American Samoa: Issues Associated with Some Federal Court Options
Published: 2008-09-18T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: American Samoa is the only populated U.S. insular area that does not have a federal court. Congress has granted the local High Court federal jurisdiction for certain federal matters, such as specific areas of maritime law. GAO was asked to conduct a study of American Samoa's system for addressing matters of federal law. This testimony discusses: (1) the current system for adjudicating matters of federal law in American Samoa and how it compares to those in the Commonwealth of the Northern Mariana Islands (CNMI), Guam, and the U.S. Virgin Islands (USVI); (2) the reasons offered for or against changing the current system for adjudicating matters of federal law in American Samoa; (3) potential scenarios and issues associated with establishing a federal court in American Samoa or expanding the federal jurisdiction of the local court; and (4) the potential cost elements and funding sources associated with implementing those different scenarios. This testimony is based on GAO work performed from April 2007 to June 2008.
section_title: What GAO Found
paragraphs: Because American Samoa does not have a federal court like the CNMI, Guam, or USVI, matters of federal law arising in American Samoa have generally been adjudicated in U.S. district courts in Hawaii or the District of Columbia. Reasons offered for changing the existing system focus primarily on the difficulties of adjudicating matters of federal law arising in American Samoa, principally based on American Samoa's remote location, and the desire to provide American Samoans more direct access to justice. Reasons offered against any changes focus primarily on concerns about the effects of an increased federal presence on Samoan culture and traditions and concerns about juries' impartiality given close family ties. During the mid-1990s, several proposals were studied and many of the issues discussed then, such as the protection of local culture, were also raised during the GAO study. Based on previous studies and information gathered for its June 2008 report, GAO identified three potential scenarios, if changes were to be made: (1) establish a federal court in American Samoa under Article IV of the U.S. Constitution, (2) establish a district court in American Samoa as a division of the District of Hawaii, or (3) expand the federal jurisdiction of the High Court of American Samoa. Each scenario would present unique issues to be addressed, such as what jurisdiction to grant the court. The potential cost elements for establishing a federal court in American Samoa include agency rental costs, personnel costs, and operational costs, most of which would be funded by congressional appropriations. Exact details of the costs to be incurred would have to be determined when, and if, any of the scenarios were adopted. The controversy surrounding whether and how to create a venue for adjudicating matters of federal law in American Samoa is not principally focused on an analysis of cost effectiveness, but other policy considerations, such as equity, justice, and cultural preservation.

section_title: Letter
paragraphs: I am pleased to be here today to discuss Federal Court Options for  American Samoa. American Samoa is unique among U.S. insular areas in  that it does not have a federal court. A U.S. territory since the early 1900s,  American Samoa has internal self-government under a locally adopted  Constitution, and the High Court of American Samoa is not part of the U.S.  federal judicial structure. American Samoa’s local judiciary was initially  created and administered by the U.S. Navy, but since 1951 has operated  under the authority of the Secretary of the Interior, who appoints the High  Court Chief Justice and Associate Justice.
The issue of establishing a federal court in American Samoa is not new. In  the mid-1990s, legislative proposals were developed that would have  included the establishment of a federal court in American Samoa.  However, these initiatives were not enacted by Congress and were  controversial among American Samoans. Then, again, in February 2006,  the Delegate from American Samoa introduced legislation in the U.S.  Congress to establish a federal court in American Samoa and later that  month, the American Samoa legislature held a public hearing to solicit  public comments. No congressional actions were taken on the bill and the  Delegate from American Samoa withdrew the legislation after he and  others requested a GAO report, which was issued on June 27, 2008.
My statement is based on our June 2008 report, which examined the  unique judicial structure of American Samoa and identified the issues  associated with establishing a federal court in American Samoa.  Specifically, we discussed (1) the current system and structure for  adjudicating matters of federal law arising in American Samoa and how it  compares to those in the Commonwealth of the Northern Mariana Islands  (CNMI), Guam, and the U.S. Virgin Islands (USVI); (2) the reasons that  have been offered for or against changing the current system and structure  for adjudicating matters of federal law in American Samoa; (3) different  scenarios for establishing a federal court in American Samoa or expanding  the federal jurisdiction of the High Court of American Samoa if a change to  the current system were made, and the identification of issues associated  with each scenario; and, (4) the potential cost elements and funding  sources associated with implementing the different scenarios for  establishing a federal court in American Samoa.
We conducted our prior performance audit from April 2007 to June 2008 in  accordance with generally accepted government auditing standards. Those  standards require that we plan and perform the audit to obtain sufficient,  appropriate evidence to provide a reasonable basis for our findings and  conclusions based on our audit objectives. We believe that the evidence  obtained provides a reasonable basis for our findings and conclusions  based on our audit objectives.
subsections: section_title: Background
paragraphs: American Samoa, the only U.S. insular area in the southern hemisphere, is  located about 2,600 miles southwest of Hawaii. American Samoa consists  of five volcanic islands and two coral atolls, covering a land area of 76  square miles, slightly larger than Washington, D.C. According to American  Samoa Department of Commerce data, in 2005, the population of  American Samoa was about 65,500. Unlike residents born in CNMI, Guam,  and USVI, residents born in American Samoa are nationals of the United  States, but many become naturalized U.S. citizens. Like residents of the  other insular areas, residents of American Samoa have many of the rights  of citizens of the 50 states, but cannot vote in U.S. national elections and  do not have voting representation in the final approval of legislation by the  full Congress. According to Census Bureau data for 2000, the median  household income in American Samoa was $18,200, less than half of the  U.S. median household income of almost $41,000.
American Samoa does not have an organic act that formally establishes its  relationship with the United States. Two deeds of cession were initially  completed between Samoan chiefs, or matai, and the United States in  1900 and 1904 and ratified by the federal government in 1929. In these  deeds, the United States pledged to promote peace and welfare, to  establish a good and sound government, and to preserve the rights and  property of the people. The U.S. Navy was initially responsible for federal  governance of the territory. Then, in 1951, federal governance was  transferred to the Secretary of the Interior, which continues today. The  Secretary exercises broad powers with regard to American Samoa,  including “all civil, judicial, and military powers” of government in  American Samoa. American Samoa has had its own constitution since  1960, and since 1983, the local American Samoa constitution may only be  amended by an act of Congress.
The American Samoa Constitution provides for three separate branches of  government—the executive, the legislative, and the judicial. Since 1977, a  popularly elected Governor heads the American Samoa executive branch  for 4-year terms. Nearly 40 American Samoa departments, offices, and  other entities within the executive branch of the American Samoa  government provide public safety, public works, education, health,  commerce, and other services. The Governor has responsibility for  appointing the Attorney General, Director of Public Safety, and other  executive branch agency leaders. The legislature, or Fono, is comprised of  18 senators and 20 representatives. Each of the senators is elected in  accordance with Samoan custom by the city councils of the counties that  the senator represents. Each of the representatives is popularly elected  from the representative districts. American Samoa exercises authority  over its immigration system through its own locally adopted laws. In fiscal  year 2007, a total of almost $105 million in federal funds were provided  from a variety of federal agencies, including the Departments of the  Interior, Education, Agriculture, Transportation, and Health and Human  Services. Specifically, DOI provided funds that same year in the amount of  $22.9 million for American Samoa government operations, including the  High Court of American Samoa. In addition to these federal funds, a  portion of the funding for American Samoa government operations comes  from local revenues.
