Regulating custom: Land, law and central judiciary in Samoa

Journal of Pacific History

Volumn 32, Issue 2, 1997, Pages 153-179

  Olson, M D ^a  

^a NONE

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EID: 0000434020     PISSN: 00223344     EISSN: None     Source Type: Journal    
DOI: 10.1080/00223349708572836     Document Type: Article

References (143)

1. 'E le soifua umi le tagata faatau fanua.' E. Schultz, 'Samoan Laws Concerning the Family, Real Estate and Succession', trans. from German by Rev. Fr E. Bellwald (n.d.), 17 (MS, Manoa, University of Hawaii, The Pacific Collection). Between 1903-11, Erich Ewerth-Schultz headed the Land & Titles Commission, a forerunner of the current Land and Titles Court in Western Samoa, and then served as German Samoa's Governor- General until the outbreak of World War I.
2. United States Congress, 51-1, Senate Mis. Doc. No. 81, Message from the President of the United States transmitting A general act, or conventional agreement... (Washington D.C. 1890).
3. For general historical reviews see: Richard P. Gilson, Samoa 1830-1900: The Politics of a Multi-Cultural Community (London and Melbourne 1970);
4. and Malama Meleisea, The Making of Modern Samoa: Traditional Authority and Colonial Administration in the Modern History of Western Samoa (Suva 1987).
5. United States Congress, 51-1, S. Mis. Doc. No. 81 (1890).
6. Samoa was partitioned along the 171st meridian into east and west by Germany and the US following formal acceptance of a Convention they concluded with Great Britain in 1899. With the outbreak of World War I, New Zealand administrative authority replaced Germany's claims over the western islands and continued under successive League of Nations and United Nations mandates until Western Samoa's independence in 1962. American Samoa's status as a territory of the US remains essentially unchanged since 1900. For a discussion of colonial administration of Samoa, east and west, see M. D. Olson, 'Administered autonomy, or orchestrating order and the process of self-governance in Samoa' (n.d.).
7. William Lee Chambers, 'Report of W. L. Chambers, United States Land Commissioner to Samoa', in United States Congress 53-3, Senate Ex. Doc. No. 97, Message from the President ... transmitting correspondence touching Samoan Affairs (Washington D.C. 1895), 459. The Commssion's estimate of 950,000 acres is approximately 194,500 acres more than current estimates.
8. Bazett M. Haggard, 'Report by way of Memorandum of the Working and Transactions of the Samoan Land Commission between May 24, 1891, and December 31, 1894', Great Britain, Foreign Office, Pacific Islands, Navigators, Confidential Prints (hereinafter GBCP), Correspondence July-Dec. 1894, FO 534/69, encl. 1 in No. 12, 14.
9. Henry C. Ide, 'Report of the Proceedings of the Supreme Court of Samoa [July 1, 1896 to] May 10, 1897', GBCP Correspondence Jan.-June 1897, FO 534/74, No. 61, Chief Justice Ide to the Marquess of Salisbury, 49-50.
10. Ide, 'Report ... 1897', 50. Earlier reports by Land Commissioners (e.g., Chambers and Haggard) indicate 135,300 acres were recommended for approval, a figure reproduced in Gilson, Samoa, 411
11. and cited by others (e.g., Meleisea, The Making of Modern Samoa, 44).
12. But it is based on estimates prior to completion of land surveys undertaken by the Commission and included double counting from conflicting claims and contested decisions of the Commission adjudicated by the Court (Ide, 'Report', 49). The figure represents 17% of current estimates of the total land area of the Samoan Islands.
13. Referring to rights to exclude others and generally exclusive rights to transfer or convey such rights. Freehold land is a form of landholding most often equated with 'private property'. In its formal-legal definition, it is land held as an estate in fee simple, referring to an inheritance of land, absolute and without limitation with respect to any particular class of heirs. The distinctions being made in the text pertain primarily to the rights to exclude others, or not to be excluded, and the rights to transfer or convey rignts associated with land, or not, the distinctions referring to 'private' and 'common' property, 'freehold' and 'customary' land, and alienable and inalienable rights, respectively.
14. See, e.g., Government of Western Samoa, Western Samoa's Fifth Development Plan 1985-1987 (Apia 1984), 16;
15. and Government of American Samoa, American Samoa Statistical Digest (Pagopago 1989).
