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Suaalii-Sauni, Tamasailau --- ""It's in your bones!": Samoan custom and discourses of certainty" [2011] NZYbkNZJur 10; (2010-2011) 13-14 Yearbook of New Zealand Jurisprudence 70

Last Updated: 25 April 2015




i. introduction

In thinking about my contribution to this conversation on custom, law and the State, I decided to offer a reflective piece that seeks to deliberately probe the discourses of certainty that both strengthen and undermine assertions of customary knowledge in contemporary Samoan spaces. Let me begin by sharing a brief anecdote.

In September 2011 I invited a young up and coming Samoan-English-New Zealand film director, Marina Alofagia McCartney, from Auckland, to give a public lecture for our Vaaomanu Pasifika Unit’s seminar series.1 I wanted her to talk about her experience engaging with the New Zealand film industry at this early stage in her career and I wanted her to speak about what I can only imagine would have been an absolutely amazing experience participating in the UNESCO supported Ser un Ser Humano (To be a Human Being) 2011 film project hosted by the EICTV2 Film School in Cuba.3 She was one of only six student film directors chosen from six different continents around the world to produce their own short film that would then be edited and woven together to produce one film to illustrate the textured colourfulness of our indigenous cultures and humanity. For their individual stories each of the six students would use six universal themes – culture, sustenance, faith, hope, fear and love – to make their points.

For her contribution Marina chose to highlight the story of her indigenous Samoan community. She used a New Zealand Palagi film crew and the story was shot in Savaii, Samoa. Among the many intellectual, personal and film-

1 The Unit is part of the School of Social and Cultural Studies, Faculty of Humanities and Social Sciences, Victoria University of Wellington, in New Zealand. I am indebted to Marina for sharing her story with us and for sharing with me some of the details associated with the saying “It’s in your bones” that frames this chapter.

2 La Escuela Internacional de Cine y TV de San Antonio de los Baños [International Film and Television School of San Antonio de los Baños].

3 The film premiered at the third festival of Invisible Cinema in Bilbao, Spain in September

2011 and at a UNESCO-hosted premier in Paris in October 2011. For more information

on the film see online at: (accessed 22

September 2011).

specific insights warmly shared at this public lecture was a statement she raised in passing. The statement was made by Marina’s maternal Samoan aunt to Marina when Marina questioned her own ability to perform the taupou4 role in an upcoming Samoan ava ceremony. As an afakasi5 child, raised outside of Samoa with little to no knowledge of the Samoan language and traditions, Marina was reticent. I sympathise with Marina’s reticence given that the ava ceremony in question was to be part of the Auckland Samoan community’s official rituals of welcome that would precede the live broadcast of then Hon Prime Minister Helen Clark’s historic public apology to Samoa made in June


Impatient with Marina’s reticence, her aunt crossly and emphatically retorted (in the way that feisty Samoan aunts do, complete with that strong Samoan accent): “It’s in your bones!” It was to say: “Why do you fret? You are Samoan. Just do it!”

Marina has never forgotten her aunt’s words. Whenever she thinks about what is Samoan or what being Samoan might mean, they ring in her mind. After hearing the story behind the words, they also now ring in mine. I love the feistiness, the certainty and no-nonsense attitude that these words demand. Sometimes we get caught up by our insecurities that we are paralysed to move forward, to try something new. We are often told that we learn from our mistakes. But if we don’t take chances we aren’t likely to make mistakes. Marina’s aunt’s words seem to give comfort to the exercise of just trying. But then I got curious about what it is that allows Marina’s aunt to say these words and to say them with such certainty. I wondered about the politics of naming and ethnic belonging that her words seemed to be both taunting and assuming . I wondered if she was saying that only those who had Samoan ancestry could consider themselves Samoan and worthy of being a taupou in an ava ceremony. I also thought about how these words might have impacted on Marina at the moment they were uttered, whether they made her doubly

4 Taupou refers traditionally to a village belle. The term refers to a female who has the right to a post (pou) in a meeting with people of rank. She is traditionally the head of the daughters of the village or aualuma group. She represents the aualuma in ceremonial events for the village. She usually sits at the ava bowl and is responsible for mixing the ava liquid during the ava ceremony ready for the tautu to serve. See TTTE Tui Atua’s paper “Sufiga o le tuaoi: negotiating boundaries: from Beethoven to Tupac, the Pope to the Dalai Lama” Keynote Address to the Samoa II Conference, National University of Samoa Le Papaigalagala Campus, Vaivase, Samoa, 5 July 2011.

5 The word afakasi is a Samoan transliteration of the English word half-caste, used by Samoans to refer to the children of Samoan and non-Samoan (usually European) parents.

6 See online at:, for copy of her apology speech.

self-conscious and anxious of her perceived inadequacies or not. And, even if they did, whether she would have been able to publicly express this self- consciousness or anxiety. Then I felt troubled.

Marina’s aunt’s words may well have been uttered because she just genuinely wanted Marina to carry out the role, genuinely believed Marina to be legitimately entitled to do so and genuinely could not see the problem. In fact, in sharing with Marina about this experience it was quite clear that she did what my paternal grandmother would always advise: “take in the good and throw away the bad”. But in probing her aunt’s words I was reminded of scenarios in my own family whereby my Samoan aunts would tell us “New Zealand-born Samoan kids” how stupid we were in no uncertain terms if we didn’t carry the ie toga (fine mat) in the “proper” way during ceremonial rituals. The impact of their words is more obviously negative than that of Marina’s aunt but the assumptions about knowing or not knowing – that is, the discourses of certainty deployed – are the same. Such utterances are, as Foucauldian theorists have said, not a consequence of an isolated moment but of a governmentality that involves “the serial histories of the practices of the self with those of the practices of government” surfacing and coming together.7

I’ve held onto these words “It’s in your bones” and have used them to frame and tone my contribution to this conversation about Samoan custom, law and the State. I invoke them, not because I wish to impose a particular reading of them, but because I wish to challenge us to think more deeply about the discourses of certainty that they and other statements of “the customary” can invoke.


