterfuge for the purpose of this trial.

*3651. Another practice of some of the Samoans which tends to disorder and confusion and, finally, to serious disputes, was exhibited in the testimony of one of the witnesses. He stated that he was a descendant of a former Maiava, and openly asserted, in spite of evidence to the contrary, that the present Maiava had no right, and prohibited him from taking further part in the trial. This practice of any member of a family interfering in the duties of the head of the family, and assuming that he has as good a right as the head, cannot be tolerated. The head of the family is responsible, and it should not be permitted for any member of a family, say of 50 or 60 persons, to be able to come up and interfere with him.

It so happens that many things are done in the name of the family of which the responsible head is ignorant. Anyone will assume authority and say he is the responsible representative of the family, and then cast his vote. The party wishing to gain a point is only too willing to take advantage of the act of a minor person and use it against the real head.

So also in this trial, the preponderance of testimony is in favor that Fiu and Maiava together have the right to nominate the “Tuitele”; yet we find five (5) persons claiming the right, and Fiu and Maiava accept placidly the position. Other members of the Maiava family have no right to step in and multiply votes against Fiu if he stands alone, as he is expected to do according to true Samoan custom. Atofau and Maiava are one, and Leoso may justifiably be added. In this case there are three votes and three nominators from the one branch, namely Maiava, whilst Fiu, who has equal rights, only exercises one vote.

52. In addition to any of the foregoing opinions expressed, the Court gives the following opinions:—

> (a) That the recognized heads of the Fiu family and of the Maiava family are the proper persons who are *37entitled to nominate the chief to hold the title of “Tuitele”.

> (b) That in case of any dispute between Fiu and Maiava, reference should be made to Leoso, whose decision should be accepted by Fiu and Maiava, but that Leoso should not name anyone outside of those named by Fiu and Maiava.

> (c) That Leoso, Fiu, and Maiava should continue to hold their positions after the Samoan custom, and should not aspire to the title of “Tuitele”.

> (d) That Leoso, Fiu and Maiava should be supported in their respective positions and functions.

> (e) That the title of “Tuitele” should be vested in the members of the Toomata division, they being “tamalii” or “usoalii” of the family.

> (f) That failing any suitable persons of the Toomata division, or any of that family being unable to perform the duties of the high chief, a “Tuitele” be appointed from a collateral branch of the “Toomata Family”.

> (g) The present “Toomata” is a young man, enlisted in the service of the United States Navy. He has also stated that he did not wish now the title of his father, “Tuitele”, and, as Atofau, Save, Maiava and Leoso and Toomata signified their desires to accept either Atofau, Save or Maiava, as may be decided by the Court to assume the title, it is the opinion of the Court for the considerations, opinions and facts hereinbefore stated, that for the present the title should be vested in Save during his lifetime, or during good behavior, and at his death, or earlier divesting of the title, the title should go to Toomata. And, in case of the earlier decease of the present Toomata, then Fiu and Maiava shall nominate one of the “Toomata Family” to take the title. Should any dispute arise between Fiu and *38Maiava the question is to be referred to Leoso for settlement.

> It must be understood that by “Fiu” is meant ONLY FIU, the recognized head of the family, and “MAIAVA”, the recognized head of his family, NOT the WHOLE FAMILIES or any MEMBER thereof WHO WISHES TO INTERFERE.

53. Costs Forty Dollars ($40.00), to be paid by each of the claimants in equal proportion.

AND BE IT SO ORDERED.