alep v us authority keanu sai v clinton invoking cherokee

8/6/2019 Alep v US Authority Keanu SAI v Clinton Invoking Cherokee

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People of Saipan v. United States Department of Interior, [1974]

USCA9 332; 502 F.2d 90 (9th Cir. 1974), which stated broadly that

the Trusteeship Agreement was a source of individual legal rights,

id. at 99, suggesting that in a proper forum the plaintiff class couldseek injunctive relief to enforce treaty rights.

The U.S. Courts held that the Trust Territory was a foreign country

even though governed by the United States. See Callas v. United

States, [1958] USCA2 210; 253 F.2d 838 (2d Cir.) [Kwajalein], cert.

denied, 357 U.S. 936 (1958); see also Brunell v. United States, 77 F.

Supp. 68 (S.D.N.Y. 1948) [Saipan].

Dissent: The United States Government's attempt to deny its

acceptance of responsibility for wrongful acts committed during pre-

Compact time reflects the continuing betrayal of indigenous peoples

by this same Government. Ever since 1831, when Chief Justice

Marshall first wrote his opinion in Cherokee Nation v. Georgia, 30

U.S. 1, 8 L. Ed. 25 (1831), this same government has refused to

recognize the plain language of its own treaties. By declaring Indian

Nations domestic nations rather than foreign nations, JusticeMarshall annihilated the complete and separate sovereign power

promised to the indigenous people through numerous treaties. To

justify why his Court would not allow the Indians to sue the United

States Government for its wrongs, Marshall said:

At the time the Constitution was framed, the idea of appealing to an

American Court of Justice for an assertion of right or a redress of

wrong, had perhaps never entered the mind of an Indian or of his

tribe. Their appeal was to the tomahawk, or to the government. This

was well understood by the statesmen who framed the Constitution

of the United States and might furnish some reason for omitting to

enumerate them among the parties who might sue in the courts of

the Union.

Cherokee Nation, 30 U.S. at 18, 8 L. Ed. at 31.
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One hundred and sixty-five years later the United States

Government calls upon this Court once again to betray the

indigenous people to whom they have promised an opportunity forreparations of past wrongs. I cannot allow the United States

Government to again disavow its prior agreement with an

indigenous people, namely, the people of Micronesia.

II. Retroactive Effect of Treaty

The plaintiffs recognize that the Trusteeship Agreement was not in

force when the population was displaced by military action following

a general war between belligerent powers using the affected islands

and waters for military operations. They argue, however, that the

Trusteeship Agreement was a treaty which imposed upon the United

States as trustee continuing duties in favor of the citizens of the

Trust Territory, and that during the period of Trusteeship the United

States wrongfully ignored, neglected, and failed to perform its duties

according to the terms of the Agreement.

The plaintiffs argue next that these failures to perform the duties

imposed by the treaty were a continuing course of wrongful conduct

that also violated the terms of subsequent agreements entered into

between the United States and the people of the Trust Territory of

the Pacific, including the Micronesians residing in what are now the

Federated States of Micronesia. Accordingly, the plaintiffs argue,

there is no need to consider retroactive application of the

Trusteeship Agreement because the wrongful conduct continued,

and created continuing rights and duties.

The plaintiffs' argument begins with the alleged misconduct of the

United States Navy during the period of the Navy control of the

territory from 1945 until the United States Department of Interior

assumed a degree of civilian control in 1951. Thereafter, until the

formation of the government of the Trust Territory of the Pacific


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Islands in 1968, plaintiffs argue that the United States remained

responsible for the management of the affairs of the affected islands

through executive delegations.

Between 1968 and the formal termination of Trusteeship in 1986,

with the concurrent effective date of the Compact, the High

Commissioner, representing the United States government, was the

responsible official whose duties under the Trusteeship included the

administration of remedial policies announced by the United States

government to compensate the victims of wartime and postwar

dislocations, and loss. Plaintiffs argue that the Trusteeship period

was marked by indifference and neglect of existing remedies on

behalf of the victims of the wrongful removal of island residents.

The historical recitation makes a strong case that the United States,

as trustee, failed to carry out the lofty promises of Article 6 and 7 of

the Trusteeship Agreement, notably to "protect the inhabitants

against the loss of their lands and resources" Trusteeship Agreement

art. 6(2), and to "guarantee to the inhabitants . . . freedom of . . .

migration and movement," id. art. 7.

