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ing program by negotiating a diverse compensation plan provid-

ing for health cae, ditrbution to atoll for loca determation of needs, and a mecha for diect adjudication of an claim. Ths plan has been strctued to operate permanentl, and, at a base
investment of $150 mion, to generate sucient proceeds to ad-

dress al identifed needs. In ratg the Agreement, Congress
also recognized that should changed 'cicctances arse which
. would prevent the progr from

ii

fuctionig as planed, Congres_

would need to consider possible additional fuding"'(App. 341342).

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The aai Cour's determation that it is premature to
resolve: appellants' Tucker Act contentions is thUs wholly correct.

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The President, the Congress, the MarhaI Islands governent, and the peoples of i:e Marhal Isands, who approved the clai
settlement, have detemned that the Section 177 Agreement
---

provides an ~ffective and adequate remedy to address, on a long:. , -~---term-basis;-aI-coiieque-irc~rs-ofth-e-te-stìng program. AS lle Clãim -'-;--

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concerr, if they ever are at al, ca be determed only in light of the ultite performance of the plan, whether investment goals for regeneration of fundig continue to be met, local atoll use of
funds,. and the numbir of individual clai presented and proved
before the trbunal 4 ,

Gpurt found, that plan must. be alowed to operate. Tucker Act

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The crtical point is that, unike the Dames & Moore settlement or any other alternative clai compensation noted by appellants, the Section 177 Agreement is structued and fianced to

operate "in perpetuty to ;;ddress unique needs. There is no basis
to presume that the Ageement, to which two governents have.

commtted substantial resources, wi fai to provide a just and ade-

. quate remedy. As the Oai Cour correctly held, Congress bas
recognized and protected appellants' rig;hts, and the compe.nsa- 46 Appellants asert (Br. 49) tht they need not present their clais to the .

Tnbunal even should a cour constre Arcle XI to preserve a Tucker Act
remedy. That argument is incorrect. Dames &: Moore, 453 U.S. at 688. As stated
in Rucke/shaus v. Monsanto, 467 U.S. at 1018 n.21: "Exaustion of the statutoiy

remedy is ,necesar to determe the extent of the takg that has occurred. To
the extent that the operation of the statute provides compensation, nb takg has

occurred and (there is) no clai agait the Governent."
45

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tion program ¡Dust be alowed to "ru its coure." 13 CI. Ct. at 689 (App,23).

IV. TH REUBUC OF TH MAHA ISIAD.S
HA VALLY ESPOUSED AN SETTD ITS NATIONALS' CLAS
Aß appellants acknowledge (Br. 21, 54), al of their remaning ~ssues on appeal are moot if the MarhaI Islands has proper~

ly espoused. and setted appellts' clai at international law.
Thus, thè Court need not consider whether Ar~le xn is condi-

tioned on Judicial detenntion of vald espousal, or reach
appellants' clai that Arcle XI, absent vald espousal, is uncon-

stitutional. As dicussed below~ the Marshal Islands has properly espoused and extguhed. the clai of its nationals under
long-standig priciples of internationallaw~

A. The espousal meets requiements of the, rule of con--- --

. ----tinuous-nationality.
IIternational ageements settg clai by national of one

---

--------

state agait the governent of another state "ar~ establihed international practice reflectig traditional interntional theo::." L..

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,

Henk, Foreign Affairs and the Constitin 262, cited in Dames"

& Moore v. Regan, 453 U.S. at 679. Where a sovereign espoUses
clai of. its ciazens, the claiantstate neither represents its
citizens individualy nor simply assert its citiens' clai. Rather,'
espousal is employed at the discetion of

the clait governent,

often in light of its effect upon foreign relations. Once a government decides to espouse clai resultig from the conduct of
..

another state, it may settle clai in whatever maner it deems most effective, determg how the claim wi be presented, what
amount, if any, wi be sought from the sovereign concerned, and .

whether the clai wi be compromied or released. Kelso,
Espo~al: Its Use in International Law, 1 Ar. J. of rnternatl and

Compo Law 233,234 (1982).47 . . .
47 A5 stated in Henk, Foreign Affairs and the Constiton at 262-263, the .

United States "has someties diposed of the clais of its citins without their
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,

without exclusive regard q:msent, or even without constatian with them, usualy for their interests, as distiguished from those of the nation as a whole.
46

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Whe no longer contestig the sovereignty of the Marshal Islands goverment, appellants contend (Br. 55-56) that their governent's ~spousal violates the rule of continuous nationalty.
That doctrie provides that a sovereign may espouse a clai on

behaI of its nationals against another state only where the
claimant was a national of the espousing sovereign from the date
the clai arose unti the date the esousg sovereign presents it. 1. Browne, Prciples of Public Interational Law, 481-482 (3rd ed.