It is perhaps helpful at this point to offer a brief explanation of my use of the phrase “discourses of certainty”. Jon Amundson and colleagues8 speak of temptations of power and certainty in situations where those given “expert” status assert their knowledge as certain, true and authentic in a way that privileges themselves and their knowledge and silences, disempowers and/ or subjugates other or different knowledge or experiences by rendering or

7 See M Foucault in M Dean Critical and Effective Histories: Foucault’s Methods and Historical Sociology (Routledge, London & New York, 1994) at 208. See also M Dean Governmentality: Power and Rule in Modern Society (Sage, London, 1999).

8 J Amundson, K Stewart and V LaNae “Temptations of Power and Certainty” (1993)19

Journal of Marital Therapy 2 at 111.

reproducing them as naïve, unqualified, irrelevant, wrong, or untrue.9 Foucault has suggested that discourses are structuring principles of society and human behaviour, said and not-said. He states that they are principles that are:10

... secretly based on an “already said” ... this “already said” is not merely a phrase that has already been spoken, or a text that has already been written, but a “never said”, an incorporeal discourse, a voice as silent as a breath, a writing that is merely hollow of its own mark. It is supposed therefore that everything that is formulated in discourse was already articulated in that semi-silence that precedes it, which continues to run obstinately beneath it, but which it covers and silences. The manifest discourse, therefore, is really no more than the repressive presence of what it does not say; and this “not said” is a hollow that undermines from within all that is said.

The power and pervasiveness of Foucault’s use of discourse to describe such structuring principles as custom for example is its probing curiosity of what is said in the not-said and of how when we realise and say what is not-said that in our saying we are forced to admit to the temptations of power and certainty that lurk within. The phrase “It’s in your bones” embodies discourses of certainty in that it quells, silences or makes intolerable and un-said (at least out loud) any suggestions of illegitimacy, insecurity, disbelief or uncertainty about one’s heritage. While there is a place for certainty in the sense that fairness in resolving disputes requires the clear and transparent application of laws or customs, critical legal,11 feminist12 and postcolonial indigenous theorists13 have been quick to point out that such clarity and transparency depends heavily on the lens through which one interprets the law or the custom. In the realms of the State and the courts, temptations of power and certainty are rife.

9 Amundson et al. (above) draw on a Foucauldian reading of discourse and his use of subjugated knowledges. On the question of subjugating knowledges Foucault (in G Burchell, C Gordon and P Miller (eds) The Foucault Effect: Studies in Governmentality with Two Lectures by and an Interview with Michel Foucault, Harvester Wheatsheal, Hertfordshire,

1991, at 95) states, “it is not a question of imposing law on men, but of disposing things: that is to say, of employing tactics rather than laws, and even of using laws themselves as tactics – to arrange things in such a way that, through a certain number of means, such and such ends may be achieved”.

10 M Foucault The Archaeology of Knowledge (Translated by AM Sheridan Smith; Routledge,

London & New York, 2002) at 27-28.

11 See for example Duncan Kennedy “Political Power and Cultural Subordination: a Case for Affirmative Action in Legal Academia” in After Identity: A Reader in Law and Culture (Routledge, New York, 1995).

12 See for example Patricia Williams “The obliging shell: An informal essay on formal equal

opportunity” in After Identity, above n 11.

13 See for example Moana Jackson “Criminality and the exclusion of Maori” (1990) 20

VUWLR 2 at 23.

I turn now to an examination of what has been said about Samoan custom in

two kinds of legal texts: first, the preface of Samoa’s Constitution and of the

1990 Village Fono Act; and, second, formal litigant submissions to the Samoa Land and Titles Court. These texts offer some insight into the different ways in which discourses of certainty surrounding Samoan custom are deployed by the Samoan State, by its most powerful judicial body, ie the Land and Titles Court, and by the subjects/consumers of both, ie the litigants. Here I suggest that to assert or invoke Samoan custom one not only has to name and give voice to it, but also to justify or evidence its “truth” to the satisfaction of those who define and preside over it.

iii. Voicing sAmoAn custom in LAw

The Constitution of the Independent State of Samoa (formerly Western

Samoa14) is supreme law in Samoa. Its persistence as supreme law since

1962 is evidence of its value to the current Samoan government and by their democratic election to the people of Samoa.15 In its preface the Constitution specifically states, among other things, that Samoa is an Independent State based on Christian principles and Samoan custom and traditions. Here custom is named alongside tradition:

WHEREAS sovereignty over the Universe belongs to the Omnipresent God alone, and the authority to be exercised by the people of Western Samoa within the limits prescribed by His commandments is a sacred heritage ... the Leaders of Western Samoa have declared that Western Samoa should be an Independent State based on Christian principles and Samoan custom and tradition. (Emphasis added.)

Bearing in mind Foucault’s point about the un-said and Jacques Derrida’s demurring statement about translation, where he says, “I don’t know how, or in how many languages, you can translate this [French] word lécher when you wish to say that one language licks another, like a flame or a caress”,16 it seemed to me instructive to make visible in this analysis for comparative and interpretive purposes the Samoan language version of this clause of the Constitution. It reads in Samoan:

14 1960 Constitution of the Independent State of Western Samoa. The name “Western Samoa”

was changed to “Samoa” by the 1997 Constitution Amendment Act (No. 2) No.15.

15 I use the term democracy here in the sense employed by Asofou So’o in his examination of what he calls the uneasy alliance between democracy and custom in Samoa. See A So’o (ed) Changes in the faamatai: O suiga i le faamatai (National University of Samoa, Apia,


16 J Derrida, “What is a ‘Relevant’ Translation” (2001) (Translated by Lawrence Venuti) 27

Critical Inquiry 2 at 175.

I LE SUAFA PAIA O LE ATUA, LE E ONA LE MALOSI UMA LAVA, LE E ALOFA E FAAVAVAU, ONA o le pule aoao i le Lalolagi e i ai lea i le Atua na o Ia, e afio i mea uma lava ma o le pulega e faaaogaina e tagata o Samoa i totonu o tuaoi na faasinoina mai i Ana Tulafono o se tofi paia tuufaasolo; ONA ua faaalia e Taitai o Samoa le tatau ona avea Samoa ma Malo Tutoatasi e faavaeina i luga o talitonuga faa-Kerisiano ma tu ma aganuu a Samoa. (Emphasis added.)