16. The Government of American Samoa includes numbers based on registered deeds for 'church-owned lands' (2%) and 'individuallyowned land' (3.2%). 'Church-owned lands' include lands held under freehold title and those leased from 'communal family lands'. 'Individually-owned land' derives exclusively from 'communal family lands', as will be discussed in the text. For purposes of this paper, I refer to 'communal family lands' as 'customary lands', and all government controlled lands as 'state lands . The figures given in the text for American Samoa are adjusted according to the above and from the more conservative estimate of freehold land (1.3%) provided by Felix M. Keesing, Modern Samoa: Its Government and Changing Life (London 1934), 268, based on a reading of the Court Grants on file with the Government of American Samoa and listed in United States, Hearings before the Commisssion Appointed by the President of the United States ... (Washington D.C. 1931), 469-72.
17. By 'presumption' I mean a general condition inferred from logic. The strength of the laws themselves may suggest the nature of this dependence, as well as create additional conditions of dependence through the legal constraints placed upon alternative modes of state intervention within local contexts. The history of state-local relations in Samoa, principally the strength of asserted rights of local village political autonomy, only serves to reinforce this interpretation. See Olson, 'Administered autonomy'.
18. For purposes of this paper I include within my reference to the 'Court' the respective Land and Titles Commission under German and New Zealand administration, and the Land and Titles division of the High Court in American Samoa, each of which is a court of record with jurisdiction over land and title disputes. The Land and Titles Commission in Western Samoa became the 'Land and Titles Court' in 1937.
19. The state's regulation of matai title succession, however, has broader implications, of political and ecological effect, than can be adequately addressed in this paper. See M. D. Olson, 'Articulating custom: the politics and poetics of state and local transformation of nature and society in Samoa' (n.d.).
20. These conditions appear to be more general to the islands of the Pacific, where the patterns, extent, and strength of local control over customary land are generally comparable to Samoa. While customary land in the Pacific is clearly an artefact of colonial influence and the evolution of state-local relations, the effects of such influence and dynamics on land rights and state conceptions of customary law in the Pacific are not clear or well understood. See M. D. Olson, 'Development discourse and the politics of environmental ideologies in Samoa' (n.d.).
21. They were usually the same individuals. E.g., a 25,000 acre block of Samoa's prime agricultural land was purchased by the region's primary commercial firm 'chiefly in ammunition and arms', negotiated by their superintendent, who doubled as the German consul, the purchase facilitated by 'their possessing a manufactory of arms at Liege, in Belgium, whereby they were enabled to supply the belligerents at a very cheap rate with the material of war'. H. B. Sterndale, 'Memoranda ...On Some of the South Sea Islands', Appendix of the Journal of the House of Representatives (of New Zealand, hereinafter AJHR) (1874: 1A-3B), 3.
22. See also Gilson, Samoa, and Meleisea, The Making of Modern Samoa.
23. For examples of threats and outbreaks of civil war affecting the adjudication process, see the diplomatic correspondence in United States Congress 53-3, S. Ex. Doc. No. 97 (1895), 393-404.
24. Henry C Ide, 'Report of the proceedings of the Supreme Court of Samoa from the 1st of July, 1895 ... to the 1st day of January, 1896', GBCP Correspondence, Jan.-June 1896, FO 534/73, No. 18, Mr Ide to the Marquess of Salisbury, 31. Haggard, 'Report ... 1894'.
25. 'Samoan Land Commission Records' (hereinafter SLC) in Richard P. Gilson Papers, 33, Sydney, Mitchell Library (mf copy, Manoa, University of Hawaii, The Pacific Collection). Sect. 11, Art. IV, of the Berlin Act provided for the rejection of claims not satisfying the conditions specified in other sections of the article, but, additionally, 'Where the conveyance... was made upon the consideration of a sale of firearms or munitions of war, or ... intoxicating liquors ...'.
26. Ide, 'Report ... 1896', 3.
27. SLC, 3.
28. Letter, 28 Mar. 1894, to the British Foreign Office protesting (successfully) the Commission's intent to interpret Art. IV, Sect. 8 of the Final Act of Berlin as a prescriptive section, thus confirming claims concluded prior to the date of the Anglo-Samoan treaty, 'if purchased from Samoans in good faith, for a valuable consideration, in a regular and customary manner'. GBCP Correspondence Jan.-June 1894, FO 534/65, 69.