, 1979) (App. 1567-1568). TTe "essence" of the rule is the "desire

to prevent the indidual choosing a powerfl protectig state by
a shi of nationality." Id. at 482.. As the Oaim Court'recogned,
the rule.

prevents "abuses that otherwe might result by convera clai agency on behal of injured
libera natuaItion law

sion of a strong nation into claiants, who avaied themselves of

for

the purose of procug espouS of their clai." 13 a. Ct. at

---------------- ----'---Thanationale-plaiy-has-no-appllcation-here:-Ag-dicuse-d--"--"-, below, because the Republic of the Marhal Islands is the recognied succesor to the Trut :Terrtory Governent, appellants

685-686 (App. 19-20).

have riot changed their nationalty with the meang of the continuous nationalty rule. Moreover, whie appellants helped to es-

tablih a new governent and ther~by changed citienship after
their clai arose, they certaiy did not do so for puroses of

secug the protection of a powerf state to promote satisfaction

of their clai through espousal
Appellants were intiaIy inabitats of a terrtory under,

mitar, admtrtion, and then, purant to Arcle 11 of the
Trusteeship Ageemei;t (App. 277), citiens of the Trut Ter-

ritory, òver the period durg which their clai arose. 13 O. Ct.
at 677 (App. 11). Thus, appellants were not citiens of 'any particuar State, but rather, as the United Nations Charerrecognzed

as to trt terrtories, of a terrtory .'whose peoples have not yet

attaied a fu-mease of self-governent." U.N. Charter, Ar.
73 (App."272). As the Oai Cour recogned, the RepubHc of the Marhal Islands gradualy assuxed sovereign authority over the Marhal Islands from the early days of the Trusteeship unti,

through constitutional self-governent, it became the legaly recogned succes:or to the former Trut Terrtory Governent

(13 Cl.Ct. 677, App.11): .
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Since the 1960's, the RM has been statu nascendi, a governent evolvig into. statehood, through a series of admtrative actions by the United States and the.
UNC under the Truteeship Agreement. * * * RMl's

capacity for self-governent, and its competency to
enter a status of free asociation with the United States. has been recogned by the UNC, by both House of
Congress, and by the President.48

With the entr into force, of the Compact, citiZens of the Trust

Terrtory residig in the Marhal Islands becae citiens of the
Republic of the Marhal Islánds.
The evolution of the politica statu achieved by the inhabitants of the Marhal

Islands though theIIown proces of self-

determation does not prevent their new .govermient from
espousing their clai. Appellants neither relocated from their
place of residence nor underwent natualtion in another state.
The sovereign authority offfeirace of resiâence simply cnange-d

gradualy from the Trut Terrtory Governent to the Marhal
Islands Governent. As the successor governent, whose
sovereignty appellants do not chaenge, the Republic of

the Mar-

shal ISlands had full authority to espouse and settle clai. Antolok II (App.1414-141S). See 1. Brownlie at 482 (App. 1568).49
48 Appellants inrrectly

state (Br. 56) that the Qai Court "recognd" that
law pricipleS, "(t)he facts

"the traditional contiuity of nationalty doctrie alone is sucient to bar the

clai." The cour stated that, whie appellants' anys of the contiuity ot
nationaty rte was a correct dion of international

of these caes however, do not accrd with the rationale for the docte.. 13 a.

Ct. at 686 (App. 20): Indeed the cour fu recgnd the emergig natue of
the Marshal Islands governent, but expresly deced to reolve the esousal question in dismiing the complaits on other grounds. ¡d. at 677, 686 (App. ii,
.20).

49 Although the Maha Isands Governent had not attaied its presnt
statu under the Compact at the tie it negotiated the Section 177 Agreement, it
ratied the. Ageement after its

conclusion. Under the internationa1law doctre

of succession of states, the "succssor" RM Governent thus ratied the ob ligation entered into by its "predecer" governent. See Zemanak "State Succession After Decloirtion, n 116 Recu"eil des Calm, 181,207 (1965) (App. 1575).

As stated by Browe, th is in esence a "substitution or subrogation, puttng the

succesor (governent) in charge of clais belongig to the predecesor.. i.
Browne at 663 (App. 1569). .
48

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Appellants' reliance on the contiuous nationalty doctre reflects another crtical misconception. The doctre operates in
internationa law, not as a mean by

which claiants can chalenge

espousal by their own governent, but as a defense avaiable to a
state presented with cla by another state. Thus, a staté asked.

to satisfy a clai may properly refue to recogne it on grounds
that the Clait was not a nationa of the esousing state at all

relevent ties. Governents alo frequently invoke the continuous nationalty rule to deny requests

from their own national

to espouse clai agait another state. 8 M. Whteman, Digest of

International Law 1233 (App. 1562).50 ,
A state presented with clai by an espousing sovereign, in

fact, has fu discretion to recogne and sette such clai notwithstandig the fact that some or al of them do not satify the
continuous nationalty doctrne. It is well-recogned that, "IIJike

any other rue of international cutomar law, the rule on
--- nationality ofClãi'may D.e'moâied or aDrogated by mean of