The Samoan language terms used in the Samoan version to describe “sacred heritage” and “Samoan custom and tradition” are of particular analytical relevance. The terms in Samoan are named or voiced as “tofi paia tuufaasolo” (sacred heritage) and “tu ma aganuu a Samoa” (Samoan custom and traditions). “Tuufaasolo” on its own is a verb which literally means to pass something on from one to another, implicitly from one generation to another. Unlike the English term “heritage”, “tuufaasolo” requires a preceding term, such as tofi paia (meaning sacred designation) or mau (meaning belief or story) to mark what it is that is being inherited or passed on.17 In this sense the term tuufaasolo offers the Samoan reader the idea that something considered custom or heritage is something fluid, it moves, if not in form then in substance, from one generation to the next. Tu ma aganuu is the more common Samoan translation for the English idea of customs and traditions: tu referring to the image of standing, standing on a firm foundation, implicit in the idea of foundational principles; aganuu literally meaning “the ways (aga)18 of a village (nuu)”. These terms indicate a less fluid, more fixed, understanding of Samoan customs and traditions, and locate the authority for defining, monitoring and enforcing them squarely within the village polity.

17 Tui Atua in explaining Samoan stories of creation stated that these were “tala sa fai ma mau tuufaasolo a aiga ma nuu, o se vaega o ata faalemafaufau ma muagagana sa limataitaiina ai le tofa sa’ili ma le faautaga alualu mamao a matua o Samoa i aso ua mavae. O se vaega o le olaga na ola ai tagata, ae le o se mea na ona fatu ma tuumamao ma tagata...” [family and village stories that were passed on from one generation to the next, provided the metaphors and sayings that guided the search for wisdom and vision of our Samoan forebears. They derived from lived history and personal experience rather than something distant and created by the imagination] (English translation by Tui Atua, personal communication). Tamari Mulitalo-Cheung makes reference to this Samoan passage in her American Samoa Community Samoa course titled “Samoan mythology”, SAM204 (Section 01), Fall 2010. She sources the paper titled “O se suega faalumaga i Tu ma Aga, Tala o le Vavau ma le Tala Faasolopito e faamautuina ai le Filemu ma Pulega Lelei i Aiga, Nuu ma Ekalesia” by Tui Atua. See website: See also Tui Atua’s collection of Samoan language writings in his book Talanoaga na loma ma Ga’opo’a (Government Printery & Continuing & Community Education Programme, Alafua Campus, University of the South Pacific, Apia, 2008).

18 See B Shore, Sala’ ilua: A Samoan Mystery (Columbia University Press, New York, 1982)

for an interesting discussion on the concept “aga”.

In Samoa the term aganuu is asserted by those who wish to make reference to general custom principles across villages, districts or within the nation. It is differentiated from the term aga-i-fanua which refers to customs, conventions or usages unique to a particular village and its people.19 Tui Atua writes that:20

aganuu is a rule or law of general application to Samoa/Samoans. Agaifanua [sic] is a rule or law which specifically applies to a family or a village and its origins in history and genealogy. ... Aganuu allows for a common reference across villages, districts and the nation. Agaifanua recognises the uniqueness of each village, its history and genealogy, and so creates tua’oi or boundaries within and without.

Cluny and Laavasa Macpherson cite the oft-quoted saying, “E tofu le nuu ma le aganuu” and translate this to mean “For each village its own conventions”.21

This underscores the idea that while Samoan customs as general principles derive from the village context, when carried out each village has rules or practices that are idiosyncratic or particular to them. The boundary between

19 The literal translation of the Samoan term fanua is land in English.

20 TTTE Tui Atua “Samoan jurisprudence and the Samoan Lands and Titles Court: The Perspective of a Litigant” in T Suaalii-Sauni, I Tuagalu, TN Kirifi-Alai and N Fuamatu (eds) Su’esu’e Manogi: In Search of Fragrance: Tui Atua Tupua Tamasese Ta’isi and the Samoan Indigenous Reference (Apia, Samoa, 2009) 52 at159.

21 See C Macpherson and L Macpherson Samoan Medical Belief and Practice (Auckland University Press, Auckland, 1990) at 7. This saying highlights a blur or slippage in the use of the term “aganuu”. If “aganuu” in this phrase is referring to customs between nations, then technically its usage here makes sense. However, if “aganuu” is referring to the customs of a village then technically the term for the phrase should be “aga-i-fanua”.

one village and the next is protected by custom by the principle of tua’oi22 which assumes a concept of rights whereby the rights and authorities of one village will not encroach on those of another. In the modern context as villagers interact more with other villagers and the outside world, the boundaries or tua’oi of their custom and traditions or “aganuu” (or more technically aga- i-fanua) may shift. Such shifts are slow, however.

Use of the word “nuu” within “aganuu” is interesting in that it privileges the village or nuu as the source and model of certainty for what is or is not Samoan culture or custom. Asofou So’o writes that a nuu “is an independent political entity comprising a number of aiga [families] and their houses and lands”.23

These aiga are usually connected genealogically both within the village and to aiga in other villages. The identity of the aiga, he suggests, is “closely linked to the village”, through connections to one or more matai (chiefly) titles of the village, which are recorded in village faalupega (constitutions). The governing council of the village, or village fono, comprise the matai of aiga, which make decisions on behalf of the village and is the body that adjudicates breaches of customary norms at the village level. As a significant decision-making body in the village the village fono (or fono a matai ma faipule) assumes an expert status that is afforded significant power and resources. This status can help towards maintaining social order by making certain one’s roles and responsibilities in the village. However, it is also susceptible to the temptations of power/certainty. Aganuu, as general rules and norms common to and set