American Samoa Judiciary  The American Samoa judiciary, as provided in the American Samoa  Constitution and American Samoa Code, consists of a High Court and a  local district court under the administration and supervision of the Chief  Justice. The High Court consists of four divisions—the trial division; the  family, drug, and alcohol division; the land and titles division; and the  appellate division. The trial division, which consists of the Chief Justice,  the Associate Justice, and associate judges, is a court of general  jurisdiction, empowered to hear, among other things, felony cases and  civil cases in which the amount in controversy exceeds $5,000. The Chief  Justice and the Associate Justice are appointed by the U.S. Secretary of  the Interior and are required to be trained in the law. There are six  associate judges, who are appointed by the Governor and are not required  to have formal legal training. The associate judges are matai, or chiefs,  and they preside over cases in the High Court, playing a more significant  role in deciding issues of matai titles and land. There is one local district  court judge, who is appointed by the Governor and must also have formal  legal training, who hears matters, such as misdemeanor criminal offenses  and civil cases in which the matter in controversy does not exceed  $5,000. The Chief and Associate Justices, and the local district and  associate judges hold office for life with good behavior. The American  Samoa judiciary has a public defender, probation officers, translators, and  marshals. Since the 1970s the Secretary of the Interior has appointed  federal judges, usually from the Ninth Circuit, to serve temporarily as  Acting Associate Justices in the appellate division of the High Court of  American Samoa.
subsections: section_title: American Samoan Customs and Traditions
paragraphs: American Samoan customs and traditions have an influence over the local  legal system. The distinctive Samoan way of life, or fa’a Samoa, is deeply  imbedded in traditional American Samoa history and culture. Fa’a Samoa  is organized around the concept of extended family groups—people  related by blood, marriage, or adoption—or aiga. Family members  acknowledge allegiance to the island leader hierarchy comprised of family  leaders, or matai (chiefs). Matai are responsible for the welfare of their  respective aiga and play a central role in protecting and allocating family  lands. About 90 percent of land in American Samoa is communally owned  and controlled by matai, and there are limits in American Samoa law  regarding the transfer of property. The concept of fa’a Samoa extends to  the governance structures in American Samoa and, thus, most high- ranking government officials, including judges, are matai. Further,  Samoan law allows for a custom of ifoga, or ceremonial apology, whereby  if a member of one family commits an offense against a member of  another family, the family of the offender proceeds to the headquarters of  the family of the offended person and asks for forgiveness. After  appropriate confession of guilt and ceremonial contrition by the offending  family, the family offended against can forgive the offense. If the offender  is convicted in court, the court may reduce the sentence of the offender if  it finds that an ifoga was performed.
section_title: Past Proposals to Establish a Federal Court in American Samoa
paragraphs: The issue of establishing a federal court in American Samoa is not new.  This issue has arisen within the larger question of defining the political  status of American Samoa and its relationship with the United States. For  example, in the 1930s, Congress considered legislation that would provide  an avenue of appeal from the High Court of American Samoa to the U.S.  District Court of Hawaii, during its deliberation of an organic act for  American Samoa. However, this initiative was not enacted by Congress.  Further, since 1969, there have been three American Samoa commissions  convened to study the future political status of American Samoa. These  commissions have studied, among other things, the necessity of an organic  act. The most recent commission’s report, published in January 2007, did  not recommend any changes in American Samoa’s political status as an  unorganized and unincorporated territory of the United States, with the  intent that American Samoa could continue to be a part of the United  States and also have the freedom to preserve Samoan culture. In addition,  in the mid-1990s, the Department of Justice (DOJ) proposed legislative  options for changing the judicial structure of American Samoa, including  establishing a federal court within the territory. These proposals were  developed in response to growing concerns involving white-collar crime in  American Samoa, which were detailed in a December 1994 DOJ crime  assessment report. However, while the House Committee on Resources  held hearings on the DOJ report in August 1995, and judicial committees  studied various legislative options, Congress did not take any actions on  the proposals. Then, in February 2006, the Delegate from American Samoa  introduced legislation in the U.S. Congress to establish a federal court in  American Samoa and later that month, the American Samoa Fono held a  joint legislative public hearing to solicit public comments on the bill. No  congressional actions were taken on the bill and the Delegate from  American Samoa withdrew the legislation after he and others requested  the June 2008 GAO report.
section_title: Differences between Article IV Courts in Insular Areas and Article III Courts
paragraphs: The federal courts in the insular areas of CNMI, Guam, and USVI were  established under Article IV of the Constitution, whereas U.S. district  courts elsewhere in the United States were established under Article III of  the Constitution. Article IV courts are similar to Article III courts, but  differ in terms of specific jurisdiction and tenure of the judges. Article IV  courts generally exercise the same jurisdiction as Article III courts and  may also exercise jurisdiction over local matters. Article IV judges are  appointed by the President, with the advice and consent of the Senate,  serve terms of 10 years, and can be removed by the President for cause.  Article III judges are appointed by the President, with the advice and  consent of the Senate, and serve with Article III protections of life tenure  for good behavior and immunity from reductions in salary. Article IV  judges hear both federal and bankruptcy cases, whereas Article III courts  generally have a separate unit to hear bankruptcy cases. An Article III  judge can be designated by the Chief Judge of the Circuit Court of Appeals  or the Chief Justice of the United States to sit on an Article IV court.  However, an Article IV judge can be designated to sit only as a magistrate  judge on an Article III court.
section_title: The Federal Courts in CNMI, Guam, and USVI
paragraphs: The federal courts in CNMI, Guam, and USVI were established at different  times, but developed in similar ways. The District Court for the Northern  Mariana Islands was established in 1977 as specified in the 1975  agreement, or covenant, between the Northern Mariana Islands and the  United States. The District Court of Guam was established when the  federal government passed an Organic Act for Guam in 1950. The District  Court of the Virgin Islands, as it currently exists, was established by an  Organic Act in 1936. Each of these federal courts initially had jurisdiction  over federal, as well as local, issues. Over time, however, the federal  courts were divested of jurisdiction over local issues, with the exception  of the District Court of the Virgin Islands, which maintains jurisdiction  over cases involving local offenses that have the same underlying facts as  federal offenses. Similarly, each of the federal courts had appellate  jurisdiction over the local trial courts until the local government  established a local appellate court. CNMI, Guam, and USVI have all  established local Supreme Courts, so that the federal courts no longer  have appellate jurisdiction over local cases. As such, the jurisdiction of  each of the three federal courts currently resembles that of district courts  of the United States, which include federal question jurisdiction, diversity  jurisdiction, and the jurisdiction of a bankruptcy court. Decisions of the  District Court for the Northern Mariana Islands and the District Court of  Guam may be appealed to the U.S. Court of Appeals for the Ninth Circuit,  and decisions of the District Court of the Virgin Islands may be appealed  to the U.S. Court of Appeals for the Third Circuit. An Article IV judge—two  Article IV judges in the case of the Virgin Islands—sits on each of the  federal courts and is appointed by the President with the advice and  consent of the Senate, for a term of 10 years, but may be removed by the  President for cause.
section_title: Unlike Other Insular Areas, Matters of Federal Law in American Samoa Are Adjudicated in U.S. District Courts in Hawaii or the District of Columbia
paragraphs: Unlike other insular areas, such as CNMI, Guam, and USVI, American  Samoa does not have a federal court. As a result, federal law enforcement  officials have pursued violations of federal criminal law arising in  American Samoa in the U.S. district courts in Hawaii or the District of  Columbia. In the absence of a federal court in American Samoa, federal  law has provided federal jurisdiction to the High Court of American Samoa  in areas such as food safety and shipping issues, which is quite narrow  compared to the comprehensive federal jurisdiction granted to federal  courts in other insular areas.
subsections: section_title: American Samoa’s Local Judicial Structure Differs from Local Judicial Structures in CNMI, Guam, and USVI
paragraphs: With regard to its local judicial structure, American Samoa is different  from other U.S. insular areas. The judicial system in American Samoa  consists only of local courts that handle limited federal matters, whereas  the judicial system in CNMI, Guam, and USVI are composed of local courts  and federal courts that operate independently from each other. Also,  whereas the justices of the High Court in American Samoa are appointed  by the Secretary of the Interior, the judges of the local courts in CNMI,  Guam, and USVI are appointed by the Governors of each insular area.  Further, although decisions of the appellate division of the High Court of  American Samoa have been appealed to the Secretary of the Interior,  federal law provides that, 15 years after the establishment of a local  appellate court, decisions of the local appellate courts in CNMI, Guam,  and USVI may be appealed to the U.S. Supreme Court. As stated earlier,  because there is no federal court in American Samoa, matters of federal  law arising in American Samoa have generally been adjudicated in either  the District of Hawaii (Honolulu, Hawaii) or the District of Columbia  (Washington, D.C.).
section_title: Federal Criminal Cases Arising in American Samoa Are Generally Heard in Hawaii and the District of Columbia
paragraphs: With regard to criminal matters, although federal criminal law extends to  American Samoa, questions surrounding the proper jurisdiction and venue  of cases have posed complex legal issues when violations of federal law  occurred solely in American Samoa. However, since a 2001 precedent- setting case involving human trafficking, DOJ prosecutors told us that  some of the legal issues regarding jurisdiction and venue that had been  unsettled in the past have been resolved. For example, federal law  provides that the proper venue for a criminal case involving a federal  crime committed outside of a judicial district is: (1) the district in which  the defendant is arrested or first brought; or (2) if the defendant is not yet  arrested or first brought to a district, in the judicial district of the  defendant’s last known residence; or (3) if no such residence is known, in  the U.S. District Court for the District of Columbia.