. treaties." LG. Schwarenbelîer, Interational Law 592-595 (3d

ed. 1957) (App. 1579-1580). ' , ,
impedient to their

States faced with a large group of espoused clai posing an relations with another state have often agreed
Internatinal Claim: TheirSettlement

to diose of them though luup su settement. See generaly,'
1 R. Lilch ~dB. Weston, by Lump Sum

Ageements (1975) (App. 1585). Whe most such

50 The authority cited by appellts (Br. 56) notig that the United States

genera follow the contiuous nationalty nne reflects these specic underlyig
policies. The United States recogn the contiuous nationaty

rule as a defense

avaable to a governent preented with cl because "a state does not have

the right to ask another state to pay compenstion to it" for losses by persons who
were not national of the claig state at the tie of

loss. Simly, the doctrie

alows a state "to declie" requests by its citiens to esouse. Appellants, however,
¡ . can point to no United State policy

which recogn thatnaonai ca asert the

contiuous uationalty nne to invaldate a settément accptable to both states.

51 cr. D. O'Connell, 2 International Law 1120 (App. 1598), quotig Umpire
Parker of

the United States-Geanan MMed Qais Commision (2d ed.1970) (''It

is no doubt the general practce of nations not to espouse a priate clai agait

another nation unes in point of origi jt poses the nationalty of the claimant nation. .. .. ... But even th practice of nations may be changed by mutual agreement.").

49

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a.greements incorp.orate the cOntiuous nationalty rue, ,many
to include within satisfied the rule. Lump sum settlements have covered stateless persons, required that
agreements have vared or diegaded the rule their scope clai which would not have'

claiants have .been national of the espousing state only when

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clai arose, or requied claits to have acquired nationality of
the espousing state only at some point prior to settement. Id.,at

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44-61 (App.1586-1594). . Thus, the rule of contiuous nationalty does not invaldate
the clai settement. Though the Section 177 Ageement, the

~~

two governents agreed to sette al clai. of present Marhalthe nuclear testing program regardless of the' nationalty of the ~laiants when the clai arose. Appellants have cited no authority where a cour or other tribuiial has
lese citizens ariing from'

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.invoked the contiuous nationalty rue to invaidate a settlement

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. acceptable to both sovereigns because of objections from nation- .

-;--a1-of-he-espousing-gov~mment.-1'e-SectQn-l-1-'-Ag~~ment-----------.-.consitutes fu settlement of appellants' clai and e~inguishes .
any furter :responsibilty for such clai on the par of the United

Sta.tes.52 .. . .
B. Trust Territory residents are not United States

citizens. .
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Appellants advance for the fit tie on appeal the arguent

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that MarhaI Islands. residents were the equivalent of Unitec: . States citiens for purposes of espousal. Indeed, the Juda plaitif took the position below that:

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Terrtory citizens. * * *. And the issue is not

The claiants here are not U.S. citiens; they are Trut whether the U.S.' Governent ca espouse; it is whether the

Marhal Islands Governent can espouse.53 .
ii: .
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. 52 & thi Cour has noted, the espousal and settlement by

'the United States

of an indivdual's clai agat another state operates to extguish that ccåim

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under United States law. Shanqhai Power Co. v. United States, 4 a. Ct. at 249.'

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53 See irluda, Pltf, Mem. ir Opp. to Defts Motion to Contiue Suspenson
of Proceedings at 25, Mach 4, 1983.. It should aJo be noted thatNito¡'pIaitis
contendei;inAntolok II that they

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were alens, rather than United States citiens,
50

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Appellants do concede on appea that the "Maraalese were
citiens of the Trut Terrtory (Br. 58), but now argue that be-

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cause the United States exercised extensiv~ governing powers, ap- .

pellants also were de facto United States citizens, whose clai canot be espoused by any governent (Br. 56-61). Ths Cour
has expressly .held, however, that Trt Terrtory residents "are .
citiens of States,. the Terrtory, not of

the Umted Sti¡tes.ii Porterv. United
1004'

(1975).54. it. .substantial The United States fuy agrees that exercised

496 F.2d 583, 588 (Ct. O. 1974), cert. denied, 420 U.S.

powers, in both civi admtrtion and diplomatic protection,

whie admterig the Trust Terrtoiy.The United Nations
never intended, however, in establihig. the international trs- .

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teeship sytem, tha.t trteeship resdents would be regaided as

---------- --NõfasingIe aspect ofeiller meUN:-CIarer or ffe Truteeslûp-- ---------"
delegated powers of governent durg the trteeship period.

citizenS of the varou, admisterig authorities by vire of

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,Agreement support th drtic trformation of citienship.
To the contraa, the Truteeship Ageement designated the United States as "admtè$g authority (App. 277), not as
soyereign, and Aric~e 11 granted resid~ts "the statu of citien- ,

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ship of the trst temtory (App, 280),5 Both the U.N. Charer and Trusteeship Agreement directed the United States to promote self-govern~nt (App. 278, 273), a diective wholl inwith the meang of 28 U.S.c. 1350, which grts ditrct Court jurdiction of
certai tort actions "by

;! .' "

an alen" (App. 1415).