22 Tui Atua offers useful discussion of the concept tua’oi in his paper “E le o se timu na to, o le ua e afua mai Manu’a: a message of love from fanauga” Keynote Address delivered at Professor James Ritchie Memorial Lecture Series, University of Waikato, Hamilton, New Zealand, 23 February 2011. In brief he states that it “refers to those boundaries that arise as a consequence of determining one’s rights (aia) and authority (pule) in relation to those of another. In Samoa the concept tuaoi is associated mainly with determining the boundaries between peoples, between peoples and their lands or environment, and between peoples and their Gods. Historically, these boundaries or tuaoi were recorded and outlined in faalupega, ie village and/or district constitutions, most of which cite the honorifics of the village or district, implying their origins and political structure. [W]hile tuaoi may be informed by the broader principles of aganuu ...the body of laws and customs most relevant to determining tuaoi at the village level are known as aga-i-fanua. ... The presumption is that tuaoi is best defined, evaluated and monitored by those who have to live directly with them for ultimately any issues over the rights and authorities associated with an inheritance are issues for those who, as heirs, have a direct and legitimate claim. ... Aga-i-fanua principles are rules and customs designed to address the specific on-the-ground needs and desires of the village and/or district. These principles evolve over time, taking into account new contexts and imperatives but always recognising that those who are ‘of the land’ are most intimately tied to the land and to its care and therefore best placed to determine its current and future boundaries. Implicit in both aganuu and aga-i-fanua are the notions of tofi and faasinomaga [one’s core identity and inheritance as a Samoan]” (ibid, at 6-7).

23 See So’o, above n 15, at.17.

down by villages, is strengthened or weakened depending on how well the nuu as a collective, and as the political, social and cultural model, can allay these temptations.

Evidence of the Samoan State’s deference to village governance is the passing of the 1990 Village Fono Act, which is still law. Key words within the preface to the Act are as follows: “AN ACT to validate and empower the exercise of power and authority by Village Fono in accordance with the custom and usage of their villages.”24 There are Samoan customs and traditions that exist beyond or outside the village polity. Families for example may have their own customs and traditions separate to, although usually not in competition with, those of the village. Questioning the decision-making authority of the village fono can destabilise the nuu, risking village chaos. But certainty in this case does not, however, necessarily translate into transparency.

Family customs or traditions, practices and beliefs that fall into conflict with a village fono decree can be marginalised and silenced through an inflexible or legalistic enforcement of village custom. In 1993, three years after the Village Fono Act became law, the Samoan family conventions of Nuutai Fatiala Mafulu challenged the Samoan village custom of the village fono of Lona, Fagaloa, in Upolu, and his challenge was met with death. When Nuutai, a Samoan entrepreneur, returned to his village Lona to live after living in New Zealand for many years, he refused to live according to what his village fono declared to be their tu ma aganuu. He was shot dead in front of his wife and children for his defiance.25 By suggesting, among other things, that he had every right to live in the village because it was “in his bones” but was not bound to village custom, Nuutai’s voice posed an untenable threat. In the minds of the chiefs or matai who decided on behalf of the village fono to silence Nuutai’s voice, such a voice couldn’t be covered over; it had to be literally silenced forever.

This year (2011) the Samoan government decided to review the 1990 Village Fono Act. As part of this review the reform committee held consultations with key persons from across the country. Because of time and resource constraints the committee understandably restricted participation numbers, which meant having to assert attendance criteria. According to Va’a F Aga of Vaimauga, the criteria imposed by the committee excluded him from voicing his concerns at the consultations. He did not meet the criterion of being a pulenuu (village mayor) and was not one of the three chosen by his pulenuu to attend. In Va’a’s determination to have his say he took the trouble of voicing his opinions in Samoa’s national newspaper The Samoan Observer, which reaches not only

24 See preface of the Act.

25 See U Aiavao “Death in the Village” (Nov. 1993) Islands Business Pacific 20.

Samoans in Samoa but any Samoan who can access the internet outside of Samoa. In his commentary Va’a highlights two kinds of nuu or village. He points out that the reform committee must take notice of the difference between nuu mavae (traditional villages), which he defines as those that have faalupega aloaia (traditional village constitutions) and nuu fou (new villages) that have no traditional village constitutions and where most of the residents live in residences on freehold rather than customary land. In asserting the existence of these two kinds of nuu, he points out that the traditional concept of nuu shifts to accommodate new contexts, a shift that demands a change in the way we might conceive of nuu today and by implication of aganuu. But while Va’a perhaps inadvertently unsettled dominant constructions of nuu by publicly noting the existence of an alternative construct, the purpose for his opinion was not to endorse the new construct but to realign it with the old. Nuu fou he points out are fraught with “lawlessness” and requires a governing body that can control this, something which the reform committee should consider in terms of perhaps extending the scope of the powers and authorities of the courts to impose a fono a matai ma faipule (literally the council of chiefs and village mayor, which is also the village fono) of sorts, similar to that in nuu mavae, in these nuu fou. He states:26

It is very well for the Alii and Faipule of an established village (nuu mavae) to do a ruling on a family/individual on customary land, that would stand. But for a family/individual on his/her freehold land, it is hard. For a group of matai to call themselves o Alii ma Faipule o se nuu fou [sic] ..., it would be hard to evict an unruly family from their freehold [land]. ... To add, if not already, a provision for the courts to support/endorse the Alii & Faipule order of eviction on an unruly family/individual after a couple of warnings and not for the courts to rule against the Alii and Faipule decision in a petition against the A&F over rule order. This will strengthen the Alii & Faipule control on their respective villages and over the lawlessness of their residents.

The chiefly system that Va’a alludes to is known as the faamatai and is central to Samoan custom.27 The faamatai is today protected and increasingly governed by the Samoa Land and Titles Court. The Court has become the contemporary bastion of Samoan custom and traditions. Within the faamatai are three elements considered by Aiono Fanaafi to be core to one’s faasinomaga (one’s core identity and inheritance as a Samoan): first, matai titles (suafa);

26 Samoan Observer, online at iew=article&id=35555:village-fono-act&catid=52:letters-to-the-editor&Itemid=61 (last accessed 23 October 2011).

