# Petition for Writ of Certiorari — John v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1163%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 559 U.S. 1048 ## Text No. 09- fl) nus PIle'o IN THE Supreme Court of the liter States? * 20 OFFICE OF THE CLERK ISMAEL JOHN, JACKSON ADING, JAMES GIDEON, KUNEO JOSEPH, HARRY JACKSON, BOAZ DAVID, SaM LEVAI, BALIKEN JACKSON, DAVID OBET, KOSIMA JOHANNES, JINET LANGRUS, EBEL JOSEPH, GEORGE YOSHITARO, ISAHO LUTHER, BIKENJI PAUL, NEPTALI PETER, AND MOSES ABRAHAM, FOR THEMSELVES AND FOR A CLASS CONSISTING OF THE PEOPLE OF ENEWETAK, Petitioners, v. UNITED STATES, Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT PETITION FOR A WRIT OF CERTIORARI DAVOR PEVEC SETH P. WAXMAN Bishop Street Tower PAUL R.Q. WOLFSON 700 Bishop Street Counsel of Record Suite 2100 MICAH S. MYERS Honolulu, HI 96813 WILMER CUTLER PICKERING (808) 599-5655 HALE AND DORR LLP 1875 Pennsylvania Ave., NW Washington, DC 20006 (202) 663-6000 — CRAIG ESTES WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 (617) 526-6000 QUESTIONS PRESENTED Petitioners represent the people of Enewetak Atoll in the Marshall Islands, a former trust territory of the United States. The people of Enewetak were removed from their homes and deprived of their property for more than thirty years so that the United States could conduct atomic-weapons testing there. Petitioners pursued claims for just compensation in the federal courts, but their cases were dismissed when the United States and the Marshall Islands government entered into an agreement that those claims should be resolved by an alternate tribunal. That tribunal awarded peti- tioners more than $385,000,000 in compensation, but the United States has failed to pay more than a token amount. Petitioners renewed their efforts to seek just compensation from the United States in federal court, but the Federal Circuit ruled that petitioners’ constitu- tional takings claims were jurisdictionally barred by the agreement between the U.S. and the Marshall Is- lands, and that under the political question doctrine the court could not examine the validity of what it referred to as that agreement’s “settlement” and “espousal” of those claims. The questions presented are: 1. Whether Congress validly barred the courts of the United States from exercising jurisdiction over pe- titioners’ constitutional claims for just compensation. 2. Whether, under the political question doctrine, the court of appeals could not even consider petitioners’ contention that the jurisdictional bar is not valid as a “settlement” or “espousal” of petitioners’ claims. TABLE OF CONTENTS QUESTIONS PRESENTED TABLE OF AUTHORITIES OPINIONS BELOW JURISDICTION RELEVANT CONSTITUTIONAL PROVI- SIONS, TREATIES, AND STATUTES STATEMENT A. The U.S. Government Removes The People Of Enewetak From Their Prop- . The People Of Enewetak Seek Just Compensation In The Federal Courts ............... 5 . The People Of Enewetak Seek Just Compensation In The Alternative Tri- . The People Of Enewetak Return To The Federal Courts To Seek Just I. THIS COURT SHOULD GRANT REVIEW TO MAKE CLEAR THAT CONGRESS MAY NOT STRIP THE COURTS OF JURISDICTION OVER CONSTITUTIONAL TAKINGS CLAIMS A. The Right To Just Compensation May Not Be Eliminated By Statute lv TABLE OF CONTENTS—Continued B. The Court Of Appeals Could, And Should, Have Avoided The Constitu- tional Question Here Through Statu- tory Construction Il. THE GOVERNMENT CANNOT AVOID JUDI- CIAL CONSIDERATION OF PETITIONERS’ CONSTITUTIONAL CLAIMS BY INVOKING THE POLITICAL QUESTION DOCTRINE OR LABELS SUCH AS “SETTLEMENT” OR “ES- A. The Jurisdictional Bar Cannot Be Up- held As A Waiver Or Settlement Of Petitioners’ Claims . The Jurisdictional Bar Is Not Immune From Judicial Review Under The Po- litical Question Doctrine CONCLUSION APPENDIX A: Opinion of the United States Court of Appeals for the Federal Circuit (January 29, 2009) APPENDIX B: Opinion and Order of the United States Court of Federal Claims APPENDIX C: Order of the United States Court of Appeals for the Federal Circuit. denying petition for rehearing (May 27, Vv TABLE OF CONTENTS—Continued APPENDIX D: The Compact of Free Associa- tion Act of 1985, Pub. L. No. 99-239, 99 Ss SE iti cieastcinpateniosoniiicesiinitastiniiaieatdians APPENDIX E: Agreement Between the Gov- ernment of the United States and the Gov- ernment of the Marshall Islands for the Implementation of Section 177 of the Com- pact of Free Association. ...............:ceeccccseseeeseeees APPENDIX F: The Trusteeship Agreement for the Former Japanese Mandated Is- lands, 61 Stat. 3301, T.I.A.S. No. 1665 APPENDIX G: Memorandum of Decision and Order of the Marshall Islands Nuclear Claims Tribunal (April 13, 2000), with I ND sicisicccunntsecinccindnsisniatnsniinnmiocensiine APPENDIX H: Payment order of the Mar- shall Islands Nuclear Claims Tribunal i. __. ERE Rrra era renee eae APPENDIX I: Payment order of the Marshall Islands Nuclear Claims Tribunal (February i IEE Uihccrssesdeatacsciiscideniins tbacboiulahaanadadaiaiciaiiseabaipanininn v1 TABLE OF AUTHORITIES CASES Page(s) Aguilar v. U.S. Immigration & Customs En forcement Division, 510 F.3d 1 (1st Cir. Se IS ETRE ST eC a 15 Antolok v. United States, 873 F.2d 369 (D.C. LER ect Oa a a 20, 29 Arreola-Arreola v. Ashcroft, 383 F.3d 956 (9th EEE EE AN Oe a 15 Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517 (D.C. Cir. 1984) .................00- 24 Atamirzayeva v. United States, 524 F.3d 1320 SI I i scccpudinnineisnnnemeniios 17 Baker v. Carr, 369 U.S. 186 (1962)............cccccscscscscees 27, 28 Baltimore & Ohio Railroad Co. v. United States, 298 U.S. 349 (1986) ..........ccccscscccssccees 10, 13, 15 Bartlett v. Bowen, 816 F.2d 695 (D.C. Cir. 1987) ....14, 15 Battaglia v. General Motors Corp., 169 F.2d Sa os sdieusdnmasitisenslesoeniion 15 Boumediene v. Bush, 128 S. Ct. 2229 (2008).................. 