54 Whe àppellants state (Br. 61) tht the Oai Cour held Mahaese .
residence to be "the equialent of

U.S. citiens1ú," in rug that the FjfthAmend-

,ment extended to the Trust Terrtory, the cour in that very analysis found, on the
basis of

Porter, that "citiens of the Trust Terrtory are not United States citiens....

Juda, 6 a. Ct at, 457; Moreover, as died in Par V below, the Cl Cour's
application of the Fif Amendment to the United Nations Trut Terrtory is incorrect

55 Co~istent with Arcle 11, the United States as admiterig authority
promulgated Title 53 of the Trut Terrtory COe which provided for Trut Ter-

, I "

imgration laws. .
51

ritory citienship and imgration. Terrtozy ciens trvelled with Trut Territory passpol,ts, and were "non-imigrant aliens" under United States

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. consistent with a transfer of citizenship. Appellants' position, that the MarhaI Islands governent cannot conduct the fudaental act of espousal because its residents were not even its citizens,
would .thwar that objective.

Appellants' own citations (Br. 57-58) demonstrate the weakness oftheirposition. Appellants contend (Br. 58) that their status is "no diferent" from. a citien of Hawai who moves to the Mar-

shal Islands, is. naturaled, and whose prior ta1g clai is then
espoused agait the United States. Appellants, however, have

neither relocated nor become Marsh~ Islands citizens by.. natualiation. They have. resided thoughout in a U.N. trst territory whose sovereign capacity has evolved gradualy withi the

strctue otthe U.N. trteeship system. 13 O. Ct. at 677 (App.

11). Recogntion of the authority to espouse would not, as appellants identif their underlyg'concem (Br. 58), serve as.a "pretext
for intervention by (the Marhal Islands) in (the United States') . ...----;----------domeSticafai."-It-wouldl'ecogne-thesovereign-capacity-of-the-- .-------. Marhal Islands governent as the lega recogned successor

-------------

to the TnnfTerrtory Governent. .
Appellants alo rely (Br. 59-60) on severa caes holding that

the Trut Terrtory was not a "foreign state" for puroses of applying parcular United States statutes to the Terrtory. Those caes;
however, do not involve espoUsal, were al decided prior to apd

proval of the Compact recogning the Marhal Islands'sovereigi
authority to espouse,

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and are irelevant to dete~8 citienship

in an evolvig state under the doctre of espousal. .
56 Appellants alo fai to ackowledge a substatial body of law holdig that .
the Trut Terrtory was a foreIgn state for pUIse of

other United States

statues. See ça/l v. United State, 253 F.2d 838,840 (2d Cir.), cert denied, 357

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U.S. 936 (1958) (disig Federa Tort Cl Act action because "whatever
. admtrtin is exercised by the United States Governent is solely and wholl

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in the capacitY of the trtee desgnated by the United Nations"); McComish v. Commissioner of InJmal Revenue, 580 F.2d 1323, 1327 (9th .ar. 1978) (U.S.

citiens can excude from taxble income saares eared in Tnnt Terrtory because it is a "foreign country"); Ardanas v. Hogan, 155 F. Supp. 546, 549 (D.

I i I

Hawai 1957) (Trot Terrtoiy is "foreign fOJ: imgration puroses"). As stated
in Gale v. Andr, 643 F.2d 826, 834 (D.Ç. Ci. 1980), holdig the Frec;dom of

Inormation Ac inpplicable, to asume that United States laws apply "to a
52

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c.. . The United States breached no fiduciar relationship.
Finaly, appellants' contention (Br. 61) that the Marhal
Islands' espousal reslts from "a breach of

the fiduciar obligations

of the United States" is equaly without merit. Appellants assert

teeship Ageement itself. The Cl Cour however, dised
. claim ~egig a faure to diharge obligations under the Trus~

(Br. 62-63) that such obligations arose pririy from the Tru-.

teeship Agreement, on the ground that 28 U.S.c. 1502 explicitly

precludes Oai Cour review "of any clai agait the United
States growig out of or dependent upon any treaty entered into
with foreign nations." Peter,

6 a. Ct. at 778-779 (App. 57-58); .