It does not follow, however, that the bureaucratic abuses attributed

to the Navy, the office of the High Commissioner and to the

government of the Trust Territory of the Pacific Islands, created

private rights of action for aggrieved individuals who might wish to

sue for money damages in their country's courts for historic wrongs.

We must continue the search for a private right of action.

Scholarly writing since the General Assembly of the United Nationsadopted the Convention on the Non-Applicability of Statutory

Limitations to War Crimes and Crimes Against Humanity, G.A. Res.

2391, U.N. GAOR, 23rd Sess., (1968), strongly supports an

international common law principle opposed to the employment of

statutes of limitations to war crimes and crimes against humanity.

However, the choice whether to allow the defense of municipal

statutes of limitations is not compelled by the municipal law of

states that have not signed the Convention. The United Statesgovernment has not signed the Convention.


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VI. Individual Defendants

We need not decide whether the tort claims (assaults, batteries,

trespass, false imprisonment, infliction of emotional distress,

confiscation and conversion of property) are also crimes against

humanity, for which the individual defendants, as agents of the

United States might, in a proper case be subject to liability despite

the passage of time. Any claims that survive the running of time and

the expiration of various remedial statutes providing for

compensation for damages caused by military operations in thePacific would be recognized as claims against the United States, not

against the individual defendants who may have had a part in

executing the actions now in question.

International law does not impose vicarious liability on the chief of

state or upon elected and appointed officials to whom governmental

authority has been delegated to make military decisions having

collateral consequences to noncombatants in theaters of operations.See, e.g., Ryuichi Shimoda v. State, 8 Japanese Ann. of Int'l Law 212

(1964-65) (damage action for nuclear bombing of an undefended

civilian city). The trial court correctly ruled that the individual

defendants named in the complaint were not personally liable for

losses caused by military operations ordered by their Government.

Alep v United States [1996] FMSC 4; 7

FSM Intrm. 494 (App. 1996) (2 July

1996)


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FEDERATED STATES OF MICRONESIA

SUPREME COURT APPELLATE DIVISION

Cite case asAlep v United States, 7 FSM Intrm. 494 (App. 1996)

TAKUO ALEP et al.,

Appellants,

vs.

UNITED STATES OF AMERICA et al.,

Appellees.

___________________________________

APPEAL CASE NO. C5-1993

BEFORE:

Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

Hon. Wanis R. Simina, Temporary Justice, FSM Supreme Court*

Hon. Alfred T. Goodwin, Temporary Justice, FSM Supreme Court**

*Associate Justice, Chuuk State Supreme Court, Weno, Chuuk

**Senior Judge, United States Ninth Circuit Court of Appeals

OPINION

Argued: January 20, 1995

Decided: July 2, 1996

APPEARANCES:

For the Appellants:

Barry J. Israel, Esq.

Strock & Strock & Lavan

1150 Seventeenth Street, N.W., Suite 600

Washington, DC 20036-4652

For the Appellees:


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Traylor T. Mercer, Esq.

Moore, Ching, Boertzel, Civille, Dooley & Roberts

Suite 400, GCIC Building

414 West Soledad AvenueAgaa, Guam 96910

* * * *

HEADNOTES

Trusteeship Agreement

Although the Trusteeship Agreement was a source of individual legalrights, it, standing alone, did not create private rights of action for

money damages for bureaucratic abuses attributed to U.S. or Trust

Territory officials. Alep v. United States, 7 FSM Intrm. 494, 496 (App.

1996).

Compact of Free Association

The waiver of sovereign immunity clause in the Compact did not

create any new causes of action, but merely waived sovereign

immunity with respect to valid existing claims. Alep v. United States,

7 FSM Intrm. 494, 497 (App. 1996).

International Law; Statutes of Limitation; Torts

Any attempt to breathe new life into tort claims time barred by the

relevant and analogous statutes should be approached with caution

because they are the type of personal claims for money damages

that become increasingly difficult of proof and difficult to defend

with the passage of time. Ordinarily such claims are resolved by

political and diplomatic efforts. Alep v. United States, 7 FSM Intrm.

494, 498 (App. 1996).

International Law


state or elected or appointed officials to whom governmental


collateral consequences to noncombatants in theaters of operations.