27 Califano v. Yamasaki, 442 U.S. 682 (1979) ...............00 18 Chickasaw Nation v. United States, 534 U.S. a taledadlias 21 City of Rohnert Park v. Harris, 601 F.2d 1040 I eeuainaeatannanniies 23 City of Tacoma v. Taxpayers of Tacoma, Se Fs Se FOIE ctnesnesecniesseucentienssonen ssldlecenesiadieoaieibae 23 Vil TABLE OF AUTHORITIES—Continued Page(s) Dames & Moore v. Regan, 453 U.S. 654 anal 24, 27, 28 First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304 (1987) ......... 13, 14 Graham & Foster v. Goodcell, 282 U.S. 409 SETI sccssncdecahieuencinsiekcestoreecianeaiaaidemeshceaipaaieaieetaitlaiaainainheleaats 14 INS v. Chadha, 462 U.S. 919 (1988)............... eae 22, 27 INS v. St. Cyr, 583 U.S. 289 (2001) ....cccccccccssscccsssccccseesees 18 Jacobs v. United States, 290 U.S. 13 (1983)............. 13, 16 Japan Whaling Ass’n v. American Cetacean OCS, GTS Us Te. TRE CGI cncscnscvcccsncocesesnccccvscevsscsees 29 Johnson v. Rolison, 415 U.S. 361 (1974).................. 14,18 Juda v. United States, 6 Cl. Ct. 441 (1984)......... anaaiaaee 17 Local No. 98, International Ass’n of Firefight- ers v. City of Cleveland, 478 U.S. 501 (1986).......... 23 Martin v. Wilks, 490 U.S. 755 (1989) ........2..2....2..22.c00ee0-- 22 Medellin v. Texas, 128 S. Ct. 1346 (2008)..................-.2+. 26 Monongahela Navigation Co. v. United States, ey Ce IIE sitcnicccactsctepideieipnsnianapeabacininnanan 10, 11, 16 New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance i, BE erie te CI drcicestenntinsccsncsnnnctscncetentcincictions 19 Nitol v. United States, 7 Cl. Ct. 405 (1985).................... 17 People of Enewetak v. United States, 864 F.2d BO API iacincesscnsscsseiensuhaisacincnsibaienaissetieadattaniaianinantiagss 5, 7, 20 Vill TABLE OF AUTHORITIES—Continued Page(s) People of Saipan v. Department of Interior, 356 F’. Supp. 645 (D. Haw. 1973)................ | 25 Peter v. United States, 13 Cl. Ct. 691 (1987)... Peter v. United States, 6 Cl. Ct. 768 (1984)......0.0...000000.... 5 Preseault v. ICC, 494 U.S. 1 (1990)... _ 18 Regional Rail Reorganization Act Cases, 419 U.S. 102 (1974) ........... aaa lace ache cemeniie 18, 20 Reid v. Covert, 354 U.S. 1 (1957) .............00................27, 29 Russian Volunteer Fleet v. United States, gtk = 5): } Sen ciaiadaiaaiediaeiebitananedeaies 28 Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006)........... 29 Seaboard Air Line Railway Co. v. United States, 261 U.S. 299 (1923) .......cccccccccccccccccscccceee ae St. Joseph Stock Yards Co. vy. United States, Se a aetts UE IT iistrccsetapinsaninadasddetesenencenadunssnniitcnetiesin 16 Taylor v. Sturgell, 128 S. Ct. 2161 (2008).....................4 23 Town of Newton v. Rumery, 480 U.S. 386 fat NSE ee ae One ea een ee 22 United States v. Clarke, 445 U.S. 253 (1980)................. 13 United States v. Pink, 315 U.S. 208 (1942)....000000.... 10, 26 United States v. Williams, 128 S. Ct. 1830 a elealainl 19 Webster v. Doe, 486 U.S. 592 (1988) .....................--00+. a Weinberger v. Salfi, 422 U.S. 749 (1975) 20.2.0... -eeeeeeee 18 ix TABLE OF AUTHORITIES—Continued Page(s) World Communications Corp. v. Micronesian Telecommunications Corp., 456 F. Supp. DES COD, BRR Ba tt etttteststeccsceneconsccesecccccececcee 25 Youngstown Sheet & Tube Co. v. Sawyer, ED UE. BF Ce ee eiettttaensasteccscecccccecccecceees 28 CONSTITUTIONAL AND STATUTORY PROVISIONS U2, Coc, SN a ca rceetcccecocecccccccees 1,138 28 U.S.C. © TG cccccvececeneeseee I ccetscsascctescnccccccceseces l © Ta iceccessocscensneeeeee EE intaansnensteseccecsceccccccccece 12 © AE vicccncscccessetenieneennnEIEE I aisaintasnscesescececcceresccccces 12 48 U.S.C. 9 AGRE cccccnnseneattettnncedcenscccccscce atanbanes 24 The Compact of Free Association Act of 1985, Pub. L. No. 99-239, 99 Stat. 1770 (1986)......... passim INTERNATIONAL AGREEMENTS The Trusteeship Agreement for the Former Japanese Mandated Islands, 61 Stat. 3301, TD LaPAcide BOG, TEE mI aetailienstbenscocedeocesecesescc00e passim The Agreement Between the Government of the United States and the Government of the Marshall Islands for the Implementa- tion of Section 177 of the Compact of Free ASBOCHIEION, ccsceccccncsentatnteeetineteercereseerse0ee 6, 8,19 OTHER AUTHORITIES Henkin, Louis, Foreign Affairs and the Consti- Destine Che el, Ti iictttiticsnccecencecececcseccecesccese 25 OPINIONS BELOW The opinion of the United States Court of Federal Claims (App. 11a) is reported at 77 Fed. Cl. 788. The opinion of the United States Court of Appeals for the Federal Circuit (App. 1a) is reported at 554 F.3d 996. JURISDICTION The judgment of the court of appeals was entered on January 29, 2009. A timely petition for rehearing was denied on May 27, 2009. On July 28, 2009, the Chief Justice extended the time for filing a petition for a writ of certiorari to September 24, 2009, and on September 14, 2009, the Chief Justice further extended the time for filing to October 23, 2009. This Court has jurisdic- tion under 28 U.S.C. § 1254(1). RELEVANT CONSTITUTIONAL PROVISIONS, TREATIES, AND STATUTES 1. The Fifth Amendment to the United States Yonstitution provides in relevant part: “...nor shall pri- vate property be taken for public use, without just compensation.” 