Mtal, 7 a. Ct. at 416-417 (App~ 72-73). Appellants faied to ap-

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peal either of those holdigs, and caot now mae thi arguent,
. in a .revied context, as a basis for contestg espousal.
As the Clai Court noted, the rationale for 28 U.S.C.1502

1;111 III

"lies in the des~e to avoid judicial interference with the conduct
of foreign relations by the Executive Branch." . 6 CL a. at 778, citing Hughes Aircraft Co. v. United States, 534 F.2d 889, 903 n.17 (Ct. Cl.1976) (Àpp; 57). Th Courspredecessor has fuyrecogII
ii;
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nized that the Trsteeship Ageement was a treaty under that
statute,Kabua, Kabua v. United States, 546 F.2d 381,385 (Ct. Ci.

II
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. 1976), cert. denied, 434 U.S. 821 (1977). Appellants thUs may not

challenge their governent's espous based on claied fiduciar responsibilties aring from the Truteeship Agreement. Apar from the Truteeship Agreement, appellants asseIt (Br. 62, 64) that the admterig authoritys.fiduciar duties are
from "generai international law" and; by analogy, from the statu .

1

of Indian tribes. Those concepts, however, are inapplicable to the
international truteeship sytem established under the United Na-

tions Charer. That system creates a unique political, rather than common law trst, relationship, whose rights and obligations are . governed by the tenn of the Truteeship Agreement itself.

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separate and distict terrtorial goverent that is strvig toward self-govern-

ment under the stewardship of tl nation" wOttd be "to ignore entiely the purpose and litations of the Trusteeship Agreement"

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The prescn'bed role of the United States in the trsteeship
system is that of "admterig authority," not of common

law tr-

tee. Like other. nations whö assumed responsibilty for ad-.

ministering trusteeships, the United States undertook the
obligation to protect the right of the peoples to self-determa-

tion. That obligation is a politica duty assumed by the express
';1

term of the Ageement, not a trt duty as that term is understood

;,

ii Anglo-American jurprudence. Indeed, since the "corpus" of the trusteeship is the sovereignty of the people and their politica right to self-determation: it would be unwise at thi time to select a few desired
characteritics of "tnts" and argue that they are plai-

ly applicale in the real of trteeship agreements, .
when other

common characteritics of "trts". -- as for

iitance the holdig of title - may be objectionable if

cared over to the international field. (i-W1teman, Dîgesiof1llematlimrzlLdw-S43'-(-1963).j

Simarly, it is indisputable that "the relation of the Indians
.. to the Uiited States is marked by pecuar and cårdial distictions
which exist no where else * * *." The Cherokee Nation v. Georgia,S Pet. 1, 16, 17 (1831),quotedinBakerv. Carr, 369U.S. at

215.

The United States and

American Indian trbes enjoy a unique trst

57 Appellants' contention, for exple, that the Compact granted no signicat foreign af powers is belied by'the Marhal Islimds governent's ex-

press powers to conduct foreign afai "relatig to law of the sea," to conduct
"commercia, diplomatic, consuJar, ecnomic, trde, bang, posta i;iv aviation,

communcations, and cultural relations," an to "enter into, in (its) own name and right, treaties and other internationa agreements with governents and regional
and inti;matinal orgations" (App. 858) (see alo App. 318-319, demonstrting, contra to Br. 66 n.57, that.the Marshal Islands has fu authority to enter

into the Law of the Sea Convention). The fact, 'as appellants note (Br. 66 n.57), that the United States provides consular protection to Marhal Islands citiens in thd countres is fully consistent with Marhal Islands sovereignty and internationa practce in genera See Arcle 8, Vienna Convention on Consular Rela-

tions, 21 UST 77, TI No. 6820, S96 UNS 261. Simarly, the Compact.
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provides the Marhal Islands with the same status as to highly migrtory fih
species provided to all other coasta nationS under the Magnuson Act, 16 U.S.c. 1801, and the Fisherman's Protectie Act, 22 U.S.C. 1971. The Marha Islands, with AustraIa, in fact, on Apri 2, 1987, entered into a regional fiheries agreement
Fiji, Papua New Guinea, New Zealand and other Pacic nations.
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relationship. Montana v. Blackfeet Tribe of Indians, 471 U.S. 759

(1985). The "special. protection" aforded American Indians under American law simply has no appliCation to United States obligations under the U.N. trsteeship system. Finaly, appellants, in. arguing that a fiduciar duty.exited,

attempt to inject so-ced "indicia of unaiess" purortedly
demonstratig that such duty was violated (Br. 65-68). That dicussion, however, is irelevant and, in any case, incorrect.57

I i i

Moreover, those asertons fai to account for the fact that the Nations monitored elec- . in United peoples of the MarhaI Islands, tiODS, voted for the Compact and Secton i 77 Agreement. & the

Trusteeship Counci recogn~ the Marhal ISlanders "have
freely exercised their right to self-determation * * * and have.
chosen:free asociation with the United States" (App. 1221).

:1 I: :1 ;1

ï

. V. CIEN OF TH :MSHA ISLAS :MY NOT
___ -----0-.---------

:1 :-. '..