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Alep v. United States, 7 FSM Intrm. 494, 498 (App. 1996).

Compact of Free Association

The only new cause of action created by the Compact is where theU.S. government accepts responsibility for losses or damages

arising out of nuclear testing in the Marshall Islands between 1946

and 1958. Alep v. United States, 7 FSM Intrm. 494, 498-99 (App.

1996).

Compact of Free Association; Statutes of Limitation

Nothing in the Compact suspends or tolls the statute of limitations.

Alep v. United States, 7 FSM Intrm. 494, 499 (App. 1996).

Statutes of Limitation

The statute of limitations has run on claims of mismanagement of

the Micronesian Claims Act unless there was continuing unlawful

conduct that would create a basis for equitable tolling of the statute

of limitations. Alep v. United States, 7 FSM Intrm. 494, 499 (App.

1996).

* * * *

COURT'S OPINION

ALFRED T. GOODWIN, Temporary Justice:

Plaintiff FSM citizens sued the United States of America and certain

named officials to recover compensation and damages for property

losses and personal injury suffered at the hands of United States

military and civilian officials between 1945 and 1949. The trial court

dismissed the action because the amended complaint failed to state

a claim upon which relief can be granted. FSM Civ. R. 12(b).

In this appeal, plaintiffs rely upon The United Nations Trusteeship

Agreement of 1947, the Compact of Free Association of 1986, the

Micronesian Claims Act of 1971, Pub. L. No. 92-39, 85 Stat. 92,

terminated August 3, 1976 (the "Act"), 11 F.S.M.C. 701 et seq.,


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and international law.

Plaintiffs argue that their claims are not time barred because the

Trusteeship Agreement preserved existing claims and imposedduties upon the United States as trustee. Plaintiffs allege these

duties were neglected, giving rise to additional claims and to the

tolling of time barriers to assert claims.

Each claim arose out of the United States armed forces' removal of

the entire local population (between 200 and 300 men, women, and

children) and exile from their homes on Fono Island and their

enforced stay on Moen Island until 1949. It was not seriously

disputed, and the trial court assumed it to be true for the purposes

of the motions to dismiss and for summary judgment, that the

survivors of the population that was forcibly removed and exiled

suffered hardship, including malnutrition, health problems, massive

violation of human and civil rights, as well as loss of life of family

members, and the loss of growing crops and other property. This

appeal is not about which or whether individuals rights were

violated, but about the availability of remedies.

I. Trusteeship Agreement

The first issue is whether the plaintiffs can make a claim for money

damages under the Trusteeship Agreement. The agreement became

effective among its signatory states in 1947, after the removal of

the population, but before the return of the exiles. This Court must

first consult and apply sources of law of the Federated States of

Micronesia. FSM Const. art. XI, 11. Having located no Micronesian

authorities, we may look outside the FSM for other aid in

interpreting the Trusteeship Agreement, including decisions by

courts in the United States.

The United States Court of Appeals for the Ninth Circuit has held

that the Trusteeship Agreement did not create private rights of

action for money damages. Temengil v. Trust Territory of the Pacific

Islands, [1989] USCA9 629; 881 F.2d 647 (9th Cir. 1989). While we
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are not bound by United States law, the decision is an instructive

review of the political and legal history of the Trust Territory, and the

application of the Trusteeship Agreement to private claims. The trial

court relied on the reasoning of Temengil in holding that theTrusteeship Agreement did not create private rights of action for

money damages. We agree with the trial court.

The trial court also considered People of Saipan v. United States

Department of Interior, [1974] USCA9 332; 502 F.2d 90 (9th Cir.

1974), which stated broadly that the Trusteeship Agreement was a

source of individual legal rights, id. at 99, suggesting that in a

proper forum the plaintiff class could seek injunctive relief to

enforce treaty rights.

The trial court recognized that the People of Saipan did not stand for

the proposition that the Trusteeship Agreement created private

rights to money damages from the trustee state, or from persons

carrying out, or wrongfully failing to carry out their duties under the

authority of the Sovereign assigned Trusteeship under the

agreement. The Trusteeship Agreement, standing alone, did not

create individual causes of action for money damages.