2. The following are set forth in the appendix: a. The Compact of Free Association Act of 1985, Pub. L. No. 99-239, 99 Stat. 1770 (1986) (App. 117a); b. The Agreement Between the Government of the United States and the Government of the Mar- shall Islands for the Implementation of Section 177 of the Compact of Free Association (App. 261a); and c. The Trusteeship Agreement for the For- mer Japanese Mandated Islands, 61 Stat. 3301, T.I.A.S. No. 1665 (1947) (App. 281a). 2 STATEMENT This case presents an issue essential to the security of all property owners: whether the government may evade the constitutional guarantee of just compensa- tion for the taking of private property by stripping the courts of jurisdiction over any claim that it has not pro- vided just compensation for the taking. In the decision below, the Federal Circuit ruled that it had been de- prived of statutory jurisdiction to entertain petitioners’ constitutional claims for just compensation, notwith- standing this Court’s decisions stressing that the con- stitutional requirement of just compensation for a tak- ing is self-executing and that it is for the judiciary to decide whether compensation for a taking is constitu- tionally adequate. The Federal Circuit further sug- gested that petitioners’ constitutional claims were barred by a “settlement” and refused to examine the validity of that settlement under the “political ques- tion” doctrine, even though petitioners themselves never entered into any such settlement and the only agreement to dismiss petitioners’ claims was between the United States government and one of its own terri- tories. Without this Court’s review, the government will have effectively insulated itself from the funda- mental constitutional requirement that it pay just com- pensation for the taking of property. A. The U.S. Government Removes The People Of Enewetak From Their Property Petitioners are inhabitants of Enewetak Atoll, one of several atolls and islands making up the Marshall Is- lands, located in the central Pacific Ocean. Enewetak Atoll includes 40 islands and encloses a lagoon of roughly 388 square miles. C.A. App. 79, 86 (4417, 39). 3 The Marshall Islands were occupied by the United States during World War II. Together with the rest of Micronesia, in 1947 the Marshall Islands were brought into the United Nations trusteeship system with the United States as administering authority. The Trus- teeship Agreement gave the United States “full powers of administration, legislation, and jurisdiction” over the Trust Territory. App. 282a-288a (Art. 3). It also rec- ognized, in Article 6, that the United States bore fidu- ciary obligations to the people of the Trust Territory to “protect the inhabitants against the loss of their land and resources” and to safeguard their “rights and fun- damental freedoms.” App. 284a. The Trusteeship Agreement further recognized the Marshallese as U.S. nationals, providing that the United States “shall afford diplomatic and consular protection to inhabitants of the trust territory when outside the territorial limits of the trust territory or of the territory of the administering authority.” App. 287a (Art. 11). Shortly thereafter, the United States government identified the Marshall Islands as sites for atomic weapons testing. In December 1947, the government removed all of the people of Enewetak from their homes and transferred them to Ujelang Atoll, the most isolated of the inhabited atolls in the Marshall Islands. Despite government assurances that their forced re- moval would be temporary, the people of Enewetak spent the next 33 years on Ujelang. During that time, ' The government also removed the inhabitants of the Bikini Atoll to another island so that it could conduct atomic weapons tests on Bikini. The residents of Bikini have brought a case similar to this one, and in the same opinion that disposed of the Enewetak case, the Federal Circuit disposed of the Bikini case. The Bikini plaintiffs have filed a separate petition for certiorari. 4 their only contact with the rest of the world was through infrequent visits from supply ships, and they suffered (in the words of the Interior Department) “grave privations, including periods of near starvation.” C.A. App. 95-98 (§ 163-75); see also App. 329a (decision of Nuclear Claims Tribunal) (noting that petitioners had undergone “famine and hunger, near starvation and death from illness, food shortage and the limita- tions of the environment on Ujelang (fishing/collecting), the polio epidemic, the measles epidemic, [and] the rat infestation”). Between April 1948 and August 1958, Enewetak was the site of 48 atomic and hydrogen bomb tests, which devastated the islands and lagoon, left massive amounts of radioactive material on them, and contami- nated much of the Atoll. During the 1960s and 1970s, Enewetak was also used for missile testing, which scat- tered toxic beryllium over one of the Atoll’s principal islands. C.A. App. 98-100 (¢ 76-82). In 1972, the United States announced that it would return Enewetak Atoll to its people. In October 1973, the Atomic Energy Commission published a radiation survey and proposed a nuclear cleanup operation for the Atoll. From 1972 to 1977, various federal agencies engaged in studies and planning for radiological cleanup and rehabilitation programs. From May 1977 to April 1980, the government attempted to remediate Enewetak Atoll. C.A. App. 102-103 (¢%89-91). In Oc- tober 1980, the people of