_ _______INOKE-TH_JUST-COMP-ENSATION_CLUSE
The United States moved to di the takg clai below

on the .ground that the Fif. Amendment's Just CompeFlation ' the United Nations Trust Clause does not extend to the citizens of
Terrtory for

the Marhal Islands. The Oai Court tenned ths
" . .1': i

argument "substantial, n and, in fact, detenned intialy that the
takg clai probably should be dimised. 6 O. Ct. at 457-458

governing authority under the Truteeship stemmed from its con-.. stitutional treaty power, not the terrtorial clause, that the Trust was not United States terrtory, and that Trust Terrtory Terrtory
citizens were not United States citiens, 6 Cl. Ct. at 456-457 (App.

(App. 45-46). The cour also found that the United States'

44-45).
Despit,e these fidigs, the court went on to hold, without

citing authority, that the Just Compensation Oause is "conveyed

to the Marshall Islanders by the force of the Constitution and our

system of governent," and that "(a)U of the restraits of the Bil , of Rights are applicable to the United States wherever it has
acted." ¡d. at 458 (App. 46). No cour, however, has so globaly

extended constitutional rights, diregardig considerations of
sovereignty, citienship, and the relaûonship of

the United States

to the locaty and claiants involved. Given the dispositive na-

ture of the issues dicused in Par I through IV, above, the Court
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need not reach the question of whether the Just Compensation

Clause extends to the citiens of the MarhaI Isnds. The aai
Court's holdig, neverteless, is impermibly overbroad, and the
Court may reverse that holdig as an alternative basis for af-

ing dismial of the takg clai l)elow.
The cour inntolok II, in fact, held that "plaiti here, alen

residents of the MahaI Islands, cannot reach out to the Fif
. Amendment in support of their arguent that tte Compact is un-

.constitutional" (App. 1417); The court ditigù--h~d the Trut Terrtory relationsp from caes involvigl.,.~en's who are, or whose propert is, in the United States, and concluded that "plaiti are citiens of the Marhal Islands and must look to the loca

law-makg intitutions for any inj~es to plati. due process
or propert rights" (App. 1418).

As the Cl Cour correcty held, the "political statu of the Trust TeIrtory456 the Pacifc Islads is unique in international of (App. 44). Terrtories under the United Nan----Iaw." 6.0. Ct. at
trsteeship they are placed," and the trtee "is not

tions trsteeship sytem "do not belong.to the state under whose the sovereign

of the Trust Terrtory." 6 a. Ct. at 457 (App. 45). As th Cour stated, "the most persuasive view on this. question is that
sovereignty rests in the people of Micronesia and is held in trt

for them by the admisterig power." Porterv. Uniied States, 496
F.2d at 588 0.4.

Thus, domestic United States legal nghts do not apply to the
Trust Terrtory by force of sovereignty. Rather, United States

responsibilties are defied by the term of the Truteeship Agreement, which is the governg lega frework of the political trt.

relationship. The United StRtes agreed i.der that treaty to perform an international admtrtive role under term approved by the United Nations. The United States entered the Agreement
not as sovereign of the Trust Terrtory, but as a sovereign ca-

ing out obligatioru aring from its designation as admsterig
authority, in accordance with the u.N. Charter,' a,nd under

I.

authoritY specifcay delegated by the Agreement.' As stated in
Gale v,, Andru, 643 F.2d 826, 830 (D.C. Cir. 1980), applying

56

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United States legal protections, by their own force, to citiens of

the Trust Terrtory ''would place the United States by judicial

decision in a governental postue involvig the Trut Terrtory
that the United Nations never intendëd it to occupy."

As the Trusteesp Ageement itself demonstrates, the Just Compensation Clause ha no role in thi relationship absent express congressional. extension. Arcle 3 grants th~ United States "full powers of admtration, legisation, and jurdiction * * *
subject to the proviions of

thi agreement," and provides that the

United States "may apply to the trst terrtoI), subject to any

modifcations wmch the admterig authority may consider
desirable,such of the laws of the United States as itmay deem appropriate to local conditions and reCÍements" (App. 278). ThUS;

the grt of gov~mig authority is complete, whie the a~plication
of domestic United States legal rights is dicretionar.5 Because

the Urited States, as admterig authority, is not sovereigI in

the Trut Terrtory, it must take afative steps to extend its
governent~ ~nd 1~ga system to th~ T~st Terrtory for the pur-

poses of admtenng the trteeship. 9 . . Arcle.3's dicretionary application of United States legal rights is lited by Aricle 7, which specifes those "fundamental

freedoms" which the admterig authority must guarantee.
That provision stems from Arcle 76(c) of the United Nations

Charer, which states as a "basic objecnveD" Qf the trsteesmp sys-

tem the fosterig of "fundamental freedoms for al" (App:. 273). '

Article 7, in tu provÌdes (App. 279): .
In ~chargig its obligations under Aricle 76( c), of

the

Charer, the admterig authority shal guarantee to
freedom of conscience, and, subject only to the requements of public order and secuty, freedom of speech, of the press, and
the inabitants of the trst terrtory

58 Ths is confed by Arcle 12, which requies that the "admiterig
authority shal enact such leglladon as may be necessar to place the proViions of th agreement in effect in the trt temtory" (App. 280). 59 Arcle 13 of the Tnteeship' Ageement al recogned that the United States had full authority to close area witt the Terrtory for national securty .

reasons CApp.280). .