II. Retroactive Effect of Treaty

The plaintiffs recognize that the Trusteeship Agreement was not in

force when the population was displaced by military action following

a general war between belligerent powers using the affected islands

and waters for military operations. They argue, however, that the

Trusteeship Agreement was a treaty which imposed upon the United

States as trustee continuing duties in favor of the citizens of the

Trust Territory, and that during the period of Trusteeship the United

States wrongfully ignored, neglected, and failed to perform its duties

according to the terms of the Agreement.

The plaintiffs argue next that these failures to perform the duties

imposed by the treaty were a continuing course of wrongful conduct

that also violated the terms of subsequent agreements entered into
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between the United States and the people of the Trust Territory of

the Pacific, including the Micronesians residing in what are now the

Federated States of Micronesia. Accordingly, the plaintiffs argue,

there is no need to consider retroactive application of theTrusteeship Agreement because the wrongful conduct continued,

and created continuing rights and duties.

III. The Compact of Free Association

The plaintiffs contend that the rights created by the Trusteeship

were preserved in 1986 when the Trusteeship was formally

terminated, and that these rights could be vindicated under theterms of the Compact of Free Association, 174(c) (1986) (entered

into by the U.S. and the FSM, providing for damages for loss of

property or personal injury or death).

The plaintiffs' argument begins with the alleged misconduct of the

United States Navy during the period of the Navy control of the

territory from 1945 until the United States Department of Interior

assumed a degree of civilian control in 1951. Thereafter, until theformation of the government of the Trust Territory of the Pacific

Islands in 1968, plaintiffs argue that the United States remained

responsible for the management of the affairs of the affected islands

through executive delegations.

Between 1968 and the formal termination of Trusteeship in 1986,

with the concurrent effective date of the Compact, the High

Commissioner, representing the United States government, was the

responsible official whose duties under the Trusteeship included the

administration of remedial policies announced by the United States

government to compensate the victims of wartime and postwar

dislocations, and loss. Plaintiffs argue that the Trusteeship period

was marked by indifference and neglect of existing remedies on

behalf of the victims of the wrongful removal of island residents.

The historical recitation makes a strong case that the United States,

as trustee, failed to carry out the lofty promises of Article 6 and 7 of


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the Trusteeship Agreement, notably to "protect the inhabitants

against the loss of their lands and resources" Trusteeship Agreement

art. 6(2), and to "guarantee to the inhabitants . . . freedom of . . .

migration and movement," id. art. 7.

It does not follow, however, that the bureaucratic abuses attributed

to the Navy, the office of the High Commissioner and to the

government of the Trust Territory of the Pacific Islands, created

private rights of action for aggrieved individuals who might wish to

sue for money damages in their country's courts for historic wrongs.

We must continue the search for a private right of action.

IV. Compact Section 174(c)

The plaintiffs argue that the even if the Trusteeship Agreement by

itself creates no private right of recovery of money damages, when

read in connection with the Compact of Free Association, and the

Micronesian Claims Act, private rights were created, and are

preserved. If private rights of action are created by the intertwined

effect of the cited documents, then the plaintiffs point to 174(c) ofthe Compact as source of remedy.

At 174(c) the Compact states that "[a]ny claim . . . shall be

adjudicated in the same manner as a claim adjudicated according to

Section 174(d)." (Section 174(d) waives the sovereign immunity of

each party (state) in the courts of the other for certain types of

claims including damages for loss of property and personal injury.)

The trial court, however, correctly noted that the 174(d) waiver

language creates no new causes of action, but merely waives

sovereign immunity with respect to existing valid claims. The search

for a valid source of causes of action, in the end, takes us to the law

of torts.

V. Tort Claims Timed Barred


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The trial court dismissed five counts of the amended complaint

alleging tort claims on the ground that under both United States law

(Federal Tort Claims Act, and 28 U.S.C. 2401, limitations) and

Micronesian law, (Trust Territory Statute of 1951) the claims weretime-barred. On appeal, appellees offer the additional argument of

sovereign immunity, upon which they relied in the trial court but

which the trial court declined to reach because the time bar

disposed of the matter. We agree with the trial court.

The tort claims are not only time barred by relevant and analogous

statutes, but are the type of personal claims for money damages

that become increasingly difficult of proof and difficult to defend

with the passage of time. Any attempt to breathe new life into such

stale claims should be approached with caution. Ordinarily claims of

this type are resolved by political and diplomatic efforts resulting in

statutory schemes for compensation, as in the case of United States

citizens of Japanese ancestry wrongfully removed from their homes

and placed in concentration camps within the United States in 1942.

