Pago Pago, AMERICAN SAMOA — With the Swains Island House member on a 30-day suspension, pending an apology to the House members for his unruly behavior — tearing his own shirt, loud outbursts including threats, and refusing to listen to the House Speaker — it was only a matter of time before people asked out loud what has generally been questions that many of the Territory’s residents have just shrugged off: Why is there a Swains Island House seat — who does it represent? Is the Swains Island House seat unconstitutional?

The recent confirmation hearing for the Chief Election Officer/ Commissioner for the Territory, Dr. Uiagalelei Lealofi, brought the issue to the fore, not as a constitutional question, but as a question of how do you implement a voting process for a House seat in which its constituency does not live in the place it represents?

During his confirmation hearing, one of the questions asked by Senate President Tuaolo Manaia Fruean, was if he had considered a voting process for the Swains Island faipule now that the delegate has been granted voting rights in the Fono.

In response, the Acting Election Commissioner stated that the law stipulates that the Election Office is responsible for implementing a voting process for Swains Island, which requires staff members to travel to the island to implement and monitor the process.

However, as no one currently resides on Swains Island, he has been notified that the voting process will be carried out at the Election Office, although he noted that this is not mentioned in the law.

Uiagalelei said his management and legal advisor have recommended that he seek a solution for this issue at a higher level. However, he emphasized that the Election Office's responsibilities and duties mandated by law cannot be carried out because there is no one residing on Swains Island.

Tuaolo replied that the Swains Island representative (faipule) was elected by consensus of Swains constituents. However, now that the Swains delegate has been given the right to vote in the House of Representatives, he should also be selected by popular vote like all other faipule.

Senator Tuana'itau Malaki Togiola supported Tuaolo's statement about the need to establish a voting process for the Swains delegate, saying that as a part Swains Islander, he and other Swains Island descendants select the Swains delegate and also get to vote in their ‘home/ residence’ districts.

Uiagalelei replied that the law is not clear on this matter and that they need guidance from the Fono.

He stated that the law clearly requires candidates to reside in the district where they are running, and they are uncertain about what kind of voting process should be adopted in this case.

In a letter to the editor signed “Fia Iloa”, a Samoa News reader said they had “been monitoring, with keen interest, the discussion on the Swains delegate pursuit of the right to vote in the House of Representatives.” They asked the question: Is the Swains Island Seat in the House of Representatives Unconstitutional?

The letter writer points to Swains Island unique history — but states that “the legitimacy of this seat has come under increasing scrutiny, particularly in light of recent constitutional changes and the fact that Swains Island has had no residents for the past 20 years.

“The question before us now is whether maintaining this seat violates constitutional principles of representation and democratic governance.”

“The issue is worthy of a debate,” the Fia Iloa states.

Fia Iloa offers three possible reforms to the question and states that “the people of American Samoa must consider whether maintaining this seat aligns with democratic values and constitutional principles.”

The three possible reforms include:

1  Abolishing the Swains Island seat — If there are no residents, there is no constituency to represent. Eliminating the seat would correct this imbalance.
2  Merging the Swains seat with another district – This would allow those with ties to Swains Island to still have a voice without an exclusive, unjustified seat.
3  Requiring general election voting – If the Swains Island seat is to remain, its representative should be elected through a fair and open electoral process, rather than a limited selection method.

In conclusion, Fia Iloa states that “at its core, democracy is about representation and legitimacy.

“The continued existence of a Swains Island representative, despite the lack of residents and the island’s private ownership, violates both.”

“Now is the time for American Samoa to address this constitutional inconsistency and ensure that all seats in its legislature are democratically justified. Ignoring this issue risks undermining the very principles upon which representative government stands.”

Samoa News should point out that one of the reasons there is no one currently living on Swains Island, according to their faipule, is that the Fono and ASG has not provided the island with the necessary funding to maintain their infrastructure, including consistent transportation to and from the island.

BACKGROUND

The following are excerpts from the text of Fia Iloa’s LTE to Samoa News:

A Seat Without a Constituency

Swains Island has been uninhabited for almost two decades, yet a representative continues to be appointed to the House of Representatives.

This raises fundamental concerns about representation and the very nature of democratic legitimacy. Every other representative in the House is elected by popular vote from a defined district with an active constituency. In contrast, the Swains Island representative is selected by adult "residents" of an island that, for all practical purposes, has no permanent residents.

The Cambridge Dictionary defines ‘resident’ as “a person who lives or has their home in a place.” How can an elected official truly represent a people who do not exist in any meaningful, residential sense?

A Questionable Election Process

The method of selecting the Swains Island representative differs significantly from the process applied to other legislative seats. Unlike representatives who must win a competitive election through the general vote, the Swains seat is chosen through a process involving a small, exclusive group of individuals who claim ties to the island. This selective process appears to contradict the fundamental democratic principle of broad-based electoral participation.

Moreover, during the 2022 Constitutional Convention, the delegates approved granting the Swains Island delegate the right to vote within the House legislative proceedings. That amendment was endorsed by the Secretary of Interior in 2024. Prior to that, the Swains delegate could only Chair and vote in committees.

The fact that this representative holds voting authority while lacking a true electoral constituency raises questions about fairness, equal representation, and constitutional validity.

Private Ownership and Legislative Authority

Adding another layer of complexity is the fact that Swains Island is privately owned by the Jennings family. Unlike other districts in American Samoa, which are defined by village and district public governance structures, Swains Island is essentially an extension of a privately held estate. This raises an alarming precedent — does private ownership of land justify exclusive legislative representation? If so, what prevents other private landowners from seeking a similar status? The notion that a private family could effectively control a seat in the House undermines the integrity of representative government.

Constitutional and Legal Implications

Under American Samoa’s Constitution, representation in the legislature is meant to reflect the will of the people. If a district no longer has a population, can it still justifiably hold a legislative seat? Given that representation should be tied to the existence of an electorate, the Swains Island seat may now be unconstitutional.

Additionally, American Samoa’s political structure operates within the broader framework of U.S. constitutional principles, including equal representation and democratic legitimacy. While American Samoa has its own governing system, it remains subject to federal oversight, and maintaining an unelected legislative seat may ultimately invite legal challenges on constitutional grounds.