29. Haggard, 'Report ... 1894', 14.
30. From selected translated excerpts in sequence, SLC, 49-51.
31. 'Ili' may be interpreted as a common shortened version of the title 'Tauiliili', the title of a tootoo-alii, or orator-chief of high rank, of Neiafu, as the word 'Fai' is short for 'Tuaiaufa'i', 'Usu' for 'Momoemausu', and 'Folasa' for 'Folasaaitu'. But it is more likely that 'Ili' is shortened from 'Taatili', a mis-spelling of 'Taatiti' and a shortened version of 'Taatitimanaia', the missing ranking tulafale, or orator title, from the above list: earlier testimony of representatives of LeAlataua before the Land Commission specifies the name 'Taatili' as a member of the Alataua with Fai, Folasa, and Usu. The titles 'Taatili' and Tauiliili' are used in translated testimony presented in the text. The Alataua (or Lealataua) is a name for the district and the body of orators, including the four named and those they represent. See also M. D. Olson, 'The Spirits of Vaoto: Changing Political Authority, Ideology, and Environmental Practice in Samoa', PhD thesis, University of California (Berkeley 1995).
32. The text appears to represent Gilson's translations, but this is not clear. There is no word in the Samoan language that translates literally as 'owner', although Pratt's Grammar & Dictionary of the Samoan Language (Apia 1911), first pub. 1862, uses 'e ona' to mean 'to own' in the context of 'fanua', land. But this word and explanation is too convenient to be mere coincidence, particularly given the conceptions of ownership within Samoan societies even today.
33. Cf. Meleisea, The Making of Modern Samoa, 30. Assuming the term 'owner' or 'ownership' is a translation of the term pule in the testimony, substitution of the word 'owner' for pule changes the meaning of the term. And use of the Samoanised English word ona for owner, as appears in another translation in Gilson's papers, only tends to reinforce the foreign nature of the concept.
34. Current members of the Alataua of Savaii distinguish fanua from laueleele in terms of the differences between what is cultivable or supporting cultivated vegetation from the extent of soil, an essence best thought of as the more encompassing eartn, rock, or base of which the land or fanua is a part. Thus rights to the laueleele are more fundamental and encompassing rights. Rights to fanua refer more to control over its productive qualities necessary for the family's survival.
35. SLC, 35, emphases added. The title 'Tonumaipe'a' is the Papa title of the Alataua, a title of high honorifics modifying alii, or chiefly, status (e.g., a 'paramount chief'), first elevated to national prominence generations ago by Sauoaiga, whose name means 'coming-of-the-family'. The title is bestowed by the leading tulafale, or orators, of the Alataua named in this passage. Tupa'i was Sauoaiga's son. See Olson, 'The Spirits of Vaoto'.
36. Schultz, 'Samoan laws', 13-14.
37. C.C. Marsack, 'Notes on the practice of the court and the principles adopted in the hearing of cases affecting (1) Samoan matai titles; and (2) land held according to customs and usages of Western Samoa' (Mulinuu 1961), 22.
38. As argued by John Locke during the 17 th century, the principle of natural law expressed refers to the innate rights to property that derive from a mixing of human labour with nature. From John Locke's Second Treatise of Government, Ch. V, repr. in C.B. Macpherson (ed.), Property: Mainstream and Critical Positions (Toronto 1978).
39. Marsack, 'Notes', 22.
40. New Zealand, 'Western Samoa (Report of Royal Commission Concerning the Administration of)' AJHR (1928: 1A-4B), 183.
41. 'Land that anyone has received by inheritance, or as the gift of a third party, or has acquired with his own means - the payment consists in mats, pigs, etc., and lately also in money - is private property and subject to no family control.' E. Schultz, 'The Most Important Principles of Samoan Family Law...', trans. from German by Blanche Richmond,'with the consent of Dr. Schultz', Journal of the Polynesian Society, 20 (1911), 44 (emphasis added).
42. Keesing, Modern Samoa, 271.
43. Marsack, 'Notes', 25.
44. New Zealand, 'Territory of Western Samoa ... Report ... year ended 31st March, 1957', AJHR (1957: 1A-4), 54-5.
45. See Olson, 'Development discourse';
46. also Meleisea, The Making of Modern Samoa.
47. J. Tim O'Meara, 'Samoa: Customary Individualism', in Ron G. Crocombe (ed.), Land Tenure in the Pacific (Melbourne 1987), 74-113.