Scholarly writing since the General Assembly of the United Nations

adopted the Convention on the Non-Applicability of StatutoryLimitations to War Crimes and Crimes Against Humanity, G.A. Res.

2391, U.N. GAOR, 23rd Sess., (1968), strongly supports an

international common law principle opposed to the employment of

statutes of limitations to war crimes and crimes against humanity.

However, the choice whether to allow the defense of municipal

statutes of limitations is not compelled by the municipal law of

states that have not signed the Convention. The United States

government has not signed the Convention.

Notwithstanding the equitable and moral arguments against barring

the tort claims in this case as untimely, the trial court correctly ruled

them time barred. See, e.g., Handel v. Artukovic, 601 F. Supp. 1421

(C.D. Cal. 1985) (applying California statute of limitations to bar 35

year old claims by plaintiff-class for damages for crimes against

humanity committed by "Independent State of Croatia" during

German occupation 1941-45).


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VI. Individual Defendants

We need not decide whether the tort claims (assaults, batteries,

trespass, false imprisonment, infliction of emotional distress,

confiscation and conversion of property) are also crimes against

humanity, for which the individual defendants, as agents of the

United States might, in a proper case be subject to liability despite

the passage of time. Any claims that survive the running of time and

the expiration of various remedial statutes providing for

compensation for damages caused by military operations in the

Pacific would be recognized as claims against the United States, not

against the individual defendants who may have had a part in

executing the actions now in question.


state or upon elected and appointed officials to whom governmental


collateral consequences to noncombatants in theaters of operations.

See, e.g., Ryuichi Shimoda v. State, 8 Japanese Ann. of Int'l Law 212

(1964-65) (damage action for nuclear bombing of an undefendedcivilian city). The trial court correctly ruled that the individual

defendants named in the complaint were not personally liable for

losses caused by military operations ordered by their Government.

VII. Acceptance of Responsibility

The only new "cause of action" created by the Compact is found in

177(a) where the U.S. Government accepts responsibility for losses

or damages arising out of nuclear testing in the Marshall Islands,

between 1946 and 1958. Other subsections of 177 deal with

methods of settlement of claims. The entire section is limited to

claims from the Marshall Islands and the testing operations in those

waters.

Section 174(b) of the Compact broadly accepts responsibility by the

government of the United States and an agreement to pay any


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That some sort of remedy should survive both the passage of time

and the failure of individual plaintiffs to take advantage of the

Micronesian Claims Act is perhaps the plaintiffs' strongest argument,from a moral and ethical viewpoint. The governments of the United

States and Japan appropriated substantial sums of money to pay

claims. The United States government established administrative

procedures for the settlement of such claims as might be timely

presented pursuant to the Act by Micronesian residents, including

United States citizens, who had suffered losses by reason of military

operations in the area.

This attempt to renew the claims as tort claims, with renewal based

on tolling principles, can prevail only if this court should hold that

there was continuing unlawful conduct by the High Commissioner

(or his or her responsible agents), in the administration of the

Micronesian Claims Act, that would create a basis for equitable

tolling of statutes of limitations.

Appellees argue that the statute of limitations begins to run when

the wronged party learns or should know of the harm. Thisargument, assuming it is correct as a general theory of time

limitations, transfers the concept of "the harm" from forced exile to

the alleged mismanagement of the Micronesian Claims Act by

United States agents. The alleged mismanagement of the Claims

process may create equitable tolling, but the "harm" began and

ended with the forced exile, which ended in 1949. If there was

mismanagement of Micronesian Claims by the United States, the

statute has run and the claims is time barred.

IX. Conclusion

With the exception of the questions about the manner of processing

claims from Fono Islanders, which appear to be separate and

discrete claims in each case, and which may have some residual

viability if the proper parties bring them in the proper forum, the

other claims asserted in this action were appropriately disposed of


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by the trial court. The judgment is affirmed without prejudice to any

claims that may yet have validity under the theories argued by the

plaintiffs for equitable tolling of the statute of limitations, and the

principles announced in Ralpho v. Bell, [1977] USCADC 330; 569F.2d 607 (D.C. Cir. 1977).