Prior to this 2001 case, most cases arising in American Samoa were  brought in the U.S. District Court for the District of Columbia. In this 2001  case, prosecutors used the “first brought” statute to establish venue in the  District of Hawaii, since the defendant was arrested and “first brought” to  Hawaii and then indicted in the District of Hawaii. Based on the facts and  arguments presented, the Ninth Circuit upheld this application of the “first  brought” statute. Following this case, most defendants who have been  charged with committing federal offenses in American Samoa have been  charged in one of two venues—the U.S. district courts in Hawaii or the  District of Columbia, because there is no federal court in American  Samoa. In 2006 and 2007, DOJ attorneys prosecuted defendants in the  U.S. district courts in both Hawaii and the District of Columbia for civil  rights violations and public corruption cases arising in American Samoa.  DOJ prosecutors told us that their approach is adjusted depending on the  facts of each case, legal challenges presented, and prosecutorial resources  available.
section_title: Proper Federal Venue May Not Exist for the Adjudication of Certain Federal Civil and Bankruptcy Matters
paragraphs: With regard to certain federal civil matters, when both the plaintiff and the  defendant reside in American Samoa, and the events giving rise to the civil  action occurred in American Samoa, there may be no proper federal  venue, meaning there may be no federal court that may hear the case.  However, some civil cases have been brought against the Secretary of the  Department of the Interior (DOI) alleging that the Secretary’s  administration of the government of American Samoa violated the U.S.  Constitution. In such cases, the U.S. District Court for the District of  Columbia has been the appropriate forum, given that DOI is headquartered  in Washington, D.C.
Bankruptcy relief is not available in American Samoa since federal law has  not explicitly extended the U.S. Bankruptcy Code to American Samoa, and  there is not a federal court in American Samoa in which bankruptcy claims  may be adjudicated. However, U.S. bankruptcy courts may exercise  jurisdiction over petitions for relief filed by American Samoan entities  under certain circumstances, such as if the entities reside or do business  in a judicial district of the United States and the court finds that exercising  jurisdiction would be in the best interest of the creditors and the debtors.
section_title: The Federal Jurisdiction of American Samoa’s High Court is Very Limited Compared to Federal Courts in Other Insular Areas
paragraphs: Despite the absence of a federal court in American Samoa, federal law  provides that the local court—the High Court of American Samoa—has  limited federal civil jurisdiction. However, the federal jurisdiction of the  High Court of American Samoa is very limited compared to  comprehensive federal jurisdiction in federal courts located in CNMI,  Guam, and USVI. In particular, federal law has explicitly granted the High  Court of American Samoa federal jurisdiction for certain issues, such as  food safety, protection of animals, conservation, and shipping issues.
Although the High Court does not keep data on the number of federal  cases it handles, the Chief Justice of the High Court told us that, on  occasion, these federal matters, particularly maritime cases, have taken a  significant amount of the court’s time. The Chief Justice noted that the  piecemeal nature of the High Court’s federal jurisdiction sometimes  creates challenges. For example, although the High Court has jurisdiction  to hear certain maritime cases, the High Court does not have the authority  under certain federal statutes to enjoin federal court proceedings or to  transfer a case to a federal court. Such a situation may lead to parallel  litigation in the High Court and a federal court.
In addition to the limits of federal jurisdiction, there are differences in the  way federal matters are heard in the High Court compared to the federal  courts in other insular areas. For example, whereas the Secretary of the  Interior asserts authority to review High Court decisions under federal  law, the U.S. Courts of Appeals have appellate review of decisions of the  federal courts in CNMI, Guam, and USVI. Also, as stated earlier, whereas  the Justices of the High Court of American Samoa are appointed by the  Secretary of the Interior, the judges of the federal courts in CNMI, Guam,  and USVI are appointed by the President, with the advice and consent of  the U.S. Senate.
section_title: Proposals for Changing the Current System of Adjudicating Matters of Federal Law in American Samoa Remain Controversial
paragraphs: While various proposals to change the current system of adjudicating  matters of federal law in American Samoa have been periodically  discussed and studied, controversy remains regarding whether any  changes are necessary and, if so, what options should be pursued. In the  mid-1990s, various proposals to change the current system were studied  by judicial committees and federal officials. Issues that were raised at that  time, such as protecting American Samoan culture and traditions,  resurfaced during our interviews with federal and American Samoa  government officials, legal experts, and in group discussions and public  comments we received. Reasons offered for changing the existing system  focus primarily on the difficulties of adjudicating matters of federal law  arising in American Samoa, along with the goal of providing American  Samoans with more direct access to justice in their place of residence.  Reasons offered against changing the current system of adjudicating  matters of federal law focus largely on concerns about the impact of an  increased federal presence on Samoan culture and traditions, as well as  concerns regarding the impartiality of local juries.
subsections: section_title: Concerns with White- Collar Crime Led to Discussions in the Mid- 1990s on Changing the System for Adjudicating Matters of Federal Law in American Samoa
paragraphs: The issue of changing the system for adjudicating matters of federal law in  American Samoa has been raised in the past in response to a government  audit and subsequent reports, which cite problems dating back to the  1980s. These reports cited problems with deteriorating financial  conditions, poor financial management practices, and vulnerability to  fraudulent activities in American Samoa. In March 1993, the newly  elected Governor of American Samoa requested assistance from the  Secretary of the Interior to help investigate white-collar crime in American  Samoa in response to a projected $60 million deficit uncovered by a DOI  Inspector General audit. As a result of this request, a team from DOJ  spent 3 months assessing the problem of white-collar crime in American  Samoa and completed its report in December 1994. The report concluded  that white-collar crime—in particular, public corruption—was prevalent in  American Samoa and provided details on the difficulties with enforcing  federal law in American Samoa. The report discussed three possible  solutions: (1) establishing a district court in American Samoa, (2)  providing the U.S. District Court of Hawaii with jurisdiction over certain  matters of federal law arising in American Samoa, or (3) providing the  High Court of American Samoa with federal criminal jurisdiction.
By August 1995, the U.S. Congress held hearings on the 1994 DOJ report  and possible alternatives to provide for the prosecution of federal crimes  arising in American Samoa. At the hearing, some American Samoa  government officials opposed suggestions for changing the judicial system  in the territory and views were expressed regarding increased federal  presence, the desire to retain self-determination over the judicial  structure, and the need to protect and maintain the matai title and land  tenure system in American Samoa. The American Samoa Attorney General  at that time testified that his office and the Department of Public Safety  had created a Joint Task Force on Public Corruption that investigated and  prosecuted several white-collar offenses, including embezzlement, bribery,  fraud, public corruption, forgery, and tax violations.
For several months following the 1995 congressional hearings, different  legislative options were studied by judicial committees within Congress  and federal officials. One bill was drafted that would have given the U.S.  District Court of Hawaii limited jurisdiction over federal cases arising in  American Samoa. The bill proposed that one or more magistrate judges  may sit in American Samoa, but district judges of the U.S. District Court of  Hawaii would presumably preside over trials in Hawaii. The bill was  opposed by some federal judicial officials citing an unfair burden that  would be placed on the District of Hawaii, as well as on defendants,  witnesses, and juries due, in part, to the logistical difficulties in  transporting them between American Samoa and Hawaii. By 1996, the  proposed legislation was revised to establish an Article IV court in  American Samoa with full staff accompaniments and limited federal  jurisdiction that would exclude cases that would put into issue the office  or title of matai and land tenure. While DOJ sent the legislation to the  President of the Senate and Speaker of the House in October 1996, it was  never introduced into the 104th Congress or in subsequent congressional  sessions.
section_title: Concerns about Human Trafficking and Federal Grant-Related Corruption Have Heightened Law Enforcement Focus on American Samoa
paragraphs: While the mid-1990’s legislative proposals were primarily concerned with  white-collar crime in American Samoa, different types of criminal  activities have more recently emerged. Prior to 1999, FBI officials told us  that allegations of criminal activity in American Samoa were investigated  by agents based in its Washington, D.C. field office and, due to the  distance and costs involved, very few investigations were initiated. Around  mid-1999, FBI began to assign Hawaii-based agents to investigations in  American Samoa in response to increasing reports of criminal activity.  Then, due to growing caseload and a crime assessment, in December 2005,  FBI opened a resident agency in American Samoa. According to an FBI  official, other than a National Park Service fish and wildlife investigator  affiliated with the National Park of American Samoa, the FBI agents were  the first federal law enforcement agents to be stationed in American  Samoa. FBI’s increased activities over the past 8 years, and establishment  of a resident agency, have targeted a growing number of crimes in  American Samoa, including public corruption of high-ranking government  officials, fraud against the government, civil rights violations, and human  trafficking. Among the most notable was U.S. v. Lee, which was the largest  human trafficking case ever prosecuted by DOJ, as reported in 2007. This  2001 case involved about 200 Chinese and Vietnamese victims who were  held in a garment factory. In 2003, Lee was convicted in the U.S. District  Court of Hawaii of involuntary servitude, conspiring to violate civil rights,  extortion, and money laundering. Another federal case in 2006 resulted in  guilty pleas from the prison warden and his associate for conspiring to  deprive an inmate of rights, by assaulting him and causing him bodily  injury.