48. E.g., cfalso: A.P. Lutali and William J. Stewart, 'Legal aspects of the matai and land tenure system in the Territory of American Samoa', Samoan Pacific Law Journal, 2:2 (1974), 110-44;
49. Walter W. Tiffany, 'The role of the High Court in matai succession disputes in American Samoa the first seventy years', Samoan Pacific Law Journal, 5:1 (1979), 11-29;
50. his paper 'Applicability of Western judicial concepts to Polynesian land disputes: High Court use of the adverse possession principle in American Samoa', Samoan Pacific Law Journal, 7 (1981), 75-103;
51. S. W. Tiffany, 'The politics of land disputes in Western Samoa', Oceania, 1:8 (1980), 187;
52. her paper, 'The Land and Titles Court and the regulation of customary title successions and removals in Western Samoa' ,Journal of the Polynesian Society, 83 (1974);
53. A similar critique of the High Court, expressed in a series of High Court decisions between 1980 and 83, appears to have had little effect on the consistency of subsequent Court decisions or the Court's expressed conceptions of Samoan customary law. See below.
54. To which is added: 'If no person is qualified to inherit, the title shall revert to the family from which the title was derived'. Code of American Samoa (Fagatogo 1961), Title 9, sect. 9.0103.
55. United States Congress 51-1 S. Ex. Doc. 81 (1890).
56. 'the possession must be actual, visible, exclusive, hostile, and continued during the time necessary to create a bar under the statute of limitations, 2 Corpus Juris 50', as quoted in Salavea v. Ilaoa, 2 American Samoa Reports (hereinafter ASR) 15 (1938), 15, in one of the many such recitations in High Court decisions. In following the protocol of legal citations, and for greater clarity, the vol. no '2' is placed before the publication title, with the page no ('15') at which the ref. begins immediately following the title. The number after the date corresponds to the page of the passage cited.
57. Talo v. Poi, 2 ASR 9 (1938), 11-12.
58. This period was extended to 30 years or more by American Samoa's legislature in 1962. Title X, Code of American Samoa (Fagatogo 1961), sect. 10.0115.
59. A. M. Nobel, Codification of the Regulations and Orders for the Government of American Samoa (San Francisco 1921), section 3. The words 'American Samoa' were substituted for 'the islands of Tutuila and Manu'a' as first issued in 1900.
60. E.g., as attributed by the Court in Leuma v. Willis, 1 ASR 2d 48 (1980)
61. and in Tavai v. Reid, 2 ASR 2d 1 (1983);
62. by observers of the Court (e.g., Lutali and Stewart, 'Legal aspects';
63. and W. Tiffany, 'The role', and 'Applicability')
64. and by others citing the above, e.g. Mary Liana Stover, 'The Individualization of Land in American Samoa', PhD thesis, University of Hawaii (Manoa 1990).
65. Lauvao v. Misipaga, 1 ASR 205 (1909);
66. Amituana'i v. Uo, 1 ASR 241 (1911);
67. Atualua v. Pule, 1 ASR 253 (1911);
68. and Satele v. Afoa, HC No. 10-1932, 1 ASR 467 (n.d.).
69. Talala v. Logo, 1 ASR 166 (1907);
70. Tufaga v. Mativa, 1 ASR 184 (1909);
71. and Avegalio v. Suafoa, 1 ASR 475 (1933).
72. Vili v. Faiivae, HCTD No.1-1906, 1 ASR 138 (n.d.).
73. Lualemana v. Chiefs of Aitulagi 4 ASR 383 (1963). The citations, in this and the prior three notes, are not exhaustive, but suggest the general frequency of cases falling under the above classification.
74. Sapela v. Mageo, 1 ASR 223 (1910).
75. A prior decision, at HCTD No. 6-1906, 1 ASR 143 (n.d.), determined the controlling pule of Mageo as the matai of the Mageo family.
76. A third, at 1 ASR 124 (1905), empowered Mageo with the right to transfer a portion of the land to individuals other than Sepela.
77. Sapela v. Mageo, 1 ASR 223 (1910), 225.
78. Iulio v. Talamaivao, 1 ASR 217 (1910), 217-21.
79. See Leuma v. Willis, 1 ASR 2d 48 (1980);
80. Willis v. Faiivae, 10 ASR 2d 121 (1989) and at 17 ASR 2d 38 (1990);
81. and Taeleifi v. Willis, 21 ASR 2d 118 (1992).
82. Willis v. Fai'ivae 10 ASR 2d 121 (1989), 12.
83. Toomata v. People of Leone, 1 ASR 142 (1906), 143. It is not clear from the decision why Leoso is being singled out from the 'people of Leone'.