* * * *

DISSENTING OPINION

WANIS R. SIMINA, Temporary Justice:

I would reverse and remand this case because the lower court erred

in dismissing the tort claims. Sub-sections 174 (b) and (c) of the

Compact of Free Association, when read together, specifically

provide that "(t)he Government of the United States shall accept

responsibility for and shall pay . . . (a)ny claim . . . arising from an

act or omission . . . of the United States prior to the effective date of

this Compact . . ." 48 U.S.C.S. 1681, at 104 (Supp. 1990). The

United States Government's attempt to deny its acceptance of

responsibility for wrongful acts committed during pre-Compact time

reflects the continuing betrayal of indigenous peoples by this same

Government. Ever since 1831, when Chief Justice Marshall first

wrote his opinion in Cherokee Nation v. Georgia, 30 U.S. 1, 8 L. Ed.

25 (1831), this same government has refused to recognize the plain

language of its own treaties. By declaring Indian Nations domestic

nations rather than foreign nations, Justice Marshall annihilated the

complete and separate sovereign power promised to the indigenous

people through numerous treaties. To justify why his Court would not

allow the Indians to sue the United States Government for its

wrongs, Marshall said:

At the time the Constitution was framed, the idea of appealing to an

American Court of Justice for an assertion of right or a redress of

wrong, had perhaps never entered the mind of an Indian or of his

tribe. Their appeal was to the tomahawk, or to the government. This

was well understood by the statesmen who framed the Constitution
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of the United States and might furnish some reason for omitting to

enumerate them among the parties who might sue in the courts of

the Union.

Cherokee Nation, 30 U.S. at 18, 8 L. Ed. at 31.

One hundred and sixty-five years later the United States

Government calls upon this Court once again to betray the

indigenous people to whom they have promised an opportunity for

reparations of past wrongs. I cannot allow the United States

Government to again disavow its prior agreement with an

indigenous people, namely, the people of Micronesia.

Statute of Limitations

From my reading, the trial court found that the Fono people's tort

claims had accrued in 1951, and therefore the statute of limitations

had run either 2 or 6 years later based upon 28 U.S.C. 2401 and

Section 5 of Article XV of the Status of Forces Agreement [SFA]. The

lower court's reasoning was that the SFA provided "that any

judgment presented 'shall be deemed manifestly erroneous' if the

claim would have been barred by the statute of limitations if the

claim had been brought in a court of the United States." Alep v.

United States, 6 FSM Intrm. 214, 220 (Chk. 1993). The lower court

held that all of the tort claims "accrued, at the latest, when the

applicable Trust Territory statute took effect in 1951." Id. While the

trial court does not identify the statute, it apparently refers to 6 TTC

310. That statute was originally promulgated in 1952 by the first

Trust Territory High Commissioner. See Executive Order No. 32

[Promulgating the Trust Territory Code (Dec. 22, 1952) Capt. 5

324].[1] The provision states "For the purposes of computing the

limitation of time provided in this Chapter, any cause of action

existing on May 28, 1951, shall be considered to have accrued on

that date."
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However, "no cause of action generally accrues until the plaintiff has

a right to enforce his cause." United States v. One 1966 Red

Chevrolet, 457 F.2d 1353, 1358 (5th Cir. 1972); see also Walker v.

United States, 458 F. Supp. 251 (D.D.C. 1978) [Period of limitationdoes not run until plaintiff has right to enforce his cause of action];

Jackson v. United States, 182 F. Supp. 907 (D.D.C. 1960) [claim

accrues when it may be made the basis of judicial action]. So to

apply a statute of limitations, the appellants must have had a right

to enforce their cause of action either in the Trust Territory courts or

in the courts of the United States against the United States and

related defendants.[2]

As late as 1967 the Trust Territory courts maintained that neither the

Trust Territory nor the United States could be sued in the courts of

the Trust Territory without their consent. Alig v. Trust Territory, 3 TTR

603 (App. 1967). The first waiver of immunity by the Trust Territory

Government [TTG] for tort actions other than negligence came in

1968. 6 TTC 253. (Pub. L. No. 4-7, Aug. 23, 1968). This legislation

may have marked the first time the appellants had the right to

enforce their claims based on intentional torts against the TTG.