In December 2004, we found that American Samoa’s failure to complete  single audits, federal agencies’ slow reactions to this failure, and  instances of theft and fraud limited accountability for 12 key federal grants  supporting essential services in American Samoa. We recommended,  among other things, that the Secretary of the Interior coordinate with  other federal agencies to designate the American Samoa government as a  high-risk grantee until it completed all delinquent single audits. In June  2005, DOI designated the American Samoa government as a high-risk  grantee. The American Samoa government subsequently completed all  overdue audits and made efforts to comply with single audit act  requirements. Later, in December 2006, we reported that insular area  governments, including American Samoa, face serious economic, fiscal,  and financial accountability challenges and that their abilities to  strengthen their economies were constrained by their lack of  diversification in industries, scarce natural resources, small domestic  markets, limited infrastructure, and shortages of skilled labor. Again, we  cited the long-standing financial accountability problems in American  Samoa, including the late submission of the reports required by the Single  Audit Act, the inability to achieve unqualified (“clean”) audit opinions on  financial statements, and numerous material weaknesses in internal  controls over financial reporting and compliance with laws and  regulations governing federal grant awards. We made several  recommendations to the Secretary of the Interior, including increasing  coordination activities with officials from other federal grant-making  agencies on issues such as late single audit reports, high-risk designations,  and deficiencies in financial management systems and practices. DOI  agreed with our recommendations, but we have not yet assessed its  progress toward implementing them.
In addition to these GAO reviews, FBI and various inspector general  agents have conducted a broad investigation into federal grant-related  corruption in American Samoa, which yielded guilty pleas in October 2005  from four former American Samoa government officials, including the  Director of Procurement, the Director of the Department of Education, the  Director of the Department of Health and Social Services, and the Director  of the School Lunch Program. Additionally, recent audits and  investigations by the Inspector General offices of the Departments of  Homeland Security, Education, and the Interior indicate that the American  Samoa government has inadequate controls and oversight over federal  funds, that federal competitive bidding practices have been circumvented,  and that American Samoan officials have abused federal funds for  personal benefit. For example, in September 2007, officials from the U.S.  Department of Education designated the American Samoa government as  a high-risk grantee due to serious internal control issues raised in previous  single audits, and cited a number of underlying fiscal and management  problems. Due to the department’s concerns about the American Samoa  government’s ability to properly administer and provide services with its  funds, the department imposed several special conditions, including  restrictions on the drawdown of grant funds. Also, the American Samoa  legislature, or Fono, has been assisting federal agencies in their efforts to  investigate public corruption and other crimes. Specifically, in early 2007,  the Fono established a Senate Select Investigative Committee to review  and investigate any unlawful, improper, wasteful, or fraudulent operations  involving local and federal funds or any other misconduct involving  government operations within all departments, boards, commissions,  committees, and agencies of the American Samoa government. An official  stated the committee reviews and investigates complaints, holds senate  hearings with relevant witnesses, and can refer cases to either the  American Samoa Attorney General or FBI for investigation and  prosecution.
section_title: Reasons Offered for Changing the Current System Focus Principally on the Difficulties of Adjudicating Matters of Federal Law and Greater Access to Justice
paragraphs: As was the case in the 1990s, and was repeated in the interviews we  conducted and e-mail comments we received, the reasons offered for  changing the American Samoa judicial system principally stem from  challenges associated with adjudicating matters of federal law arising in  American Samoa and the desire to provide American Samoans with  greater access to justice. Federal law enforcement officials have identified  a number of issues that limit their ability to pursue matters of federal law  arising in American Samoa. These include logistical challenges related to  American Samoa’s remote location. Proponents of changing the judicial  system of American Samoa also cite reasons, such as providing American  Samoans more direct access to justice as in other insular areas, serving as  a possible deterrent to crime, and providing a means to alleviate the  shame, embarrassment, and costs associated with being taken away to be  tried more than 2,000 miles from American Samoa. While the main areas of  concern in the mid-1990s and in our discussions were related to criminal  matters arising in American Samoa, there were also concerns regarding  civil matters, such as federal debt collection, although these were not  addressed in much detail.
subsections: section_title: Logistical Challenges Related to American Samoa’s Remote Location
paragraphs: Without a federal court in American Samoa, investigators and federal  prosecutors whom we interviewed said they were limited in their ability to  conduct investigations and prosecute cases due to logistical obstacles  related to working in such a remote location. In addition to high travel  costs, and infrequent flights into and out of American Samoa, DOJ officials  said they face difficulties involving effective witness preparation and  difficulties communicating with agents during a small window of time  each day (due to the 7-hour time difference between Washington, D.C. and  American Samoa). In some cases, search warrants or wiretaps were not  used by the prosecutors to the extent that they would have been if  American Samoa were in closer proximity to Washington, D.C. or  Honolulu, Hawaii. Federal prosecutors told us that far fewer witnesses  have been called to testify in front of the grand jury, given the burden of  high travel costs from American Samoa. Federal prosecutors also told us  that they must rely on witness observations and summaries from federal  agents stationed in American Samoa rather than meet key witnesses face  to face before bringing charges or issuing subpoenas, as they would  typically do. Further, according to DOJ officials, the cost related to  managing these cases has limited the number of cases they are able to  pursue. Federal law enforcement agents told us that a federal court  located in American Samoa could bring additional investigative and  prosecutorial resources so that they would be able to pursue more cases.  Although some have suggested that judicial and prosecutorial resources  from the judicial districts of CNMI and Guam be deployed to American  Samoa, the high travel costs and logistical obstacles would not be any less,  given that there are no direct flights between American Samoa and Guam  or between American Samoa and CNMI.
section_title: More Direct Access to Federal Court and Parity with Other Insular Areas
paragraphs: Another key reason offered for changing the system for adjudicating  matters of federal law in American Samoa is that a federal court would  provide residents with more direct access to justice and the ability to more  easily pursue cases in the federal court system. Currently, the ability to  adjudicate federal cases exists only in very limited cases through the High  Court, at a significant cost of time and money to travel to U.S. District  Courts in Hawaii or Washington, D.C.; or not at all, in the case of some  civil matters and bankruptcy. Proponents state that the establishment of a  federal court would provide American Samoa parity with other insular  areas, such as CNMI, Guam, and USVI, which have federal courts. Further,  a legal expert said that a federal court in American Samoa would provide  the community with an opportunity to see first hand how parties can come  together to resolve their differences with regard to federal matters. For  example, some have asserted that if public corruption trials were held in  American Samoa, they would act as a deterrent to others contemplating  fraudulent behavior; increase accountability with regard to government  spending; and provide satisfaction in witnessing wrong doers brought to  justice. Some stated in the February 2006 public hearing held by the Fono  and in e-mail comments we received that they have felt shame and  embarrassment when defendants are taken to distant courts and in our  group discussions, it was stated that American Samoa is perceived by  others as unable to render justice to its own residents. Further, some  officials have noted the significant costs that defendants’ families must  bear in traveling great distances to provide support during trials. This  burden is exacerbated by the comparatively low family incomes in  American Samoa, which, as stated earlier, are less than half of the U.S.  median household income, according to 2000 Census Bureau data.
