concluding that the United States cannot be sued on a contract entered into by the administrator of the Trust Territory, as the territory is not an agency or instrumentality of the United States
How later courts described this case
- concluding that the United States cannot be sued on a contract entered into by the administrator of the Trust Territory, as the territory is not an agency or instrumentality of the United States
- explaining that United States’ acting as administering power over Pacific Trust Territory does not constitute exercising sovereign authority
- noting the Comptroller General's conclusion that "none of the territorial governments, including the Government of the Trust Territory, are regarded as federal agencies or instrumentalities"
- “The just compensation clause of the Fifth Amendment has, in fact, been applied to takings of property outside the United States, even in the absence of congressional extension of the Constitution to such foreign soil.”
Written by the judges who cited it.
The opinion
Nichols, Judge,
concurring:
I join in the opinion and judgment of the court. I had difficulty with this case and at the outset would not have decided it in the way the majority chooses. I come out now on defendant’s side but it may be helpful to state the reasons why.
There is no doubt in my mind that under the United Nations trusteeship the Congress could have created a Trust Territory government that was, in fact and law, just another agency of the Federal government. Had it done so, a contract-such as we have here, made as this was made, and dealing with the subject this does, could have been enforced in this court, and we could have considered and adjudicated the alleged taking also. On the other hand there is no reason deriving from the source of its legislative power, the trusteeship agreement with the U.N., why the Congress could not have set up the same kind of territorial sovereign it has traditionally set up for civil rule of territories brought under its wing in more usual ways. Our national traditions oppose the former alternative and favor the latter. Normal attributes *370 of such territorial governments are that they do not contract or expropriate property as agents of the United States, but on their own behalf, and to enforce their liabilities, their own consent to be sued, not that of the United States must be obtained. Porto Rico v. Rosaly, 227 U.S. 270 (1913).
The enabling legislation, 48 U.S.C. § 1681 , reads on its face to set up not a typical territorial government but a simple dictatorship. The President can govern the Trust Territory in any way he pleases. The first tier delegation of authority to the Secretary of the Interior in E.0.11021 is equally broad and sweeping. Only in the second tier, the Secretary’s Departmental Order No. 2918, does the structure of a territorial government take form.
As I understand it the Koyal charters setting up the American colonies in the 17th and 18th centuries did not require participation by Parliament. In our system, under our Constitution, chartering territorial governments have traditionally required the participation of the Congress. Art. IV, Sec. 3 of the Constitution seems to visualize this. The differences in the situation of a citizen or subject that depend on whether he is directly ruled from Washington, or by a territorial government, are enormous. I seriously question whether it is possible to confer the character of a territorial government upon a body of United States Government officials, with all its formidable consequences, without the participation of Congress. It would follow that language in a second tier delegation, purporting to do this, would at least fail to have the important implied and collateral results that occur when Congress itself speaks. The agency would remain an agency despite the Secretary’s efforts to make it a territorial sovereign. Its contracts would be contracts of the United States.
The Congress has, however, enacted that the High Commissioner, provided for in Part II, Sec. 1 of Departmental Order No. 2918, shall be appointed by the President and confirmed by the Senate. Public Law 90-16, § 2 , 81 Stat. 15 , 48 U.S.C. § 1681 (a). The legislative history recites enough of the governmental setup under the High Commissioner to show that it all came under the scrutiny of Congress at that time (1967) and was apparently approved except for the *371 modification indicated. Senate Report No. 62 and Conf. Rep. No. 208, 90th. Cong., 1st Sess., 1 U.S. Code Cong. & Administrative News 1158 and ff. (1967). The following permanent code sections also hang pendant upon the structure the Secretary fashioned. I conclude that the purported territorial government can no longer be considered an executive creation pure and simple. This way of Congressional backing into the founding of a civil government no doubt has its explanation in the legitimate interests of the State and Navy Departments in the area, as recognized by E.O. 11021. The plaintiffs herein do not come to grips with the concept of a territorial sovereign in operation here, and do not show clearly how they can recover if a territorial sovereign was in existence and was the ostensible contracting party.
For all these reasons, my initial amazement at the bald text of 48 U.S.C. § 1681 has much abated and I am now prepared to agree that the involved contract was not made by an agency of the United States. The other conclusions of the court are inescapable.