27 While a lot of authors have made reference to the faamatai, two books have focused specifically on it. See So’o (above n 15) and S Vaai Samoa Faamatai and the Rule of Law (National University of Samoa, 1999).

second, lands (fanua) that belong to or are governed by the suafa;28 and, third, the Samoan language (le gagana Samoa).29 There is little dispute over the significance of these elements to the faamatai and perhaps even to aga- i-fanua/aganuu (village custom) or faasamoa (Samoan culture). However, connecting the idea of being Samoan to chiefly titles, land and language sets off red lights for those like Marina who feel it in their bones that they are Samoan even if they can’t say it in Samoan, have never lived in Samoa and hold no chiefly title.30

In probing further the contested meanings associated with Samoan custom, unpacking the relationship between language, lands and titles via what litigants say (and do not say) about suli (rightful heir) and pule is useful. I turn now to examine how two litigants have voiced their respective claims of suli and/or pule over lands and titles in the Samoa Land and Titles Court.

iV. Voicing sAmoAn custom in LAnd And

titLes court submissions

There are many Samoan customary principles recognised by the Samoa Land and Titles Court in determining Samoan custom.31 I only wish to focus here on two: suli and pule. According to Fanaafi Aiono-Le Tagaloa (Aiono Fanaafi’s daughter) they are the two most litigated Samoan custom issues in the Land and Titles Court since its beginnings.32 The two concepts are intertwined. Pule is described by Fanaafi as relating to “ownership” and “authority”. In relation

28 The question of whether a title belongs to or is governed by land (ie its customs) or vice versa is interesting. Certainly, lands and titles according to Samoan custom or aganuu are inextricably linked. Aiono Fanaafi suggests that lands (fanua) belong to/are governed by the titles (suafa). According to Tui Atua (above, n 20) indigenous Samoan cosmology infers divinity in both land and people. Titles bestow leadership status and are given to people who have an ancestral connection to the families who originally settled on the lands associated with the title and/or who have demonstrated faithful and loving service to this/these same family/families. Land and titles are believed sacred. Perhaps the answer is that both belong or govern each other.

29 Aiono Fanaafi calls this first cornerstone (le poutu toa muamua) igoamatai (matai or chiefly titles); the second (le poutu lona lua) she refers to as lands designated to the authority of the matai title (“o eleele ma fanua e pulea e le igoa matai, le igoa po o le suafa, ae le o le tagata o lo o umia le igoamatai”); and the third (le poutu lona tolu) is the Samoan language (le gagana Samoa) (O le Faasinomaga: Le Tagata ma lona Faasinomaga. Lamepa Press, Alufa, 1997) at 2-4.

30 See Roine Lealaiauloto’s (1995) brief article for the Mental Health News, where she laments: “I am Samoan, but can Samoans accept me?”

31 See Fanaafi Aiono-Le Tagaloa “‘Sua le Lea – toto le Ata’: The Land and Titles Court of Samoa 1903–2008: Amid Continuity and Change” PhD Thesis, Faculty of Law, University of Otago, Dunedin, 2009 and Vaai (above n 27).

32 Ibid.

to customary land, she argues that pule is “the authority to allocate land, to dispose of it, to exclude people from it, to use, and to allow or end use of it”.33 And she recognises that ownership is more in line with the concept of having trusteeship than an alienable right. Pule is therefore about ownership and authority exercised in trust and vested in the matai title or office.34 Those who are bestowed matai titles are those whose claims to the title are considered legitimate. These people argue a suli status with pule rights and obligations. In this sense suli is central to the faamatai and inextricably linked to the pule of a matai.

When a suli has been bestowed a chiefly title and is formally recognised as a matai, the whole machinery of rules and norms associated with his or her pule as titleholder is put into play. As with any jurisprudential system there is a struggle between the technocrats who get obsessed with the technicalities of rules and legalese, the philosophers who seek to remind of the proper place of ideals and virtues and then the pragmatists who want workable systems that can progress the business of the day in as efficient and efficacious a way as possible. All three voices can be found in the submissions of Samoan litigants to the Land and Titles Court, both through what they say and what they don’t say. What I am interested in here is not to evidence the existence of pule and suli as customary principles for this is well-documented elsewhere35 and is rather obvious, instead I seek to highlight how litigants say (or do not say) with certainty what pule or suli are and the techniques or tactics used, as Foucault would say,36 to hear some voices over others.37

In the interests of space I explore only two narrative excerpts, one each from two different case examples. One case highlights an example of how suli has been argued and the other offers an example of how pule has been asserted.

The first case involves a family chiefly title “Leulusoo” to which my paternal grandmother is connected. The text of the Court submission I offer was drafted by my father. It basically asserts that a current titleholder is not suli. The submission was drafted by my father on behalf of his side of the Sa Leulusoo family of Saleaumua, in Upolu, finalised on 20 December 2003 and submitted

33 Ibid, at 177.

34 See Tui Atua (above n 20) and Vaai (above n 27).

35 See F Aiono-Le Tagaloa thesis (above n 31), A So’o Democracy and Custom in Samoa: An Uneasy Alliance (ISP Publications, University of the South Pacific, Suva, 2008) and Vaai (above n 27).

36 See Foucault in Burchell et al., above n 9.

37 Alison Jones “The Limits of Cross-Cultural Dialogue: Pedagogy, Desire and Absolution in the Classroom” (1999) 49 Educational Theory 3 299 at 307 in relation to cross-cultural educational dialogue makes the point that the “voice heard” is more important than the “speaking voice”. This is just as applicable in the courtroom.

to the Court just before Christmas. In this submission my father and his co- litigants were appealing against the decision of the Court delivered a couple of months earlier (October 2003) where it upheld the bestowal of the Leulusoo title on one particular incumbent. In making their appeal they raised the issue of suli. In offering reasons for their appeal my father and his co-litigants set up their plea as follows. I offer the most pertinent parts for our purposes in Samoan and English.38

1. Lau Afioga ma lo’u faaaloalo tele o le faaiuga matua’i le talafeagai lea, ua faia faamalosi e aunoa ma le malilie iai o suli moni o lenei suafa, lea ua tauaaoina mai e Alii o le Faamasinoga e uiga i lenei Suafa. [Your Honour, the decision of the Court is untenable, it does not have the support of suli moni or the true heirs of the title].