Finally, some people we met with stated that the current system of holding  federal criminal trials outside of American Samoa subjects defendants to  possible prejudices by jurors in other locations. They cited the relative  unfamiliarity of the judges and jurors in Washington, D.C. or Honolulu,  Hawaii regarding American Samoan cultural and political issues and  suggested that American Samoans would receive a fairer trial in American  Samoa than in these locations. This issue had also been discussed in the  mid-1990s. For example, in his testimony during August 1995  congressional hearings, the then-Governor of American Samoa stated that  the people of American Samoa have the ability to deliver just verdicts  based on the evidence presented. He noted that for almost 20 years prior,  the trial division of the High Court had successfully conducted six-person  jury trials as evidence that American Samoan customs and family loyalties  had not prevented effective law enforcement.
subsections: section_title: Comments from Group Discussions and E-mail Responses Reflect Some of the Same Reasons Offered for Changing the Current System
paragraphs: Views in support of changing the current system were also reflected in  some comments made during the group discussions we held in American  Samoa and in some of the e-mail responses we received. Some members of  the public expressed discontent over the significant costs associated with  American Samoan defendants and their families having to travel to Hawaii  or Washington, D.C. for court matters and they expressed the importance  of having a jury of their peers deciding their cases. Other members of the  public and a local community group expressed their belief that a federal  court in American Samoa may act as a deterrent for the abuse of federal  funds and public corruption, and provide opportunities for American  Samoans to pursue federal legal matters, such as bankruptcy. While there  was no consensus opinion, certain members of the local bar association  mentioned that having a federal court could be beneficial for economic  development, by attracting qualified attorneys and court staff to American  Samoa. Additionally, one member stated that a federal court may lighten  the workload and reduce the backlog of the High Court by taking over its  federal maritime and admiralty matters.
section_title: Reasons Offered Against Changing the Current Judicial System Focus Principally on Preserving the Culture and Traditions of American Samoa and Concerns about Juries
paragraphs: One of the key reasons offered against changing the current judicial  system is the concern that a federal court would impinge upon Samoan  culture and traditions. The most frequent concerns raised were related  issues— that the system of matai chiefs and the land tenure system could  be jeopardized. In raising these issues, some cited the deeds of cession  which specify that the United States would preserve the rights and  property of the Samoan people. Further, some law enforcement officials  we met with also opposed a change to the current system for prosecuting  federal cases arising in American Samoa because they were concerned  that, given the close familial ties in American Samoa, it would be difficult  to obtain convictions from local jurors.
subsections: section_title: Preservation of Local Culture and Traditions
paragraphs: During the February 2006 Fono hearings, in e-mail comments we  received, and in statements by American Samoa government officials we  interviewed, concerns were voiced that the establishment of a federal  court in American Samoa could jeopardize the matai and land tenure  system of American Samoa. As noted above, matai hold positions of  authority in the community; for example, only matai may serve as  senators in the American Samoa legislature, and matai control the use and  development of the communal lands and allocate housing to their  extended family members. The land tenure system of American Samoa is  such that the majority of the land in American Samoa is communally  owned, and the sale or exchange of communally owned land is prohibited  without the consent of the Governor. Also prohibited is the sale or  exchange of communally owned and individually owned property to  people with less than one-half Samoan blood. American Samoa  government officials assert that the land tenure system fosters the strong  familial and community ties that are the backbone of Samoan culture and  that limits on the transfer of land are important to preserve the lands of  American Samoa for Samoans and protect the Samoan culture.
Currently, cases regarding matai titles and land issues, such as disputes  over the rightful successor to a matai or land use or improvements, are  heard by the land and titles division of the High Court of American Samoa.  This division is composed of the Chief Justice and Associate Justice, as  well as associate judges, who are appointed based on their knowledge of  Samoan culture and tradition. Pursuant to the federalist structure of the  U.S. judiciary, if a federal court were established in American Samoa, most  cases arising under local law, such as matai and land disputes, would  likely continue to be heard by the local court. However, some American  Samoa officials stated that they are concerned that if a federal court was  established in American Samoa, a federal judge, without the requisite  knowledge of Samoan culture and tradition, would hear land and title  cases. They stated that they would like to keep matai title and land tenure  issues within the jurisdiction of the High Court.
Another concern that was raised by government officials and residents of  American Samoa is that the presence of a federal court in American Samoa  may generate constitutional challenges to the matai and land tenure  system. Though such challenges may currently be brought in existing  venues, some voiced concerns that the establishment of a federal court in  American Samoa may make such challenges less costly and, perhaps, more  likely.
To this day, our native land tenure system remains at the very core of our existence: our  culture, our heritage and our way of life. Without our native land tenure system, our matai  or chieftain system will fade over time—along with our language, our customs and our  culture….we, as a people, have an overriding desire to keep the fabric of our society (i.e.,  our Samoan culture) intact. No other U.S. state or territory enjoys the total and complete  preservation of its people’s culture as American Samoa. I fear that the imposition of a  federal court system in American Samoa may have a destructive impact on our culture.
section_title: Concerns about Juries
paragraphs: Some have raised concerns regarding the establishment of a federal jury  system, given the potentially small pool of U.S. citizens in American Samoa  and the extended family ties among American Samoans. Federal law  provides that federal jurors must be U.S. citizens.  As discussed earlier,  American Samoans are U.S. nationals, not U.S. citizens, although they may  apply and become U.S. citizens. Neither the U.S. Census Bureau nor the  American Samoa Department of Commerce provides data on the number  of U.S. citizens in American Samoa. Thus, the proportion of the American  Samoa adult population who are U.S. citizens is unknown. If the number of  U.S. citizens is fairly small, then the pool from which to select federal  jurors would be fairly small without a statutory change. In addition, law  enforcement officials have speculated that extended family ties in  American Samoa may limit the government’s ability to successfully  prosecute cases. Specifically, they raised the issue of jury nullification— the rendering of a not guilty verdict even though the jury believes that the  defendant committed the offense—as a potential problem that may occur  if jury trials were held in American Samoa, due to the influence of familial  ties or other societal pressures on jurors. Federal law enforcement  officials we met with added that some witnesses involved in testifying  against others in previous federal criminal cases have relocated outside of  American Samoa and have lost their jobs and housing as a result of their  participation in cases. These officials stated that they believe that similar  societal pressures will be imposed on jurors if trials were held in American  Samoa. These officials concluded that the current system of federal  criminal trials taking place away from American Samoa is the best way to  get unbiased juries.
section_title: Comments from Group Discussions and E-mail Responses Reflect Some of the Same Reasons Offered Against Changing the Current System
paragraphs: Views expressing opposition to changing the current system were also  reflected in some comments we received from the group discussions we  held in American Samoa and from e-mail responses. Some members of the  public expressed concerns over an increased federal presence in American  Samoa and the potential legal challenges which could be brought  regarding the land tenure system and matai title traditions. Further, some  expressed concerns about non-Samoans filing discrimination lawsuits over  their inability to own land. Some stated that the current system operates  well and they did not see a need for change. Others expressed opposition  to a federal court in American Samoa due to their concerns about  impartial jurors. They stated that if a federal court were established in  American Samoa, jurors may not be able to be impartial because of the  close relations through family, culture, church, government, or business.  Finally, others expressed concerns about the U.S. government pushing and  imposing its will on American Samoa, and their belief that changes to the  current system should come not from the federal government but from  American Samoans themselves.
section_title: Scenarios for Establishing a Federal Court in American Samoa or Expanding the Federal Jurisdiction of the High Court of American Samoa Have Varied Support and Unresolved Issues
paragraphs: Based on our review of legislative proposals considered during the mid- 1990s, testimonies and reports, and through discussions with legal experts  and American Samoa and federal government officials, we identified three  potential proposals, or scenarios, if a change to the judicial system of  American Samoa were to be made. These scenarios are (1) establishing an  Article IV district court in American Samoa, (2) establishing a district  court in American Samoa that would be a division of the District of  Hawaii, or (3) expanding the federal jurisdiction of the High Court of  American Samoa. Each scenario would require a statutory change and  present unique operational issues to be addressed. To the extent possible,  we cited written documents and knowledgeable sources in the discussion  of these issues. See appendix I for detailed information on our scope and  methodology.
subsections: section_title: Three Scenarios Present Different Structures and Operational Issues to Be Resolved
paragraphs: Based on our review of past legislative proposals, testimonies, and reports,  and through discussions with legal experts and American Samoa and  federal government officials, we identified three potential scenarios for  establishing a federal court in American Samoa or expanding the federal  jurisdiction of the High Court of American Samoa:  1.  establishing an Article IV district court in American Samoa,  2.  establishing a district court in American Samoa that would be a  division of the District of Hawaii, or  3.  expanding the federal jurisdiction of the High Court of American  Samoa.