Enewetak were finally per- mitted to return. C.A. App. 103 (491). Much of the Atoll, however, remains uninhabitable, and some of it was completely vaporized by the weapons testing. See App. 290a. D B. The People Of Enewetak Seek Just Compen- sation In The Federal Courts In September 1982, the people of Enewetak brought an action in the Claims Court seeking compen- sation for the taking of the Atoll and stating claims for the breach of an implied-in-fact contract. The Claims Court dismissed the takings claim as time-barred,’ but declined to dismiss one of the contract claims. See Pe- ter v. United States, 6 Cl. Ct. 768 (1984). While that suit was pending, the United States and the government of the Marshall Islands—over which the United States at that time retained control as trust administrator—negotiated a Compact of Free Associa- tion (“Compact”). The Compact recognized the Repub- lic of the Marshall Islands (RMI) as self-governing in some respects, but retained for the United States “full authority and responsibility for security and defense matters in or relating to the Marshall Islands.” App. 222a-223a (§ 311(a)). Congress approved the Compact in a joint resolution (the “Compact Act”) in December 1985, the President signed the Compact Act in January 1986, and the Compact took effect on October 21, 1986. See Pub. L. No. 99-239, 99 Stat. 1770 (1986); C.A. App. 86 (438); App. 117a-260a. In Section 177(a) of the Compact, the United States “accept{ed] the responsibility for compensation owing to citizens of the Marshali Islands ... for loss or damage ? The people of Enewetak appealed the Claims Court’s con- clusion that this claim was untimely. Separate Brief of Appellants, People of Enewetak v. United States, No. 88-1208 (Fed. Cir. Apr. 15, 1988). The Federal Circuit affirmed the Claims Court on other grounds, and did not address the question of timeliness. People of Enewetak v. United States, 864 F 2d 134, 136 n.4 (Fed. Cir. 1988). 6 to property and person ... resulting from the nuclear testing program.” 99 Stat. 1812, App. 204a. Section 177(b) provided for the United States and the Marshall Islands government to enter into a separate agreement (the “Section 177 Agreement”) for several purposes, including the “just and adequate settlement” of all “claims which have arisen in regard to the Marshall Is- lands and its citizens and which have not as yet been compensated or which in the future may arise.” I/d. The “Section 177 Agreement” between the United States and the Marshall Islands government termi- nated all jurisdiction in United States courts over the Marshall Islanders’ claims based on nuclear testing and channeled all such claims to an alternative tribunal, the Nuclear Claims Tribunal (NCT). The NCT was em- powered to “render final determination upon all claims ... which are based on, arise out of, or are in any way related to the Nuclear Testing Program,” including claims for injury, death, and damage to property. App. 271a (Art. IV, § 1(a)). The Section 177 Agreement des- ignated $45.75 million for “whole or partial payment” of NCT awards. App. 267a (Art. II, § 6(c)). Article X of the Section 177 Agreement, titled “Es- pousal,” provided that the Agreement “constitutes the full settlement of all claims, past, present and future, of the Government, citizens and nationals of the Marshall Islands which are based upon, arise out of, or are in any way related to the Nuclear Testing Program ... includ- ing any of those claims which may be pending or which may be filed in any court or other judicial or adminis- trative forum, including the courts of the Marshall Is- lands and the courts of the United States and its politi- cal subdivisions.” App. 276a-277a. Article XII, titled “United States Courts,” provides that “{a]ll claims de- scribed in Articles X and XI of this Agreement shall be 7 terminated. No court of the United States shall have jurisdiction to entertain such claims, and any such claims pending in the courts of the United States shall be dismissed.” App. 278a. Section 103(g)(1) of the Compact Act contains similar provisions, see 99 Stat. 1782, App. 144a (“any such claims shall be terminated and barred except insofar as provided for in the Section 177 Agreement”), and Congress expressly “ratified and approved” the Section 177 Agreement in Section 103(g)(2) of the Compact Act, 99 Stat. 1782, App. 144a.’ In light of the Compact, the Compact Act, and the Section 177 Agreement, the Claims Court determined that Congress had withdrawn its jurisdiction over the Enewetak people’s claims, but left open the possibility that they could return to court to challenge the ade- quacy of the compensation received through the NCT process. Peter v. United States, 13 Cl. Ct. 691, 692 (1987). The Federal Circuit affirmed the dismissal of the Enewetak claims solely on the ground that the Sec- tion 177 Agreement withdrew all federal court jurisdic- tion over those claims and channeled them into the al- ternative tribunal. People of Enewetak v. United States, 864 F.2d 134, 136 (Fed. Cir. 1988). The Federal Circuit concluded that “appellants’ attack on the ‘ade- quacy’ of the alternative procedure provided by Con- gress for compensation of their claims was premature” and that it was “unpersuaded that judicial intervention is appropriate at this time on the mere speculation that the alternative remedy may prove to be inadequate.” Id. (emphases added). > Section 175 of the Compact also states that the Section 177 Agreement “shall have the force of law.” 99 Stat. 