The TTG had previously waived its immunity for torts based on

negligence. 6 TTC 251. This waiver applied to claims "accruing on or

after September 23, 1967." 6 TTC 251(c). But any claims against

TTG based upon intentional torts were excluded from the jurisdiction

of the Trust Territory High Court. 6 TTC 252(5). That subsection

states that "The Trial Division of the High Court shall not have

jurisdiction under the foregoing Section 251 of: Any claim arising outof assault, battery, false imprisonment, false arrest . . . ."[3] The

Congress of Micronesia, when passing Section 253, did not repeal

the jurisdictional exclusion of 251. Section 253 only waives

immunity "for tort claims." The Trust Territory High Court Appellate

Division subsequently ruled that the TTG had not waived its

immunity to claims based on intentional torts excluded from the

court's jurisdiction. Salons v. Trust Territory, 8 TTR 141 (App. 1980).

The Federated States of Micronesia Code later codified these section

252 exclusions. 6 F.S.M.C. 602(5). Thus, the appellants' intentional
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tort claims could not be enforced and therefore never accrued. One

1966 Red Chevrolet, 457 F.2d at 1358. Nothing in the Trust Territory

statutes nor in the Federated States of Micronesia Code applies to

these claims.

Therefore, the lower court erred by finding an applicable statute of

limitations that bars these claims.

This analysis also applies to the United States as a defendant. The

lower court held that under Section 5 of Article XV of the Status of

Forces Agreement "that any judgment [under section 174 of the

Compact] presented [to the Court of Appeals for the Federal Circuit

for payment] 'shall be deemed manifestly erroneous' if the claim

would have been barred by the statute of limitations if the claim had

been brought in a court of the United States." Alep, 6 FSM Intrm. at

220.

The tort claims of the appellants could not have been brought

against the United States in any U.S. domestic court, as they

occurred in the Trust Territories. 28 U.S.C. 2680(k) excludes allsuits against the United States for torts if the claim arose in a

foreign country. 28 U.S.C. 2680(k). The U.S. Courts held that the

Trust Territory was a foreign country even though governed by the

United States. See Callas v. United States, [1958] USCA2 210; 253

F.2d 838 (2d Cir.) [Kwajalein], cert. denied, 357 U.S. 936 (1958); see

also Brunell v. United States, 77 F. Supp. 68 (S.D.N.Y. 1948) [Saipan].

Therefore the appellants' claims could not have accrued since they

had no right of enforcement.

The earliest time the appellants' tort claims could have accrued was

on the effective date of the Compact of Free Association, when the

United States waived its sovereign immunity. Thus, the lower court

erred in dismissing the tort claims on the basis that the claims

accrued in 1951 and were therefore barred by the statutes of

limitation.

Waiver of Immunity
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The court also faces the task of interpreting the waiver of immunity

provision of the Compact. These provisions are found in Title I,

Article VII 174 of the Compact [48 U.S.C.S 1681, at 104 (Supp.1990)]. The two specific sections pertinent to this case are 174(c)

and 174(d). Subsection (c) states in part:

(c)Any claim not referred to in Section 174(b) and arising from an

act or omission of the Government of the Trust Territory of the

Pacific Islands or the Government of the United States prior to the

effective date of this Compactshall be adjudicated in the same

manner as a claim adjudicated according to Section 174(d).

[emphasis added]. Subsection (d) in turn provides in part:

"(d) The Governments of the . . . Federated States of Micronesia

shall not be immune from the jurisdiction of the courts of the United

States, and the Government of the United States shall not be

immune from the jurisdiction of the courts of the . . . Federated

States of Micronesia in any case in which the action is based on . . .

a case in which damages are sought for personal injury or death or

damage to or loss of property occurring where the action is brought.

48 U.S.C.S. 1681, at 104 (Supp. 1990) [emphasis added].

The Vienna Convention Regarding Interpretation, Article 31,

paragraph 1[4] states that "(a) treaty shall be interpreted in good

faith in accordance with the ordinary meaning to be given the termsof the treaty in their context and in the light of its object and

purpose." In reading the text of the Compact, the plain language of

the two sections makes clear, first, that the United States has

waived its sovereign immunity. Secondly, the waiver extends to "any

claim" not covered by section 174(b)[5] that arises from "an act or

omission of the Government of the Trust Territory. . . or the

Government of the United States prior to the effective date" of the

Compact that seeks damages for "personal injury or death or
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damage to or loss of property occurring where the action is

brought." It is a general, non-restricted waiver of sovereign

immunity by the United States.