These scenarios are similar to those discussed in the 1990s, and are  described in more detail in attachment I. Each scenario would require a  statutory change and each presents unique operational issues that would  need to be resolved prior to implementation. Some issues to be resolved  include determining:    what jurisdiction would be granted to the court;    what type of courthouse facility and detention arrangements would be  needed and to what standards, including security standards; and    what jury eligibility requirements would apply.
subsections: section_title: Scenario 1: Establishing an Article IV District Court in American Samoa
paragraphs: The original structure of this scenario came from draft legislation  submitted by DOJ to the Speaker of the U.S. House of Representatives and  the President of the U.S. Senate in October 1996, which proposed the  creation of a new federal court in American Samoa. The legislation  specified that the court would have limited jurisdiction that would exclude  matters pertaining to matai title and land tenure issues. Under this  scenario, federal law would authorize a federal court structure that most  closely resembled federal courts in CNMI, Guam, and USVI. It would  include an Article IV district court with a district judge, court clerk, and  support staff. Below is a description of the key issues under this scenario.
Jurisdiction: The statute creating the Article IV district court would  specify the court’s jurisdiction. It could be limited to criminal cases only,  or may or may not include bankruptcy, federal question, and diversity  jurisdiction. American Samoa officials and others whom we interviewed  were divided on whether the law establishing a district court in American  Samoa should explicitly exclude matai and land tenure issues from the  court’s jurisdiction. Another possibility is that, as in other insular area  federal courts, the federal jurisdiction of the court could grow over time.  For example, while the District Court of Guam began with jurisdiction  over cases arising under federal law in 1950, subsequent federal laws  expanded its jurisdiction to include that of a district court of the United  States, including diversity jurisdiction, and that of a bankruptcy court.
Appeals process: The process for appealing decisions would be the same  as in other Article IV district courts. Appeals would first go to the U.S.  Court of Appeals for the Ninth Circuit and then to the U.S. Supreme Court.
Judges: The judge would be appointed in the same manner as federal  judges for the other insular areas, who are appointed by the President,  with the advice and consent of the Senate, for 10-year terms.
Associated Executive and Judicial Branch staff: Probation and  Pretrial services staff, U.S. Attorney and staff, and U.S. Marshals staff  would establish stand-alone offices. Defender services could be provided,  at least initially, through the Federal Public Defender Organization  personnel based in the District of Hawaii and/or Criminal Justice Act  (CJA) panel attorneys. CJA panel attorneys are designated or approved  by the court to furnish legal representation for those defendants who are  financially unable to obtain counsel.
Physical facilities: Under this scenario, a new courthouse facility would  need to be built to provide the courtroom, judge’s chambers, office space  for federal court staff, and a holding area for detaining defendants during  trials. It is not clear if a detention facility for detaining defendants pretrial  and presentencing would need to be built or if a portion of the existing  local prison could be upgraded to meet federal standards. According to the  U.S. Marshals Service, the current local prison in American Samoa does  not meet federal detention standards.
Operational issues: Several judicial officials and experts we met with  stated that this scenario is the most straightforward option because it  would be modeled after the federal courts in other insular areas, which  would place residents of American Samoa in a position that is equitable  with residents of the other insular areas. Other judicial officials we met  with stated, however, that this is potentially the most costly scenario of  the three, given the relatively small caseload expected. However, the  Pacific Islands Committee stated in its 1995 Supplemental Report that  new federal courts historically have drawn business as soon as they open  their doors, and it is likely that growth in the court caseload would result.
section_title: Scenario 2: Establishing a District Court in American Samoa That Would Be a Division of the District of Hawaii
paragraphs: This scenario would create a new division of American Samoa within the  District of Hawaii. There are potentially several arrangements which  could be devised to handle court matters. Since the U.S. District Court of  Hawaii is an Article III court, a judge assigned to a Division of American  Samoa would also presumably be an Article III judge, which would differ  from the Article IV courts in CNMI, Guam, and USVI. Another possibility  would be to assign an Article IV judge to American Samoa. Regardless of  the arrangement, a clerk of the court and support staff would be needed in  American Samoa to handle the work of the court.
Jurisdiction: As with scenario 1, the statute creating the division in the  District of Hawaii would specify the court’s jurisdiction. It could be limited  to criminal cases only, or may or may not include bankruptcy, federal  question, and diversity jurisdiction.
Appeals process: The process for appealing decisions would be the same  as the District of Hawaii, to the U.S. Court of Appeals for the Ninth Circuit  and then to the U.S. Supreme Court.
Judges: An Article III or Article IV judge would be appointed by the  President, with the advice and consent of the Senate, and serve either a  life term with good behavior (Article III) or a 10-year term (Article IV) as is  true in Guam, CNMI, and USVI.
Associated Executive and Judicial Branch staff: Probation and  Pretrial services, U.S. Attorney, and U.S. Marshals could provide the  minimum staff required in American Samoa and share support functions  with their offices in the District of Hawaii. Defender services could be  provided, at least initially, through Federal Public Defender Organization  personnel based in the U.S. District Court of Hawaii and/or CJA panel  attorneys.
Physical facilities: As with scenario 1, a new courthouse facility would  need to be built to provide the courtroom, judge’s chambers, office space  for federal court staff, and a holding area for detaining defendants during  trials. Also, similar to scenario 1, it is unclear whether a new detention  facility would need to be built or if a portion of the existing local prison  could be upgraded to meet federal standards.
Operational issues: Some federal and judicial officials we interviewed  told us that this scenario may be less costly than scenario 1 because as a  division of the District of Hawaii, some administrative functions and  resources may be able to be shared with Hawaii. Other federal and judicial  officials told us that costs for staff to travel between American Samoa and  Hawaii and additional supervisory staff which may be needed in Hawaii  may make scenario 2 just as costly, or possibly more costly than scenario  1. Although this scenario would allow for trials to be held in American  Samoa, there may be issues to be resolved concerning the status of any  judges that would serve in the court and the degree to which resources  could or would be shared with the U.S. District Court of Hawaii. For  example, some judicial officials have raised questions of equity about the  possibility of Article IV judges being assigned to federal courts in CNMI,  Guam, and USVI while an Article III judge was assigned to the federal  court in American Samoa.
section_title: Scenario 3: Expanding the Federal Jurisdiction of the High Court of American Samoa
paragraphs: This scenario would expand the federal jurisdiction of the High Court of  American Samoa rather than establish a new federal court. This would be  a unique structure, as local courts typically do not exercise federal  criminal jurisdiction. As a result, a number of unresolved issues associated  with this scenario would have to be resolved should this scenario be  pursued.
Jurisdiction: The jurisdiction of the High Court would be expanded to  include additional federal matters, such as federal criminal jurisdiction.  This would be a unique structure, as local courts generally do not exercise  federal criminal jurisdiction. While there is a history of federal courts in  insular areas with jurisdiction over local offenses, there has never been  the reverse—a local court with jurisdiction over both local and federal  offenses.
Appeals process: The appellate process for federal matters under such a  scenario is unclear. The current process for the limited federal cases  handled by the High Court has five levels of appellate review: (1) to the  Appellate Division of the High Court, (2) to the Secretary of the Interior,  (3) to the U.S. District Court for the District of Columbia, (4) to the U.S.  Court of Appeals for the District of Columbia Circuit, and (5) to the U.S.  Supreme Court. Whether the appeals process would be amended to match  that of the federal courts in CNMI, Guam, and USVI would have to be  determined.
Judges: The Chief Justice of the High Court stated that the High Court  may need an additional judge to handle the increased caseload.  Alternatively, in our discussions, Pacific Island Committee members with  whom we met suggested that the Secretary of the Interior or the Chief  Judge of the Ninth Circuit could designate active and senior district judges  within the Ninth Circuit to handle any court workload in American Samoa.  They point out that they designated judges from the Ninth Circuit to the  District of Guam for over 2 years, when there was an extended judge  vacancy. Further, the Ninth Circuit has designated local judges to handle  federal matters, when necessary. For example, the judges from the  Districts of CNMI and Guam routinely use local Superior Court or  Supreme Court judges to handle federal court matters and trials, in cases  when they must recuse themselves from a court matter or in the case of a  planned or emergency absence. However, Pacific Island Committee  members with whom we met stated that presumably federal judges would  only handle federal court matters. It was unclear whether High Court  justices would handle federal and local court matters and what  implications might arise from such a structure.