1812, App. 203a. 8 C. The People Of Enewetak Seek Just Compen- sation In The Alternative Tribunal In 1990, the people of Enewetak filed a claim in the NCT, as provided for by the Section 177 Agreement. C.A. App. 111 (4122). Over ten years later, the NCT issued a final decision awarding $385,894,500, of which $244 million was for the past and future loss of Enewetak Atoll, $107.81 million was for restoration costs for a radiological cleanup of the Atoll, and $34,084,500 was for hardships suffered as a result of the forced relocation to Ujelang. C.A. App. 113-118 (44128- 146). The award included an offset for prior compensa- tion paid by the United States. C.A. App. 116 (4141). In 2002 and 2003, the NCT paid the people of Enewetak a total of $1,647,483. That amount repre- sents less than 1% of their actual award. The NCT has not made a payment since February 2003, and has ex- hausted the $45.75 million earmarked in the Section 177 Agreement. C.A. App. 119 (44148-151). In January 2003, former Attorney General Richard Thornburgh prepared a report on the NCT in which he concluded that “the $150 million trust fund initially established in 1986 is manifestly inadequate to fairly compensate the inhabitants of the Marshall Islands.” C.A. App. 120 (44 152-154). Article 1X of the Section 177 Agreement provides that the Marshall Islands government may petition Congress for additional funds for the NCT based on changed circumstances. App. 276a. The Marshall Is- lands government presented a “changed circum- stances” petition to Congress in September 2000, seek- ing additional funds principally based on new radiation standards adopted by the United States that lowered the recommended level of exposure. C.A. App. 120-124 9 (47155-164). In January 2005, the State Department recommended rejection of the petition. Congress has taken no action to date. C.A. App. 125 (44 166-168). D. The People Of Enewetak Return To The Fed- eral Courts To Seek Just Compensation In light of Congress’s manifest failure to provide the residents of Enewetak with just compensation for their property, petitioners filed suit in the Court of Federal Claims in 2006. Two counts of the complaint seek to revive the original claims for the taking of Enewetak and for breach of implied contract that were brought in 1982 but were dismissed on the assumption (which proved illusory) that Congress had created an adequate alternate tribunal. Two other counts seek just compensation for the taking of those original tak- ing and contract claims, based on the fact that Congress diverted those claims into the NCT process but then failed to provide adequate funding for the NCT award.‘ The Court of Federal Claims dismissed all of the counts on various grounds. App. 77a-96a. The Federal Circuit affirmed the dismissal The panel concluded that Congress had deprived it of juris diction to entertain the Enewetak people’s claims, in- cluding their takings claims, despite Congress’s mani- fest failure to provide more than token funding for those claims. The court also held that the Section 177 * A fifth count, based on the taking of Enewetak, similarly al leges that the NCT process into which the underlying claims were diverted failed to provide constitutionally adequate compensation, and a sixth seeks damages for breach of fiduciary duties created by an implied-in-fact contract for just compensation established in the Compact Act and its related agreements. 10 Agreement constituted an unreviewable “settlement” of petitioners’ claims related to nuclear testing in the Marshall Islands, even though petitioners were not party to any such settlement. App. 7a, 9a. In concluding that it lacked statutory jurisdiction to hear petitioners’ claims, the court found controlling and unambiguous language in the Section 177 Agree ment directing that “[n]jo court of the United States shall have jurisdiction to entertain such claims” (relat- ing to the atomic testing programs). App. 6a-8a. Even though this Court has stressed that the constitutional guarantee of just compensation is self-executing and that Congress may not set arbitrarily low ceilings on the amount of compensation due for such takings, see Baltimore & Ohio R.R. Co. v. United States, 298 U.S. 349, 368 (1936); Monongahela Nav. Co. v. United States, 148 U.S. 312, 327 (1898), the Federal Circuit still found that its jurisdiction over petitioners’ takings claims had been withdrawn, and it declined to construe the Section 177 Agreement in a manner that would have avoided the constitutional question raised by such aruling. App. 8a. The Federal Circuit also noted that “this case in- volves a settlement negotiated between the United States and the Government of the Marshall Islands.” App. 9a. Although petitioners are not parties to any settlement of their claims against the United States, the court stated that “(t]he power to conduct foreign relations includes ... the authority to enter into an in- ternational claims settlement on behalf of nationals.” Id. (citing United States v. Pink, 315 U.S. 203 (1942)). The court also referred to the “settlement” of petition- ers’ claims as an “espousal” of those claims (between the U.S. and Marshall Islands governments) and ruled that “the validity of that espousal ... raises a political 11 question beyond the power of this or any court to con- sider.” /d. (again citing Pink). The court reached that conclusion even though, when the Marshall Islands government entered into the Section 177 Agreement with the United States, it was not