2. O le pepa numera 4 po o le itulau 4 (fa) o le faaiuga o loo faapea mai le numera 2 puipui. O nofo taluai nei a Paipa ma Faaiviivi e tupuga mai ia Foliano ma ua oo nei i le taimi o Aula’i, e sese mamao i Siamani aua fo’i o le nofo a Paipa e le o se nofo a suli o Foliano. O le nofo o suli o Pu’e lea e itu faatasi ma Aula’i aua foi o le tautinoga manino a Aula’i, o Pu’e o le uso o Aula’i. O gafa a le itu a Tago Osooso o loo molimau mai ai Teofilo Luamanu ma Anetelea Luamanu o latou o suli moni o Pu’e le uso o Aula’i. O tautinoga a le itu tetee numera lua lea e ta’ita’i ai Tago Osooso, o latou o suli o Pu’e. ...O lona uiga o le faaiuga LK 286 aso 14/5/1914 e toatele tuaa o loo soifua mai pea, e oo mai i le taimi nei, o nisi e lei lava ona maliliu atu sa silasila ma silafia uma le nofo a Leulusoo Manaia o le atalii o Pu’e. [The decision at page 4(2) says that the last two titleholders were from Paipa and Faaiviivi heirs, and now it is the time for the heirs of Foliano. The bestowal on the heir of Pu’e is from the same side as Aula’i, because as testified to by Aula’i, Pu’e is the brother of Aula’i. The genealogy of Tago Osooso that Teofilo Luamanu and Anetelea Luamanu testified to, stating that they are true heirs of Pu’e, points out that Pu’e is the heir of Aula’i. The testimony of the respondents for party number two, led by Tago Osooso, states that they are heirs of Pu’e. Therefore as noted in the Court decision LK 286, 14/5/1914, there are many who have passed on and are still alive today who have testified and know that Leulusoo Manaia is the son of Pu’e].

3. E faamaonia lea itu i tusi e lua a Tafua Faausuusu na ave ia Kovana Kaisalika aso 30 Me 1914 ma le isi i le aso 11 Iuni 1914, e talosagaina ai le Kovana ina ia tofia aloaia Manaia o le atalii o Pu’e e suafa i le Leulusoo... [...Leuluso’o Manaia is the son of Pu’e according to letters sent to the Governor on 30 May 1914 and 11 June 1914 by Tafua Faausuusu, high chief of Saleaumua]....

38 Personal records. The English language translation offered to the court has been refined for

economy of space. Most of the English language used in the English original is kept.

As readers of Samoan and English will note, the movement between the Samoan original and English translation is not very smooth and really does only lick the surface, but it is possible from what is said in both the English and Samoan versions to appreciate the point that significant space is given in Land and Titles Court submissions to asserting (both explicitly and implicitly) the rightness of the gafa or genealogy of those claiming suli status. In this excerpt the litigants use the term suli moni39 to emphasise that heirs must be, in their view, true heirs. And, true heirs are those who can show connection to a common ancestor. For litigants such as my father and his cousins the strength of their gafa lies in presenting as much corroborating evidence as possible. Two certified copies of two handwritten letters written by Tafua, a recognised high chief title of Saleaumua, to the German Governor Schultz asserting that Manaia is the son of Pu’e, are gold. In putting together their submission, litigants like my father and uncles seek to compose their response by maximising the strengths of their evidence and marginalising any issues that may raise doubt. These are standard tactics for addressing/manoeuvring judicial focus/concern.

Arguing the issue of suli in court is thus in large part about arguing the authenticity of one’s genealogical record or gafa and using one’s wherewithal to craft a mau or tala (ie story/appeal submission) that can support that. Without a credible gafa (one that has corroborating evidence), the chances of sustaining a claim of suli in the Land and Titles Court is severely limited. In many ways the situation is like that of making scientific claims, whereby claims (hypotheses) are put forward and promoted as “true” (insofar as the evidence permits) until proven otherwise. This case offers an example of how knowledge of gafa is power. The power of that gafa and the knowledge associated with it is undermined, however, as soon as any of the corroborating evidence asserted to prove the truth or authenticity of the gafa is challenged and that challenge upheld by the Court. This begs the question: how does the Court assess the authenticity of a gafa and its corroborating evidence? After reading Fanaafi Aiono-Le Tagaloa’s doctoral research, where she analyses

460 Land and Titles Court case decisions from 1903 to 2008, the answer is

perhaps that, at present, it’s hard to tell.40

My final point with regards to this analysis of the issue of suli is the principle of felafolafoa’i (or taking turns) alluded to by the Court in this Leulusoo case. It is generally accepted that the principle was and is practised by families as a

39 Sometimes the terms suli moni are used interchangeably with the terms suli faavae or original (faavae) heirs.

40 Fanaafi says: “...due to the nature of the reasoning usually employed in the Court’s decisions, it is often hard to know how and why the Court determines how custom should be applied to the facts to resolve a particular dispute” (above n 27 at 199).

fair approach to resolving multiple claims to matai titles, especially titles of high rank.41 In responding to this my father and his co-litigants told the Court that this principle was not appropriate in this case. The Court, they believed, was misinformed as to the incumbent’s genealogy; he was not from the lineage that should now have its rightful turn, therefore the Court’s finding in favour of the incumbent was more than inappropriate; it was wrong. The basis of this assertion is of course the truth of their version of the Leulusoo gafa. In the courtroom (both in their oral and written submissions) litigants perceive that they must present a case or argument that is in no doubt about the rightness of their version (even if only on the balance of probabilities).

The tenor of the excerpt from my father’s formal appeal submission contrasts markedly with that of the excerpt to be examined next from a typewritten letter recording content from two conversations. This letter was written by Tui Atua to the Court registrar and submitted to the Court as supporting evidence for two cases that went to Court questioning his pule in 2003 and 2010. 42 One conversation was between Tui Atua, Poloai Kaleopa and Poloai Mikaele’s representative Tafafuna’i Viliamu; the other between Tui Atua and Tupolesava. Poloai Kaleopa and Tafafuna’i were present during the conversation between Tui Atua and Tupolesava. Tui Atua, Poloai and Tupolesava are key characters in the 2003 and 2010 cases mentioned earlier.