84. Falesau v. Tuitele, 1 ASR 298 (n.d.), 29.
85. Leuma v. Willis, 1 ASR 2d 48 (1980).
86. Reid v. Puailoa, 1 ASR 2d 85 (1983).
87. See Faaafe v. Sioeli, 1 ASR 21 (1938), which appears to be the first time the phrase 'individually-owned land' is used by the Morrow Court.
88. See Talo v. Poi, 2 ASR 9 (1938) and Talo v. Tavai, 2 ASR 63 (1938);
89. also Leatutufu v. Iulio, 2 ASR 328 (1948), and Soliai v. Lagafua, 2 ASR 436 (1949).
90. Tago v. Sami,2 ASR 285 (1947).
91. See also: Tuafili v. Taape,2 ASR 155 (1944)
92. and Tiumalu v. Lutu, 2 ASR 222 (1945), both decided by Wyche during Morrow's absence from Samoa.
93. E.g., Amituanai v. Tuli, 2 ASR 315 (1948).
94. Fesagaiga v. Seigafo, 3 ASR 26 (1951), 30, adding: 'Our practice of permitting the use of family tradition grows out of the necessities of the situation' (at 31). In this case the tradition was ofa gift of land for good deeds done 'some years before the Government was established in 1900'. In contrast, see Fe'a v. Sisipeni, 4 ASR 320 (1963), where Morrow rejects the claim of individual land rights from a gift for land cleared after 1902: 'Regulation prohibiting alienation of native land would make gift of land absolutely void'. He does not apply the same logic or restrictions in recognising similar conveyances, as soon discussed.
95. On the conception of natural law being applied, see Dennis Lloyd and M. D. A. Freeman, Lloyd's Introduction to Jurisprudence, 5th edn (London 1985);
96. William Blackstone, Commentaries on the laws of England (Oxford 1778);
97. and Henry Sumner Maine, Ancient Law (London 1861).
98. Fiailoa v. Saiselu, 2 ASR 129 (1941);
99. Vaimaona v. Mulitauaopele, 2 ASR 324 (1948);
100. Soliai v. Levu, 2 ASR 440 (1949);
101. Leasiolagi v. Fao, 2 ASR 451 (1949);
102. Letele family v. Lafoga, 2 ASR 466 (1949). The issues are discussed further in the text concerning rights of first occupation.
103. E.g., Teo v. Totoa, 2 ASR 243 (1947), adding: 'If the matai could convert one piece of communal land... he could convert all... If one matai could do this, all the matais... could do it and the people, matai's excepted, would have no place to live and grow their food....the matai...is... a sort of trustee and holds the land for the benefit of the members of the family. He cannot on his own authority deprive the family of its land' (at 246-7).
104. Ifopo v. Vaiao, 2 ASR 472 (1948). Morrow does not define what he means by 'consent'.
105. Atofau v. Tuufuli, 2 ASR 414 (1948), 417.
106. In Sione v. Tiualii, 3 ASR 66 (1953), Morrow permits the conveyance of land to an individual who gave money to the matai to settle prior court costs incurred in 1923.
107. The next year, in Mauga v. Soliai, 3 ASR 108 (1954), he denies a similar 'sale' on the grounds it is 'without the consent of the family', ruling that 'It is prohibited for any matai of a Samoan family who is, as such, in control of the communal family lands or any part therof, to alienate such family lands or any part therof to any person without the written approval of the Governor of American Samoa'. Morrow does not invoke this law, nor explain his rationale, when confirming similar conveyances of land.
108. See especially, Gi v. Taetafea, 2 ASR 401 (1948), where the Court notes that it 'takes judicial notice that some matais have, with consent of their family members, given communal land outright to certain family members';
109. and Amituanai v. Sauitufuga, 2 ASR 485 (1949).
110. But also, Fesagaiga v. Seigafo, 3 ASR 26 (1951), where Morrow writes with respect to a pre-1900 conveyance of land within a family: 'there was no claim whatsoever at the hearing that the land was communal family land, and no evidence to support any such claim' (at 28).
111. For examples of eviction granted for failure to perform tautua, or service, see: Fano v. Teleuli, 3 ASR 154 (1955);
112. Lutu family v. Petelo, 3 ASR 252 (1956);
113. Aumavae v. Tuitele, 3 ASR 341 (1958);
114. Vaimaona family v. Meafou, 3 ASR 228 (1956);
115. and Magalei v. Tago, 3 ASR 185 (1955), where the petition to evict was granted to the Chiefs of Faleniu due to conflict from the defendant's attempt to register land under individual title.