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1

!

of assembly; freedom of worship, and of religious teach- '

ing; and freedom of migrtion and movement,

These guaranteed freedoms do not make applicable the Fifth
Amendment's Just Compensation aause.

The United States exercised its extensive governg powers in.the Trust Terrtory, to ultiately foster self-governent, in a
maner fully consistent with its non-sovereign politica relation-

ship to the Terrtory. çongress approved the Truteeship Ageement by joint resolution as an international treaty subject to
, i .

international law. See, McDougal and La, Treaties and Congressional-Executive and Presidential Agreements: Interchangeable Instrents of National Policy, 54 Yale LJ. (1945) 181,

203-206. And over the next thee decades Congress passed
dozens oflaws applicale to the Terrtory, pertaig to appropria.:

tions, federa propert trers, auditsof,federal expenditues'

____and_other_admtrati'le_matterL(s_e_e--8_U~£.r:_'_i_6ß2-1687), as well as addressing the consequences of the nuclear J8sting
program (see dicussion infra at 33 n.23 andApp. 344B)., The
Congress, in Section 171 of the Compact Act, subsequently

repei:ed those laws, except as specied in' the Compact, statig that "the application of the laws of the United States to the Trut Terrtory ofthe Pacic Islands byvie of the Truteeship Ageement ceases * *, * " (App. 867). '

The aai Cour recogned that the Trut Terrtory was
adminitered under the President's treaty power under Arcle II, the Constitution, rather than the Aricle IV, section 2,clause 2 of
section 3, terrtorial clause. 6 a.Ct. at 456-457 (App. 44-45).

Thus, the cour correctly distiguished the Trust Terrtory from
the so-caIed Inslar Cases, sten:g from the United States' ac60 The Qai Cour appear to rely on 48 U.s.c. 1681 as demonstratig the
applicabilty of constitutional protections to the Trut TerrtoI). 6 a. Ct. at 458

"Unti Congres shal fuer provde for the goverent of the Trost TerrtoI) for the Pacic Islands, al exectie, legitive, and judici authority necess for
the civ1 admtration of the Trut TerrtoI) shal contiue ,to be vested in such
person" · · as the President of

(App. 46). That statute, however, which Congres enacted in 1954, stated that:

the United States may diec and authorie." Thus,

the statute wa enablig legilation for contiued Exective admition of the TerrtoI), and fully recogned thàt Congress could pas its own dicretionaa,
legislation for such puroses. See dission in Porter, 496 F.2d at 588.
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quisition of terrtories by conquest following the Spanish;.
American War in 1898, and which considered the

applicabilty of

constitutional protections to Uniteg States territories. ad-. mistered under the terrtorial clause. 1 The Supreme Cour in
those cases held that the Constitution applied by its own force to "incorporated terrJories," intended for statehood from the time of acquisitioafbieonly "fundamenta constitutional rights" apply

l.utomaticaIy to "uncorporated terrtories," not intended for
statehood. Balzac v. Puerto Rio, 258 U.S. 298, 314 (1922);

Downes v. Bidwell, 182 U.S. 244, 287 (1901); Dorrv. United States,

195 U.S. 138,-148-149 (1904).

. The aai Cour held that the 'Trut Temtory is not a ter-

---

ritory of the United States, either incorporated or --ncorporated,"and the "unique'relationship" recogned by ths Cour

in Porter, between the Trust Terrtory and United States, ditin-

_~hes it from the Inar Caes. 6 a. Ct. at 457 (App. 45). Despite thi rug, and without reference to auffontye cour
found that the unique Trust Terrtory relationship weighed

in

"

favor of, not agait, extendig constutional protections by their

own force to the Terrtory. Moreover, the cour applied the v~ry Insular Cae analyss it had just rejected; holdig that "(t)here is
no suggestion that the protections of the just compensation clause in the Fifh Amendment are any less 'fndamental' than the other
protections enumerated ii the Bil of

Rights. "¡d. at 458 (emphasis

suppliep) (App. 46).