As a papa title Tui Atua is of significant historical and cultural value, both to the district of Atua and to Samoa as a whole. Asofou So’o writes that: “The original holders of these [papa] titles are traced to the god Tagaloa-a-lagi. From oral traditions, these titles appear to be among the oldest in Samoa.”43 The excerpt from the letter for examination here relates to the pule of the Tui Atua over the lands/residence called Mulinuu ma Sepolataemo (M&S), situated in the village of Lufilufi, in Upolu. Let me turn now to the specifics of the letter.

On 23 August 1989, Tui Atua Tupua Tamasese Efi as the current Tui Atua titleholder submitted to the Land and Titles Court registrar for filing in the Court records a letter which recorded and summarised the two conversations noted already. Both conversations were directly related to each other and fundamentally about the issue of the pule of the Tui Atua over Mulinuu ma Sepolataemo.44 The letter, in the absence of a verbatim transcript, was offered not only as evidence of the fact of an event, ie that the conversation happened at such and such a time involving so and so, but also of Tui Atua’s contention

41 See So’o (above n 35).

42 See Samoa Land and Titles Court cases (2003) LC 10481 P1 and (2010) LC 11443.

43 Ibid at 2. Tagaloa-a-lagi is believed in Samoan mythology to be the progenitor of human life in Samoa.

44 I am grateful to Tui Atua for access to this letter and for offering me explanation of the events surrounding these conversations.

that although issues of pule are always high drama because of its potential impact on people’s livelihoods, those exercising pule, especially paramount titleholders, have a real responsibility not only to be certain and transparent about the basis of their pule, but also mindful of the message of the saying “e le tu se tamaaiga i se uaniu” (literally, a tamaaiga or highly ranked chief does not stand alone on the top of a coconut tree), a saying to which I will refer again later. Let me turn now to relevant excerpts from the letter, which are as follows (English translations mine):

Ina ua vaivai le gasegase o Muagututi’a Vili, ona savalia lea o a’u e Poloai Kaleopa ma Tafafuna’i Viliamu e fai ma sui o Poloai Mikaele, e momoli mai se mana’o o le toeaina o Muagututi’a Vili ia te au. [When Muagututi’a Vili was on his death bed, Poloai Kaleopa and Tafafuna’i Viliamu (who came on behalf of Poloai Mikaele) came to see me to pass on the dying wish of Muagututi’a Vili (who wished to be buried at M&S).]

O la’u fesili muamua ia Poloai ma Tafafuna’i, e faaupuina faapea: O le mataupu lea o lo ua lua oo mai ai e fia tanu le tino o le toeaina i le eleele o Mulinuu ma Sepolataemo, e faigofie, faigata – fuafua i le tali o le fesili lenei. “O se logo po o se faanoi?” [My first question to Poloai and Tafafuna’i was worded like so: the matter that you have brought with you today, that Muagututia wishes to be buried at M&S, can be straightforward or difficult depending on your answer to my question, which is: have you come to let me know or are you asking me for permission?]

Tali Poloai: O le talosaga e faanoi ai lou finagalo, ona o le pule atoatoa o loo ia te oe. [Poloai responded: We have come to ask your permission, we acknowledge that full authority is vested with you.]

Ona ou faapea atu lea: Ua faigofie le mataupu. Ae le mafai ona avatua so lua tali vagana ua ma feutaga’i ma Tupolesava. Ma, o le a alu le tama e ‘a’ami Tupo.45 [I replied: Okay, in that case the issue is straightforward. But I cannot give you an answer until I speak with Tupolesava. I will send someone to fetch him.]

Ma taunuu Tupo ona ou faaalia lea i ai o le mataupu: “E ui lava ona o le pule o loo ia te a’u tusa ai ma le iuga o le Faamasinoga, ae le mafai ona ou soona fai se mea, e faigata lo ta va nonofo. I le o lea, e le mafai ona ou ave se tali ia Lufilufi ae ta te le’i feutaga’i”. Saunoa mai Tupo, “e le loto e tanu le tino o Muagututi’a Vili i le eleele o Mulinuu ma Sepolataemo”. Ona ou fai atu lea: “Tupo, ia tuutuu mamao lau tofa. Faatoa tula’i mai a lea o se mea faapenei talu mai le nofoaiga a oe ma a’u. Ma, e faamasinoina ai ta’ua e Lufilufi ma le atunuu, po o se tofa alofa, se tofa faamagalo, po o se tofa fai aiga lelei e tausi ai Mulinuu ma Sepolataemo. Ua afu le soifua o Muagututi’a Vili i Mulinuu ma Sepolataemo. Afai e ave lona tino maliu e tanu i se isi eleele e fuatia oe

45 Tupo is a shortened version of the name Tupolesava.

ma a’u”. Na i’u ina tuu’aulafo Tupo. [When Tupo arrived, we discussed the matter. I said to him: “Even though I have the pule or authority over M&S as affirmed by the courts, I cannot just assert it without first conversing with you. Because of this I have said to Lufilufi that I will give them an answer only after we have talked. Tupo replied that he did not want Muagututia Vili to be buried at M&S. I paused then said: “Tupo, we have to think carefully and be mindful of doing what is wise and best for the long term. This is the first time that something like this has been brought to us. What we do here will be scrutinised by Lufilufi and Samoa. It will be asked whether what we did was reflective of the wisdom of love, the wisdom of forgiveness and the wisdom of protecting and nurturing what is best for M&S. This man has given long service to the family and to M&S. If we were to deny him a burial on the land he has served faithfully all his life, would that be a loving thing to do? Would we be unduly harsh?” After some thought, Tupo changed his mind.]

Na ou faaalia: “Afai o le a le lagi o le toeaina, ia faasalalau i le suafa o Tupolesava ma Poloai ma Poloai.” Na faapea ona faia.” [I then said that when Muagututia passes away, the funeral notice should be publicised under the directives of Tupolesava, Poloai and Poloai. This is what happened].