a foreign sovereign but remained under the control of the United States. Finally, the court remarked that, although “its sense of justice, of course, makes it difficult to turn away from a case of constitutional dimension,” nonetheless “this court cannot act without jurisdiction,” and “this court cannot hear, let alone, remedy a wrong that is not within its power to adjudicate.” I/d. REASONS FOR GRANTING THE PETITION More than 100 years ago, this Court remarked that “in any society the fullness and sufficiency of the secu- rities which surround the individual in the use and en- joyment of his property constitute one of the most cer- tain tests of the character and value of the govern- ment.” Monongahela Nav. Co. v. United States, 148 U.S. 312, 324 (1893). This case demonstrates the endur- ing wisdom of that observation. Petitioners, deprived completely of the use and enjoyment of their ancestral lands for more than 30 years, have sought only the just compensation for that taking to which the Fifth Amendment entitles them. The government has re- sponded by providing only token payment for petition ers’ property— less than one percent of its true value— and has precluded petitioners from seeking any judicial remedy for the remainder. The Federal Circuit’s decision—that Congress may bar the courts from entertaining constitutional claims for just compensation—cannot be correct. At a mini- mum, that decision raises grave constitutional ques- tions fundamental to the protection of property rights, 12 which could and should have been avoided through statutory construction. The Federal Circuit’s decision is all the more important because that court has exclu- sive jurisdiction over appeals from decisions of the Court of Federal Claims, see 28 U.S.C. § 1295(a)(3), which in turn has exclusive jurisdiction under the Tucker Act over virtually all claims that the United States has taken property without just compensation, see id. § 1491(a)(1). Absent review by this Court, the Federal Circuit’s conclusion that Congress can by stat- ute bar judicial consideration of a constitutional just compensation claim will effectively be the last word. The court of appeals’ decision is no less problematic because it concluded that the jurisdictional bar was based on a “settlement” or “espousal,” the validity of which it declined to examine as a “political question.” That reasoning itself raises serious constitutional con cerns and warrants this Court’s review. Petitioners never signed any settlement with the United States; the only relevant agreement was one between the United States government and an entity then under its control, the Marshall Islands government. To rule, as the Federal Circuit did, that the validity of this sup- posed “espousal” is nonjusticiable is to hold, in effect, that the United States government may insulate itself from constitutional claims by negotiating with its own dependency. This Court’s review is warranted to make clear that the Fifth Amendment’s command of just compensation may not be evaded in this manner. 13 I THis COURT SHOULD GRANT REVIEW TO MAKE CLEAR THAT CONGRESS MAY Nor STRIP THE Courts OF Ju- RISDICTION OVER CONSTITUTIONAL TAKINGS CLAIMS A. The Right To Just Compensation May Not Be Eliminated By Statute The Constitution requires the United States to pay just compensation whenever it takes private property for public use. U.S. Const. amend. V (*...nor shall pri- vate property be taken for public use, without just compensation”). This Court has never suggested that the government may avoid that constitutional com- mand by refusing to pay the full amount of just com- pensation due and barring the courts from enforcing its obligation to do so. To the contrary, this Court has made clear that “(t]he just compensation clause may not be evaded or impaired by any form of legislation.” Baltimore & Ohio R.R Co. v. United States, 298 U.S. 349, 368 (1936) (emphasis added). This Court has repeatedly stressed that the mght to just compensation arises from the Constitution itself. That mght requires no additional statutory enactment and admits no possibility of statutory nullification. “Just compensation is provided for by the Constitution and the nght to it cannot be taken away by statute.” Seaboard Air Line Ry. Co. v. United States, 261 U.S. 299, 304 (1923). It is not even necessary for the gov- ernment to waive sovereign immunity for the courts to entertain just compensation claims, for it has long been recognized that the constitutional requirement of just compensation is “self-executing.” See First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304, 315 (1987); United States v. Clarke, 445 U.S. 253, 257 (1980); see also Jacobs v. United States, 290 U.S. 13, 16 (1933) (“Statutory recognition was not 14 necessary. A promise to pay was not necessary. Such a promise was implied because of the duty to pay im- posed by the Amendment.”). “{I}t is the Constitution that dictates the remedy for interference with property rights amounting to a taking.” First English, 482 U.S. at 315 n.9. Just as Congress may not eliminate the protections of the Just Compensation Clause directly, it may not do so indirectly by jurisdiction-stripping. The government may not cloak itself with immunity for its unconstitu- tional actions by barring judicial review of that conduct. This Court has frequently recognized this principle when it has cautioned against any reading of a statute that would deprive the courts of authority over consti- tutional claims. See, e.g., Webster