Associated Executive and Judicial Branch staff: It is unclear whether  Probation and Pretrial services, U.S. Attorneys, and U.S. Marshals would  be established, since these staff are only provided to a district court.  Similarly, the authority under the CJA to authorize a federal defender  organization to provide representation or to compensate panel attorneys is  vested in the district court. The Department of Justice would need to  determine whether it would establish a federal prosecutor position in  American Samoa to prosecute certain federal cases in the High Court.  There are local Public Defender and Attorney General Offices in American  Samoa and the extent to which they could assist with cases is unknown.  According to the Chief Justice of the High Court, it is unlikely that the  existing probation and pretrial or court security staff would be able to  handle an increased workload. Currently the High Court has three  probation officers who work part-time as translators for the court, and  two marshals, one for each of the High Court’s two courtrooms.
Physical facilities: The extent to which federal detention and courtroom  security requirements would apply is uncertain. Until this issue is resolved,  activities could possibly continue in existing courthouse and detention  facilities. However, the High Court justices and clerk said that current  courtroom facilities are already used to capacity without the added  caseload that federal jurisdiction could bring.
Operational issues: This scenario may be the lowest-cost scenario and  may alleviate concerns about the threat to the matai and land tenure  systems. It is potentially the lowest-cost scenario because some of the  existing court facilities and staff may be used. Some leaders within the  American Samoa government believe this is the best option and  supporters of this scenario note that the High Court has a history of  respecting American Samoa traditions and so they have fewer concerns  that issues of matai titles and land tenure would be in jeopardy. At the  same time, as it is unprecedented to give federal criminal jurisdiction to a  local court, this scenario could face the most challenges of the three,  according to federal judges and other judicial officials. Legal experts with  whom we met told us that, because this is a unique arrangement, the High  Court and U.S. judiciary may be faced with having to constantly solve  unique problems and develop solutions on a regular basis. For example,  judicial officials stated that the High Court Justices would have to be  cognizant of their roles and responsibilities when shifting from the duties  of a local High Court Justice to the duties of a federal judge. A judicial  official also noted that the High Court justices may have to become  familiar with federal sentencing guidelines, which require a considerable  amount of training. In the August 1995 hearing, the DOJ Deputy Assistant  Attorney General stated that vesting federal jurisdiction in the High Court  runs counter to well-established legislative policy that district courts  should have exclusive jurisdiction over certain types of proceedings to  which the United States is a party. For example, federal law states that  U.S. district courts have exclusive jurisdiction over all offenses against the  criminal laws of the United States and with respect to the collection of  debts owed to the United States, provides for an exclusive debt collection  procedure in the courts created by Congress. Similarly, federal regulatory  statutes often provide for enforcement and judicial review in the federal  courts.
Another issue to be resolved is the appointment process for justices of the  High Court. While none of the judicial officials with whom we met had  concerns about the independence of the current justices, some expressed  concerns about the differences in the way judges are appointed—while  federal judges are generally appointed by the President, the justices in  American Samoa are appointed by the Secretary of the Interior. As such,  they suggested that the justices in American Samoa may not be subject to  the same vetting process and protected by the same constitutional and  statutory provisions—such as salary guarantees—as are district judges.
section_title: Potential Cost Elements Subject to Considerable Uncertainties
paragraphs: The potential cost elements for establishing a federal court in American  Samoa include agency rental costs, personnel costs, and operational costs;  most of which would be funded by congressional appropriations. We  collected likely cost elements, to the extent possible, for scenario 1 and 2  from the various federal agencies that would be involved in establishing a  federal court in American Samoa. We did not collect cost data for scenario  3 because of its unique judicial arrangement and because there was no  comparable existing federal court structure upon which to estimate costs.
For scenario 1 and 2, AOUSC officials told us that a new courthouse would  need to be built. GSA officials told us that court construction and agency  rental costs would be comparatively high—about $80 to $90 per square  foot for a new courthouse, compared to typical federal government rental  charges for office space in American Samoa of around $45 to $50 per  square foot in 2007. Funding sources for the judiciary and DOJ derive  primarily from direct congressional appropriations and funding for a  federal courthouse in American Samoa would likely be funded similarly.  We found the data for scenarios 1 and 2 sufficiently reliable to provide  rough estimates of the possible future costs for these scenarios for  establishing a federal court in American Samoa, with limitations as noted.
subsections: section_title: Court Construction and Agency Rental Costs Would be Comparatively High
paragraphs: Due to limitations on existing buildings and potential land restrictions— about 90 percent of American Samoan land is communally owned—GSA  officials told us that a new courthouse in American Samoa would likely  use a build-to-suit lease construction arrangement rather than  government-owned construction and that construction and consequent  rental costs would be comparatively high. GSA provided initial  construction and rental costs for the hypothetical courthouse in American  Samoa, based on a floor plan submitted for a proposed new one-judge  courthouse in CNMI. According to GSA officials, there are no buildings in  American Samoa suitable for use as a federal courthouse. Further, officials  from the High Court of American Samoa told us that its two-courtroom  High Court building and its one-courtroom local district court building are  frequently used to capacity.
Under build-to-lease construction, the government contracts with a private  developer to build the courthouse and, in this case, GSA leases the  completed building based on the amortization of a 20-year construction  loan. GSA would then rent portions of the building to the tenant federal  agencies, such as AOUSC, EOUSA, and USMS. GSA officials gave very  preliminary rent estimates of $80 to $90 per square foot, based on  requirements similar to an existing build-to-suit lease prospectus for a new  courthouse in CNMI. Further, GSA officials told us that federal agencies  would be responsible for up-front payments for the particular courthouse  governmental features, such as holding cells, and blast protection for  security. GSA officials indicate that the accuracy of the initial American  Samoa court construction may vary by as much as -20 to +80 percent,  thereby influencing rental costs. The GSA Assistant Regional  Administrator for Region IX Pacific Rim stated that there are many factors  that could affect construction costs and, therefore, the tenant agencies’  rental costs. For example, any cost increases associated with the condition  of an unknown site or escalation in construction costs beyond what has  been anticipated will have a direct and proportional impact on the rental  costs, as well as the up-front costs that agencies may be required to pay.
Preliminary rental costs of $80 to $90 per square foot for a new courthouse  with specialized building requirements would exceed typical federal  government rental charges for offices in American Samoa at the prevailing  market rates of $45 to $50 per rentable square foot in 2007.
section_title: Judicial Branch Costs Include Judges, Court Staff, and Federal Defender
subsections: section_title: Scenario 1 Costs
paragraphs: District court costs: For yearly district court costs under scenario 1,  AOUSC provided us with district court cost estimates of about $1.5 million  for personnel costs, including the costs of one district court judge and the  full-time equivalent salaries of 2 law clerks and 1 secretary, 11 district  clerk’s office staff, 1 pro se law clerk, 1 court reporter, and recruitment  and training costs. Operational costs were estimated at $0.1 million,  which includes judge’s law books, stationery, forms, new case assignment  and jury management systems, travel, postage and delivery charges, and  consumables for both the first year and recurring years. Information  technology and other equipment costs were estimated at $0.1 million.  Space and facilities costs ranged between $2.6 million to $2.9 million and  include necessary alterations and renovations, signage, furnishings,  furniture, and estimated GSA rental costs.
Probation and pretrial services costs: For the yearly cost of probation  and pretrial services, AOUSC provided us with personnel and benefits  costs estimated at $0.3 million, which includes the full-time equivalent  salaries of one Chief Probation Officer, one probation officer, and one  administrative support staff. Operational costs were estimated at $0.1  million, including travel, training, transportation, postage, printing,  maintenance, drug dependent offender testing and aftercare, pretrial drug  testing, mental health treatment services, monitoring services, DNA  testing, notices/advertising, contractual services, supplies, awards,  firearms, and protective equipment. Information technology and other  equipment costs were estimated at about $16,000 (i.e., equipment,  maintenance, purchase of copy equipment, computer training, phone  communications, supplies, computers, phones, data communications  equipment, printers, scanner, and computer software). Space and  facilities costs were estimated at $0.4 million to $0.5 million, which  includes furniture and fixture purchases, as well as GSA rental costs.