116. For examples of petition for eviction dismissed or denied see: Vaotuua family v. Puletele, 3 ASR 145 (1955);
117. Lagolau v. Talivaa, 3 ASR 201 (1956);
118. Fanene family v. Brown, 3 ASR 260 (1956), generally for an abrogation of matai responsibilities to licensees.
119. As in Satele v. Faga, 2 ASR 26 (1938).
120. See also Malaetia v. Misa, 3 ASR 137 (1954).
121. For relevant pre-Morrow decisions explaining the rule generally applied, see also: Levu v. Maluia, 1 ASR 197 (1909)
122. and Mailo v. Fuamaila, HC No. 6-1931, 1 ASR 449 (n.d.), regarding matai rights to reassign abandoned land;
123. and Pisa v. Solaita, 1 ASR 520 (1935), regarding matai rights to apportion land without terminating the matai's pule.
124. Toomata v. Vea, 2 ASR 564 (1950), 572.
125. Leasiolagi v. Fao, 2 ASR 451 (] 949), 453.
126. See also Vaimaona v. Mulitauaopele, 2 ASR 324 (1948);
127. Letele family v. Lafoga, 2 ASR 466 (1949);
128. As in Taatiatia v. Misi, 2 ASR 346 (1948), 347.
129. See also Togo v. Sami, 2 ASR 285 (1947).
130. Tavai v. Silao, 2 ASR 2d 1 (1983).
131. See also Atofa'i v. Fau, 2 ASR 2d 27 (1981).
132. 'In American Samoa, the family owns the land. A matai, selected by, and subject to removal by, the family, allots the land to family members who pay a type of compensation comparable to rent in the way of service to the matai - actually, to the family. In return the matai undertakes the protection and well-being of the family members. Such is the basic Samoan custom and tradition ... One might ask, "Just where does the concept of individually-owned land fit into the picture." It doesn't'. Tavai v. Silao, 2 ASR 2d 1 (1983), 2.
133. See Puailoa v. Estate of Lafofuaina, 11 ASR 2d 54 (1989), for a history of the case.
134. The intricacies are reminiscent of those discussed for Legaoa, including contested claims before the Supreme Court in 1895, and the subsequent confirmation in 1909 of the rights of Puailoa Vaiuli to the land by virtue of his successful objection to its alienation under Supreme Court Grant:' "it was the opinion of the Court that, were it not for the vigilance of Puailoa and Fanene in resisting the ... claim [before the Supreme Court] ... The entire property known as Malaeimi ... would have passed out of the control of native Samoans." ... Puailoa was therefore declared the owner of Malaeimi, or more precisely of "all Malaeimi not controlled by Fanene" ' (at 54) and citing Alo v. Pasene, 1 ASR 194 (1909), 195-7.
135. Puailoa v. Estate of Lagafuaina, 11 ASR 2d (1989), 73, the action dismissed with prejudice (at 80).
136. The case referred to, Nouata v. Pasene, LT No. 18-1950, heard and decided 9June 1931, was a matai title case. Rees interprets the consolidation of issues pertaining to matai title succession with those pertaining to rights to the land Malaeimi in Nouata. The trial Court, under Justice Miyamoto, and as cited by Rees, argued that land rights had not been fully adjudicated, thus the inapplicability of the doctrine of res judicata.
137. See Puailoa v. Estate of Lagafuaina, 19 ASR 2d 40 (1991), which referred to the decision in Puailoa and a motion for reconsideration at 17 ASR 2d 84 (1989) as 'masterpieces of lucidity and precision' (at 41).
138. See Reid v. Puailoa, 23 ASR 2d 101 (1993) and at 23 ASR 2d 144 (1993) for case history, including references to federal court review of Reid.
139. For an explanation of the radial division of land, from mountain ridges to the sea, by descent groups in Samoa prior to European arrivals, see M. D. Olson, 'Reconstructing landscapes: the social forest, nature and spirit-world in Samoa' ,Journal of the Polynesian Society, 106:1 (1997).
140. And see Patrick V. Kirch, The Evolution of the Polynesian Chiefdoms (Cambridge 1984), for the application of this principle throughout Polynesia, and as conceptualised within ancient Polynesian society.
141. The 'bush was likely not 'virgin' either, but had regenerated following its repeated clearance for agriculture over many generations of forest and people in Samoa. Olson, 'Reconstructing landscapes'.
142. E.g., cf Macpherson, Property.
143. These propositions are explored in Olson, 'Articulating custom'.