v. Doe, 486 U.S. 592, 603 (1988); Johnson v. Robison, 415 U.S. 361, 373-374 (1974); see also Graham & Foster v. Goodcell, 282 U.S. 409, 431 (1931) (stressing that, if “Congress did not have the authority” to reach a particular substantive result, “it could not be concluded that the Congress could accomplish the same result by denying to the taxpayers all remedy”). Other courts of appeals have recognized that the government may not insulate its unconstitutional con duct through jurisdictional bars. “In considering the constitutional issue, it is important to recall that, in the entire history of the United States, the Supreme Court has never once held that Congress may foreclose all ju dicial review of the constitutionality of a congressional enactment.” Bartlett v. Bowen, 816 F.2d 695, 104 (D.C. Cir. 1987). Thus, when presented with that very ques tion, the D.C. Circuit had “little doubt that such a limi- tation on the jurisdiction of both state and federal courts to review the constitutionality of federal legisla tion ... would be [an] unconstitutional infringement of 15 due process.” Jd. at 703 (internal quotation marks omit- ted; alterations in original). Similarly, the First Circuit has observed that, while Congress has “the power to regulate the jurisdic- tion of the lower federal courts ... and the Supreme Court has not found constitutional difficulties in con- gressional abrogation of certain remedies as long as others are left intact .... Congress probably cannot nul- lify rights guaranteed in the Constitution by prohibit- ing all remedies for the violation of those rights.” Aguzi- lar v. Immigration & Customs Enforcement Div., 510 F.3d 1, 17-18 (1st Cir. 2007) (emphasis added). And the Second Circuit has stressed that “the exercise of Con- gress of its control over jurisdiction is subject to com pliance with at least the requirements of the Fifth Amendment. That is to say, while Congress has the undoubted power to give, withhold, and restrict the ju- risdiction of courts other than the Supreme Court, it must not so exercise that power as to deprive any per son of life, liberty or property without due process of law or to take private property without just compensa- tion.” Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir. 1948); see also Arreola-Arreola v. Ashcroft, 383 F.3d 956, 963 (9th Cir. 2004), overruled on other grounds by Morales-Izquierdo v. Gonzales, 486 F.3d 484, 497 (9th Cir. 2007) (en banc). This Court has also long made clear that, “when [a property owner] appropriately invokes the just com- pensation clause, he is entitled to a judicial determina- tion of the amount.” Baltimore & Ohto R.R. Co., 298 U.S. at 368 (emphasis added). Although Congress may require claimants to pursue their claims for just com pensation in the first instance before an alternate tri bunal, property owners have the right, under the Con- stitution, to seek a judicial remedy should the compen 16 sation awarded by that tribunal be inadequate. Thus, this Court has long insisted that Congress may not fix the amount that a property owner will receive in com- pensation and has reserved that determination for the courts. “The constitution has declared that just com- pensation shall be paid, and the ascertainment of that is a judicial inquiry.” Monongahela Nav. Co., 148 U.S. at 327; see also St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 51-52 (1936). Under these settled principles, the federal courts were obligated to take jurisdiction over petitioners’ claims. The United States government took petition- ers’ property, and they were entitled to just compensa tion for it. Although Congress formally acknowledged the responsibility of the United States to compensate petitioners for the taking of their property, see pp. 5-6, supra, and although Congress set up an alternate tri- bunal in which petitioners might present their claims for compensation, the government has refused to make any provision for payment of that tribunal’s award be- yond a token amount. The government’s refusal to pay compensation to petitioners, combined with its decision to bar the courts of the United States to petitioners, surely constitutes a violation of the Fifth Amendment no less than the government’s refusal to pay interest on a compensation award, see Jacobs, 290 U.S. at 17, or its refusal to pay for one of the sticks in the bundle of rights that it has taken, see Monongahela Nav. Co., 148 U.S. at 328-329 (right to collect tolls).’ > The government argued in the Federal Circuit that peti tioners could not invoke the Just Compensation Clause because this case supposedly involves foreign-owned property located out side the United States. Gov’t C.A. Br. 51-58. The court of appeals 17 B. The Court Of Appeals Could, And Should, Have Avoided The Constitutional Question Here Through Statutory Construction The court of appeals’ decision that Congress per- missibly closed the courts to petitioners’ constitutional takings claims is all the more unfortunate because the Federal Circuit could easily have avoided such a ruling. did not address that contention, which is clearly wrong. First, several petitioners have U.S. citizenship. Second, the people of Enewetak were U.S. nationals when they were removed from their property in 1947, when they first presented their federal claims for the taking of their property, and when the Section 177 Agreement terminated their takings claims pending in the U.S. courts in 1986. Enewetak was under US. jurisdiction at all of those