.The cours resUltig overbroad rug, which ~Bd:
conStitutional protections abroad under vialy any circumtan-

ces, isiorreet;nd-fais-o-~outi'onhe unquetïu'steeship.
61 ÅrcJe IV; section 3, clause 2, grants Congres power "to disose of and
make all needful rues and reguations resectig the terrtory or other propert

belongig to the United States." 62 The Ninth Circut found in Co~onwealtl"o iJe Northern Mariana Is11nds
v. Atalig, 723 F.2d 682, 691 n.28 (9th Or.), cert. denied, 476 U.S. 1244 (1984),
that even

in the ca of the Nortern Marana Islands, which chose commonwealth

statts under United States soereignty, "there is merit to the argument that the

NM is dierent frm areas previously treated as uncorporated tenntòrles," and
that the Constitution may apply with even les force than to unicorporated territories.

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'~

1 rr

i ,' .

relationship the cour itself acknowledged.62 Court have recognied ~at there are specif~ situtions in which nonresident alens may invoke United States constitutional protections. See Car-

.. denas v. Smith, 733 F.2d 909, 915-917 (D.C. Cir. 1984); In ,e
Aircrash in BalL Indonesia on April 22, 1974, 684 F.2d 1301, 1308 n.6 (9th Cir. 1982). But in each case, the cour have carefully ex-

amed the specifc reIationshipof the claits to the United,

wrooo. '
States, and __537 (Ct.a.1965), did not reach the Question of 44), was based on precedent applyig to propert of

have carefully lited the scope oftheirrugs to those

circutances. Cardenas v. Smith, 733 F.2d at 916-917,63 The

United States is aware of no Cae holdig that constitutiona rights

extend to nonresident alens whenever the United States acts

The aai Cour itself correctly ditiguhed holdings by

thii CoUr relatig to constitutional protections aforded foreign

citizens. 6CI. Ct. at 455-456' (App. 43-4). The Court in Porter, 496 F.2d at 591-592, and Fleming v. United States, 352 F.2d 533,,
whether th~tEif__,

Amendment applies to the Trut Terrtory. Plaiti in Se60 v.1 United States, l2 F. Supp. 601, 602 .(Cta. 1955) wa a United States citien, not a foreign citien. And whie the Cour in Tur- , :
ney v. United States, 115 F.Supp. 457, 464 (a.a. 1953), rejected

the contention that the Fifth Amendment is inapplicable in'

foreign countres, that decison, as the a~ C;our, found (App.
United States
citiens which wa located abroad, or foreign-owned propert in

the United States (ibid.), and alo inyolved. thegovernent of the
Phippines, which the aai Court found diered "in signcant

respects frQm the relationship of. the United States to the ITG."
6 a. Ct. at 456 (App. 44)., .
, Ths . Cour need not defie' the parameters of the Fif

Amendments applicabilty to actions by the United States abroad.
63 Inaddition, the cour iIIii reAirrah uu BalL Indonesia, held that the Fif
Amendment cottd apply in that cae, which ~d clai by residents and non-

resident alens, siply because the Fif Amendment .surelydoes not permt in a

case such as th one, the application of dierep.t roes of decion to resdents and

recto . .
60

nonresidents suig on the sae cause of action in the same cour" 684 F.2d at; 1308 n.6. That holding, made in a footnote witl no analis or autlority, is incor- '

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1

It is clear that the Clai Cours broad holdig in this respect is
without precedent, and incorrect. The Just Compensation Qause'
does not extend to claits who were citizens of the UnitedNa-

tions Trut Terrtory, and dial of the clai below may be affied on that basis.

CONCLUSION

, For the foregoing reasons, the fial judgments of the aai
Cour entered on November 12, 1987, shouId be afired. .

Respectflly subintted,

ROGERJ. MALA
Assitant Attorney General

----OF-GOtJSEI.:-

t'A"DVB - Ai-1TATT . -------\;ru-,1- "D.~,:1~.1--, JOHN T. STAH

JACQUE B. GELIN

------- --

HOWAR L. HI_
United States Deparnt
of State .
Washington, D.C.

Attorneys, Departent of Justie Land &: Natural Resources Division Washington, D.C. 20530 (202) 633-2956

JU 1988
90-1-23-2455 90-1-23-2485 . 90-1-23-2542

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CERTICATE OF SERVICE
I cerr that copies of the foregoing Consolidated Brief of

Appellee ~~ United States have today been served upon counsel, by placing same in the United States mai, postage prepaid, th 24th day of June, 1988 to:" properly addressed,

Jonathan M. Weisgal Charered
1300 - 19th Street, N.W. Suite 407

Washigton, D, C. 20036 .
Uoyd N. Cutler David R. Anderson

AndrewB. Weisan
Wiler, CCtler & Pickerig

2445 M Street, N.W.
Washigton, D. C. 20037~1420

R-eooper-Brown------- -----Marhal Islands Atomic Testig "

Tak Park, n~2012. _ ."'

Litigation Project 6935 Laurel Avenue

. \ (k'STAH ,,~Jl/~ .~ Jt . ~. /! A, JO~T. ""...
Attorney, Deparent of Jusce
" "Washigton, D. C.20530 (202) 633-2956

62

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