When the Supreme Court was first established in 1789, the United States was small enough that the justices could review decisions in lower courts by “riding circuit”—literally traveling by horse from courthouse to courthouse to review cases. Fortunately for the justices, Congress abolished the practice in the mid-nineteenth century: The modern United States now includes a small collection of island territories scattered throughout the Atlantic and Pacific Oceans—a long distance to travel even by modern standards.
The government of American Samoa, an unincorporated U.S. territory in the Pacific Ocean that sits roughly 7,000 miles from the Supreme Court building in D.C., is currently suing the federal government over a 2016 fishing regulation. American Samoa claims that a federal agency disregarded the turn-of-the-century agreement between local chiefs and President Theodore Roosevelt’s administration in which the islands became part of the United States. At issue is an awkward but important question: What, exactly, does the United States owe its territories?
The case, American Samoa v. National Marine Fisheries Service, centers on a dispute over where certain vessels can fish in the U.S. waters off of American Samoa. As an island community, fishing plays a central role in Samoan culture. Commercial fishing in American Samoa generally takes two forms: small-scale operations by indigenous fishers who operate out of catamarans, known as alia, and larger-scale ventures by commercial longliner vessels that can trawl deeper waters. Though alia are in decline since their late-twentieth century heyday, the American Samoan government hopes to revitalize the practice.
The United States acquired what would become American Samoa in the first decade of the twentieth century. Unlike many other American colonial possessions in the Pacific, American Samoa came under U.S. jurisdiction through a genuine legal agreement, not by conquest or annexation. Local Samoan chiefs signed what are known as the Deeds of Cession in 1900 and 1904 to transfer sovereignty. American representatives accepted them on the spot, and Congress later ratified the documents through a joint resolution in 1929.
“American Samoa is distinctive among the territories for its preservation of the traditional Samoan way of life, known as fa’a Samoa. Communal ownership of land is ‘the cornerstone’ of this traditional way of life,” the territory wrote in its brief, citing a previous ruling. “Under fa’a Samoa, the ‘aiga (extended families) ‘communally own virtually all Samoan land, [and] the matais [chiefs] have authority over which family members work what family land and where the nuclear families within the extended family will live.’”
The agency responsible for regulating fisheries in American waters is the National Marine Fisheries Service, or NMFS. In 2002, it issued regulations that banned larger vessels from fishing within 50 nautical miles of American Samoa. Allowing those vessels to operate closer to shore “could lead to gear conflicts, catch competition, and reduced opportunities for sustained fishery participation” by smaller fishers, the NMFS concluded while drafting the new rules. “Local fishermen and associated fishing communities depend on this fishery not only for food, income, and employment, but also for the preservation of their Samoan culture.”
By a decade later, fishing stocks had depleted outside the restricted area and larger vessel owners sought to move closer to shore. The NMFS began considering a new rule that would reduce the limit from 50 nautical miles to 12 nautical miles. Political and cultural leaders from American Samoa urged the agency not to adopt the new limit, citing Samoan cultural practices and the Deeds of Cession. The agency acknowledged their criticism of the proposal but said the restriction “no longer serves the conservation and management purposes for which it was developed.”
In 2016, the government of American Samoa filed a lawsuit against the NMFS, arguing that it violated federal regulatory procedures by disregarding the Deeds of Cession. Judge Leslie Kobayashi sided with the territory, ruling that the agency had not properly considered the Deeds during the process that led to the new rule. She accepted the island’s comparison between the promises laid out in the Deeds and promises given by the U.S. government to Native American tribes to preserve indigenous cultural practices, even when not explicitly described in treaties and agreements.
“The consideration of American Samoan cultural fishing practices in general is not enough,” Kobayashi wrote. “This Court has concluded that the Deeds of Cession require the United States to preserve American Samoan cultural fishing practices and that the deeds constitute ‘any other applicable law’ for purposes of [a federal fisheries law]. Thus, the 2016 [Large Vessel Prohibited Area] Rule should not have been adopted without a determination that the proposed rule was consistent with, inter alia, the Deeds of Cession.”