Other provisions of the Compact also demonstrate that the 174

waiver is non-restrictive as to time and type of claim. Three

separate provisions clearly indicate that in other situations the

waiver of sovereign immunity could be restricted if that had been

the intention of the parties. In section 177 which is specific to claims

for loss or damage to property and persons resulting from the

nuclear testing program conducted by the United States the waiver

was restricted by a provision added by the United States Congress.

In Section 103(g) [Title I Approval of Compact; Interpretation of; and

U.S. Policies Regarding, Compact; Supplemental Provisions, 48

U.S.C.S. 1681, at 860] the United States Congress conditioned its

approval of Section 177 of the Compact. That provision states:

It is the intention of the Congress of the United States that the

provisions of section 177 of the Compact of Free Association and the

Agreement between the Government of the United States and theGovernment of the Marshall Islands . . . constitute a full and final

settlement of all claims described . . . and that any such claims be

terminated and barred except insofar as provided for in the Section

177 Agreement.

Compact 103(g). See also Anthelix v. United States, 873 F.2d 369

(D.C. Cir. 1989).

Section 178 provides another example of a limited waiver for claims

in the area of torts by agencies of the United States Government

operating in the Federated States subsequent to the effective date

of the Compact. That section waives immunity but limits the remedy

to that found in 28 U.S.C. 2672 [settlement procedure] and 31

U.S.C. 1304 [funding source]. If the claim can not be settled then it

must be arbitrated under Article II of Title Four of the Compact.

Section 178(d) makes a point of stating that the provisions of 174(d)


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"shall not apply" to tort claims under this section.

Section 174(d) of the Compact with Palau is identical to our

Compact, except it contains a restriction that the subsection "shallapply only to actions based on . . . injuries or losses suffered on or

after the effective date of this Compact."

Finally, the waiver of sovereign immunity by the United States is not

restricted to those claims waived under the Federal Torts Claims Act.

28 U.S.C. 2401, 2672, 2680. If the parties had intended to limit

section 174 to claims under the Federal Torts Claim Act, they would

have said that in section 174.[6] In the words of John Marshall "(t)his

was well understood by the statesmen who framed the (Compact)

and might furnish some reason for omitting to enumerate (any such

restrictions in the Compact)." Cherokee Nation, 30 U.S. at 18, 8 L.

Ed. at 31.

Further, the exceptions listed in 28 U.S.C. 2680 do not apply. If

they did all tort claims arising in the Federated States of Micronesia

would be barred under 28 U.S.C. 2680(k) because it is a foreigncountry. Unless, of course, one follows John Marshall's logic in

Cherokee Nation, and decides that the Federated States of

Micronesia are merely domestic nations within the United States. An

unfortunate decision suffered for the past one hundred and sixty-

five years, to which we are not bound.

The plain language of the Compact of Free Association should stand

and the plaintiffs should be permitted to bring their tort claims forpast wrongs in the lower court. I would reverse the order of the

lower court dismissing the appellants' tort claims and remand the

action on those claims to the lower court for further proceedings.

[1] There is no provision in that code that allowed suits against the

government of the Trust Territory or the United States.
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[2] The United States defendants have all been sued in their official

capacity and therefore the government of the United States is the

real party defendant.

[3] There is some authority that the claims for the torts of conversion

and trespass may have run against the TTG as those tort were not

specifically excluded by the limitation of 252. But they could not

have run against the United States. See infra.

[4] The United States has apparently not adopted this convention.

But the legal rules embodied in Articles 31 and 32 on the

interpretation of treaties were adopted without a dissenting vote at

the Conference and are considered as declaratory of existing law.Louis Henkin et al., International Law Cases and Materials 445 (2d

ed. 1987) [citation omitted].

[5] Subsection (b) covers unpaid judgments and settlements

rendered in the courts and pending administrative claims that

existed at the effective date of the Compact.

[6] There are numerous sections throughout the Compact in which

judicial action and claims procedures have been restricted by

reference to statutes of the United States. In particular 463 states

that any reference to provisions of the United States Code in the

Compact "constitutes the incorporation of the language of such

provision into this Compact . . . ." Thus the intention of the parties is

clear and failure to reference a normally controlling code provision

reveals the intention of the parties that those provision would be

inapplicable.
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alep v us authority keanu sai v clinton invoking cherokee

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