The above excerpt identifies that two ranked matai titles of Lufilufi – Poloai and Tupolesava – affirmed that the Tui Atua had pule over Mulinuu ma Sepolataemo. This is evident not only by what was said out loud: “...O le talosaga e faanoi ai lou finagalo, ona o le pule atoatoa o loo ia te oe. [... We have come to ask your permission, we acknowledge that full authority is vested with you]” (my emphasis), but also by the not-said, at least in the above summary record submitted to the Court. What was not said was the “already- said” fact known to Poloai and Tupolesava that no member of Muagututia Vili’s family has been buried at Mulinuu ma Sepolataemo and this was according to the wishes of key predecessors. How they were to proceed on deciding whether or not to follow the custom set down by these predecessors would depend on how pule was to now be negotiated between Tui Atua, Poloai and Tupolesava. After establishing the views of the two Poloai on the Tui Atua’s pule, the summary record then states that the Tui Atua in discussion with Tupolesava explored what ought to be the right thing to do from their side of things. In consulting with Tupolesava the Tui Atua is saying (without saying it) that although in custom and in law as the Tui Atua he has the pule to decide the matter, there is due process within this pule which advises of the need to consult with key family members before making a decision. In this situation Tupolesava was one such family member. This due process principle was designed to facilitate rather than hinder good family and village relations. In a paper delivered to the Mātāhauariki Institute’s Symposium on Polynesian Customary Law held in Auckland in 2005, titled “Resident, Residence and Residency in Samoan custom”, Tui Atua makes this point and makes it in

relation to his pule as titleholder over Mulinuu ma Sepolataemo. In a bold move the Tui Atua exposes himself in this paper by also asserting the difficulties of enforcing pule when one does not and has not lived in the residence or on the lands over which pule is claimed. He states:46

There is a common saying in Samoan: e le tu se Tamaaiga i se uaniu, literally meaning a Tamaaiga stands or falls because of the bonds of love and loyalty he is able to generate amongst his people, his aiga. If he is resident the requisite bonding obviously emerges more easily than if he is not. This is a powerful caveat to the pule of Tamaaiga and brings to the fore, in contemporary Samoan times, the significance of the customary and historical reference points of creation (or residency), genealogy (or resident) and place (or residence).

The issue of absentee titleholders is part of the un-said in the conversations between Tui Atua, Poloai and Tupolesava. It is understandable that it would not want to be said in a transcript to the Court. For our purposes here it does raise an interesting question, however, about whether or not pule ought to contain a requirement of a titleholder being in residence during his or her residency. In asking Tupolesava to consider the long and faithful service of Muagututia Vili to Mulinuu ma Sepolataemo, one could surmise that Tui Atua was probably mindful of the injustice of refusing such a request given both the long and faithful service of Muagututia Vili to Mulinuu ma Sepolataemo on the one hand, and his own long-term absenteeism from the same on the other. In relation to the concept of pule and how it applies in this case the Tui Atua says (without expressly saying it) that pule – and by implication custom – is governed by considerations of justice that must take into fair account the context of the day as well as the virtues of legal or customary principles such as precedent. The character of pule painted by this case is of a principle that demands power and certainty, the negative aspects of which can only be tempered by the vigilant embrace of discourses of empowerment and self-reflexivity.47

Inexplicable decisions, whether made by the courts or by matai, generate an uncertainty that can undermine the bigger project of justice. Explicable decisions that encourage clear and transparent rules and practices are more likely to evoke faith in the fairness of the decision and the decision-maker. This is a strength of discourses of certainty. But there are some decisions or claims that assert a certainty where such certainty actually does not exist. In

46 See Tui Atua “Resident, Residence and Residency in Samoan Custom” in R Benton (ed) Conversing with the Ancestors: Concepts and Institutions in Polynesian Customary Law (Te Mātāhauariki Institute, University of Waikato, 2006) at 76.

47 R Keesing “Creating the Past: Custom and Identity in the Contemporary Pacific” (1989) 1

Contemporary Pacific 1&2 19 talks about the need for astute scepticism and self-reflexivity

in order to overcome the temptations of certainty that bedevil scholarship on custom.

these cases, which would include some but certainly not all claims of pule and suli status, the discourses of certainty at play can operate more to confound or subjugate than to empower. It is these situations that must be watched for carefully and where the technologies of justice must be sophisticated enough to pick up on and to then appropriately deal with. But doubt or uncertainty are not always negative, in fact they can be empowering and productive; they can be, as my friend Sister Vitolia says, exuberantly life-affirming.48 In this sense our inquiries into custom are exercises in the sensitive but rigorous scrutiny of certainty, engaged in for the greater and relentless goal of searching for justice. In our probing we would be wise to remember, that such a search involves not only a search for the wisdom of what was said, but also of what was not said, and of the wisdom of not saying what perhaps ought to be said.

V. concLusion

One of the huge difficulties associated with probing the said and unsaid in court cases, especially those involving public figures, in small places like Samoa where only a handful of titles hold significant pull at the national level, is that sometimes what is brought to light is politically uncomfortable. For any leader the easy option is to suspend critical judgment or maintain silence on any matter that even just smells politically contentious. Samoan custom as a human construct can never be totally immune to human manipulations. The subtleties of meaning and the problems of translation mean that sometimes we can only really touch the surface of understanding the myriad ways in which Samoan custom is voiced, not-voiced, heard and mis-heard, understood and mis-understood. But that is not to say that we cannot or should not try to delve beneath the surfaces to get at what might be true or real, to get at what connects or disconnects, or to what drives things such as custom and holds us to it. Custom may well be an invention that is reinvented and even circumvented, for good and bad, as Roger Keesing has pointed out, but unpacking it is, at least in the Samoan context, as aganuu or aga-i-fanua, our closest connection towards working out, as honestly and as openly as possible, what and why we say and believe something to be, as Marina’s Aunt puts it, just “in your bones”!


48 See V Mo’a “Le Aso ma le Taeao – the Day and the Hour: Life or demise of “Whispers and Vanities?”, in T Suaalii-Sauni et al (eds) Whispers and Vanities: Negotiating indigenous and religious cultures in the Pacific (publisher to be confirmed,forthcoming).

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