In September 2020, the Ninth Circuit Court of Appeals overturned Kobayashi’s ruling and sided with the federal government. The three-judge panel’s unpublished ruling was only three pages long. It bypassed most of Kobayashi’s analysis and instead held that because only a handful of alia were now commercially active, the NMFS had appropriately concluded that the new fishing limits were acceptable. As a result, the panel avoided the thornier question of whether the Deeds of Cession imposed any substantive limits or burdens on the U.S. government when crafting fishing regulations.
The American Samoan government then asked the Supreme Court to intervene in February. “The Deeds of Cession transferred sovereignty to the United States while protecting the customary rights and property of the people of American Samoa. For more than 120 years, the people of American Samoa and the United States have recognized the Deeds of Cession to require special consideration for the preservation of fa’a Samoa, the traditional Samoan way of life.” American Samoa asked the justices to confirm that the Deeds of Cession established “binding and enforceable obligations” upon the federal government.
Though indigenous peoples in U.S. territories generally do not fall under the court’s Indian law precedents, American Samoa invoked some of the broader principles behind them when making its case. “Beyond being merely incorrect, the Ninth Circuit’s decision was also out of line with this Court’s recognition that the United States is obligated to keep its promises to its indigenous inhabitants,” American Samoa told the court. “While there might once have been ambiguity about whether changed circumstances or the passage of time could relieve the United States of its obligations, that question has been definitively resolved in favor of keeping promises.”
To support that point, American Samoa cited the Supreme Court’s decision last term in McGirt v. Oklahoma. The Supreme Court’s landmark decision in that case recognized the continued existence of the Muscogee (Creek) Nation’s reservation in Oklahoma after roughly a century of non-observance by state and federal officials. Writing for the court, Justice Neil Gorsuch rejected the notion that the government’s historical promises to indigenous communities could not be erased by time or convenience. “None of these moves would be permitted in any other area of statutory interpretation, and there is no reason why they should be permitted here,” he wrote. “That would be the rule of the strong, not the rule of law.”
The Justice Department urged the Supreme Court not to take up the case. It attacked American Samoa’s petition on two fronts. First, it disputed the claim that the federal government had disregarded its obligations under the Deeds of Cession in any way, noting that Congress had incorporated them into federal law in 1929. “The court’s narrow, unpublished decision rests on NMFS’s factual conclusion that narrowing the LVPA would not have a significant impact on alia fishing and therefore would not affect any rights even arguably protected by the cessions,” the Justice Department argued in its brief for the justices.
At the same time, the Justice Department argued that American Samoa didn’t have the legal standing necessary to bring the lawsuit. American Samoa had previously argued that it could sue under the parens patriae doctrine, which allows states and territories to sue on behalf of their citizens in some circumstances. Neither the district court nor the Ninth Circuit disagreed. But the Justice Department argued that the doctrine only extended to lawsuits brought by states and territories against private actors, not against the federal government. Moreover, the department argued, territories faced additional challenges when suing the federal government because they “[owe] their existence” to the federal government in a way that states do not.
American Samoa warned that the federal government was threatening an amicable status quo. “It is no exaggeration to state that more than a century’s worth of history rests on the validity of the Deeds of Cession,” American Samoa argued in its brief. The islands’ government noted that other U.S. territories have taken different paths: the Philippines obtained full independence, Puerto Rico pursued a formal framework for self-governance from Congress, and Palau opted for a form of semi-independence that left some policy-making matters in U.S. hands. “American Samoa, on the other hand, has remained an unincorporated, unorganized territory of the United States,” it told the court. “The decision to maintain this status is based, in large part, on the success of the framework established by the Deeds of Cession.”
The Supreme Court rarely wades into legal disputes surrounding U.S. territories aside from cases that delve into Puerto Rican governance. In recent years, for instance, the justices have turned down the chance to resolve a split in the lower courts over whether American Samoans are entitled to birthright U.S. citizenship. That aversion may not bode well for American Samoa’s petition in this case. But their refusal to hear the case could also invite broader debates and litigation over the islands’ legal and constitutional status going forward. And that, in turn, could raise more questions about whether the United States really means what it says.