Federal Defender costs: AOUSC officials did not estimate costs for a  Federal Defender’s office, since it is unlikely that the hypothetical court in  American Samoa would, at least initially, reach the minimum 200  appointments per year required to authorize a Federal Defender  Organization or the number of cases that would warrant the creation of a  Federal Public Defender Organization headquartered in the District of  Hawaii. The court in American Samoa, as an adjacent district, might be  able to share the Federal Public Defender Organization staff based in  Hawaii, or the court could rely solely on a CJA panel of attorneys. The  costs to the Federal Public Defender Organization in Hawaii and the costs  of reimbursing CJA attorneys would vary based on the caseload of the  court.
section_title: Scenario 2 Costs
paragraphs: District Court costs: According to AOUSC, the estimated district court  costs for scenario 2 could be similar to the estimated costs for scenario 1.  An AOUSC official indicated that there may not be a need for a clerk,  financial/procurement officer, jury clerk, or information technology  specialist in American Samoa under scenario 2, as those functions may be  handled out of the District of Hawaii office, leading to some possible  reductions in personnel salaries. However, some judicial officials stated  that any decrease in staff costs for this scenario may be offset by  increased costs for travel between Hawaii and American Samoa. GSA  rental costs would be comparable to scenario 1.
Probation and pretrial services costs: Probation and Pretrial Services  officials did not provide any cost differences between scenarios 1 and 2.
Federal Defender costs: Either the Office of the Federal Public  Defender in Hawaii or a CJA panel may provide defender services in  American Samoa under both situations, thereby also not leading to any  significant change in cost estimates between scenarios 1 and 2.
section_title: Executive Branch Costs Include Federal Prosecution and Security Costs
paragraphs: For the Department of Justice, an EOUSA official provided U.S. Attorney’s  Office cost estimates and a USMS official provided security cost estimates  for both scenario 1 and scenario 2.
subsections: section_title: U.S. Attorney’s Office Costs
paragraphs: Scenario 1 costs: EOUSA officials calculated the cost of a U.S. Attorney’s  office based on a partial first year and a complete second year. Modular  personnel costs are $0.6 million for the first year and $1.0 million for the  second year, which includes one U.S. Attorney, three attorneys, and two  support staff. Operational costs ranged from $0.5 million to $0.9 million,  including travel and transportation, utilities, advisory and assistance  services, printing and reproduction, and supplies and materials.  Information technology costs were estimated at $0.1 million for equipment  and the operation and maintenance of equipment. Space and facilities  costs range between $1.3 million and $1.4 million and include the  operation and maintenance of facilities and rent to GSA and others.
Scenario 2 costs: EOUSA officials calculated U.S. Attorney’s office  personnel costs for a partial first year and a complete second year.  Modular personnel costs rose from $0.6 million in the first year to $1.0  million throughout the second year, which includes four attorneys and two  support staff. Operational costs remain consistent at $0.2 million for both  the first and second years, reflecting travel and transportation, litigation  costs, supplies, and other miscellaneous costs. Information technology  and equipment costs were estimated to be approximately $0.1 million for  both years. Yearly rental rates may also be comparable in the initial years.  Personnel and operations costs for scenario 2 were estimated to be less  than for scenario 1 because scenario 2 does not include a separate U.S.  Attorney for American Samoa. Rather, the costs for scenario 2 are based  on the estimated costs and personnel the U.S. Attorney for the District of  Hawaii would need to support cases that arise in American Samoa.
section_title: U.S. Marshals Service Costs
paragraphs: Scenario 1 costs: USMS officials estimated that personnel costs were  $0.8 million, based on fiscal year 2008 salaries, benefits, and law  enforcement availability pay for all supervisory (one U.S. Marshal, one  Chief Deputy, one Judicial Security Inspector) and nonsupervisory (two  Deputy Marshals and one administrative) personnel that would be  needed. Operational costs were estimated to be $0.8 million based on  fiscal year 2008 standard, nonpersonnel costs for district operational and  administrative positions (including vehicles, weapons, protective gear,  communications equipment, and operational travel costs), and $0.7 million  for defendant transport (including guard wages, airfare, per diem meals,  and lodging). Information technology and equipment costs were  estimated at $0.6 million for the installation of a computer network and  telephone system to all USMS offices, and $0.2 million for yearly service  on the wide-area network to American Samoa. Space and facilities costs  were estimated between $1.1 million and $1.3 million for rent, plus  variable defendant detention facility housing costs.
Scenario 2 costs: With regard to scenario 2, USMS officials estimated  that yearly personnel costs would be $0.5 million. Since a U.S. Marshal,  Chief Deputy, and Judicial Security Officer would be shared with the  USMS in Hawaii and not be located in American Samoa, personnel costs  for this scenario are estimated to be approximately $0.4 million less than  scenario 1. Operational costs (reflecting the standard, nonpersonnel costs  for operational and administrative positions) under scenario 2 were  estimated to be $0.5 million, or about $0.3 million less than scenario 1. The  operational cost differential between the two scenarios with respect to  prisoner transport is unclear. While the USMS did not specifically address  information technology costs and other equipment costs with respect to  scenario 2, the same types of costs in scenario 1 would be involved if a  computer network and telephone system would need to be established.  With respect to space and facilities, if the USMS were housed in the same  court building as used for scenario 1, rental costs should be comparable  (between $1.1 million and $1.3 million.) If, however, under scenario 2, the  USMS were housed in an office building rather than a courthouse, then the  resulting cost may be lower than scenario 1. Additionally, to the extent  that defendants are detained in the same facilities as in scenario 1 (e.g., the  Bureau of Prisons detention facility in Hawaii), detention facility costs  should be comparable.
section_title: Potential Funding Sources Associated with Implementing the Different Scenarios
paragraphs: Funding for the federal judiciary and DOJ agencies derives primarily from  direct congressional appropriations to each agency and funding for a  federal court in American Samoa would likely be funded similarly. In fiscal  year 2006, about 94 percent of the total court salary and expense  obligations were obtained through direct judiciary funding. The remaining  6 percent was obtained through offsetting collections, such as fees. In that  same year, about 95 percent of the total Probation and Pretrial Services  obligations were obtained through direct congressional appropriations.
With regard to DOJ, in fiscal year 2006, 96 percent of the U.S. Attorneys’  obligations to support district court activities were obtained through  direct congressional appropriations and the remaining 4 percent were  obtained through other sources, such as asset forfeitures. In fiscal year  2008, USMS used direct congressional appropriations to cover the  expenses for staff hiring, payroll, relocation, personnel infrastructure,  rent, and utilities. The Office of the Federal Detention Trustee funds 100  percent of prisoner detention, meals, medical care, and transportation.  AOUSC funds 100 percent of the court security officers, magnetometers,  and security measures at courthouse entrances.
section_title: Concluding Observations
paragraphs: We are not making recommendations regarding whether the current  system and structure for adjudicating matters of federal law in American  Samoa should be changed. Also, given the multiple limitations on available  cost data, we are not making any determinations as to whether the current  system is more or less costly than the different scenarios for change  presented in this report. Rather, our purpose in reporting the issues has  been to provide decision makers with information regarding the issues  associated with potential scenarios for change. While the cost data are  very limited, in the end, the controversy surrounding whether and how to  create a venue for adjudicating matters of federal law emanating from  American Samoa is not principally focused on costs, but on other factors,  such as equity, justice, and cultural preservation. Thus, policy  considerations, other than an analysis of cost effectiveness, are more  likely to be the basis for deciding whether and how to establish a court  with federal jurisdiction in American Samoa.
Madame Chairwoman, this completes my prepared statement. I would be  happy to respond to any questions you or other Members of the  Subcommittee may have at this time.
section_title: Attachment II: GAO Contacts and Acknowledgments
subsections: section_title: GAO Contacts
paragraphs: For further information about this statement, please contact William O.  Jenkins, Jr. at (202) 512-7777 or jenkinswo@gao.gov. Contact points for  our Offices of Congressional Relations and Public Affairs may be found on  the last page of this statement. Staff making key contributions to this  statement were Christopher Conrad, Assistant Director, Nancy Kawahara,  and Tracey King.
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