times. At a minimum, therefore, petitioners have a substan- tial connection to the United States that allows them to invoke the Just Compensation Clause—as the Claims Court previously held. See Juda v. United States, 6 CL Ct. 441, 458 (1984); see also Nitol v. United States, 7 Cl. Ct. 405, 415 (1985) (citing Juda and noting that “[i}t was there concluded that the just compensation clause of the Fifth Amendment would extend to include a taking that re sulted from the United States nuclear testing program in the Mar shall Islands.”), cf. Atamirzayeva v. United States, 524 F.3d 1320, 1328-1329 (Fed. Cir. 2008) (“In Juda and Nitol, the court found that the plaintiffs were covered by the just compensation clause ... based on the ‘unique relationship’ between the United States and the Trust Territory Government and the relationship between the United States and the plaintiffs.”). Third, at the very outset of the trusteeship period, the United States acknowledged its obligation to extend constitutional rights. See Memorandum for the Presi dent, David E.. Lilienthal (Nov. 25, 1947), C_A. App. 143-144 (“To insure that the United States meets fully its international obliga- tions under the Charter of the United Nations and in connection with the Trusteeship Agreement ... special provisions will be made for local inhabitants as follows: 1. They will be accorded all rights which are the normal constitutional rights of citizens under the Constitution, but will be dealt with as wards of the United States for whom this country has special responsibilities.”). 18 This Court has repeatedly made clear that interpreta- tions that call into question the constitutionality of an Act of Congress are to be avoided if at all possible. “[I]}f a construction of the statute is fairly possible by which [a serious doubt of constitutionality] may be avoided, a court should adopt that construction.” Califano v. Ya- masaki, 442 U.S. 682, 693 (1979). That principle of avoiding constitutional questions has particular force when the jurisdiction of the federal courts is at stake. See INS v. St. Cyr, 583 U.S. 289, 299- 300 (2001). Even when interpreting statutes with seemingly sweeping limitations on jurisdiction, this Court has adopted interpretations preserving jurisdic- tion over constitutional questions. See Weinberger v. Salfi, 422 U.S. 479, 762 (1975); Johnson v. Robison, 415 U.S. at 366-367. And specifically in the context of the Just Compensation Clause, the Court has stressed that congressional enactiuents should not be interpreted as barring a claimant’s judicial remedy whenever a read- ing preserving that remedy is possible. See Preseault v. ICC, 494 U.S. 1, 11-17 (1990); Regional Rail Reor- ganization Act Cases, 419 U.S. 102, 133-136 (1974). Had the court of appeals heeded these principles, it readily could have avoided a reading of the Section 177 Agreement that precludes jurisdiction over petitioners’ claims. Although the court of appeals dismissed con- cerns about constitutional avoidance by insisting that “Itjhe language of the Section 177 Agreement presents no ambiguities whatsoever” (App. 8a), in fact, the statu- tory language at issue here is no more clear-cut than language that has elsewhere been found not to deprive federal courts of jurisdiction over constitutional claims. Article XII of the Section 177 Agreement provides that “{ajll claims described in Articles X and XI of this Agreement shall be terminated,” and that “(n]Jo court of 19 the United States shall have jurisdiction to entertain any such claims{.}” App. 278a (emphasis added). Arti- cle X, in turn, refers to all claims “which are based upon, arise out of, or are in any way related to the Nu- clear Testing Program.” App. 276a. Several of petitioners’ claims, however, do not “arise out of,” and are not “based on” or “related to,” the Nuclear Testing Program itself.° Rather, they arise from the government’s failure to provide ade- quate funding to pay the NCT’s award to petitioners— an award made after petitioners in good faith invoked the alternate remedy provided by Congress, presented their case to that tribunal, and received a decision that they were entitled to compensation for the decades- long loss of their property. Petitioners’ claims based on the nuclear testing program were presented to and de- cided by the NCT, which determined that those were valid, compensable claims. What petitioners seek now in Counts III, IV, and V of their complaint is not com- pensation for the government’s taking of their land during the nuclear testing program, but compensation for the government’s taking of their claims, decades after the nuclear testing program ended, when the gov- ernment closed the federal courts to those claims and refused to pay the NCT’s award. ® “Related to” is broad terminology, but it is not unlimited. See N.Y. State Conf. of Blue Cross & Blue Shield Plans v. Travel- ers Ins. Co., 514 U.S. 645, 655 (1995). That is especially true where, as here, it is used in conjunction with two other, narrower terms (“based on” and “arising out of”) and thus presumably was intended to share their characteristics. See, e.g., United States v. Williams, 128 S. Ct. 1830, 1839-1840 (2008). 20 This case thus resembles the Regional Rail Reor- ganization Cases, where the Court considered whether two sets of provisions in the Regional Rail Reorganiza- tion Act (“Rail Act”) took the property of certain rail- roads’ creditors and, if so, whether they were entitled to seek compensation in the Court of Claims under the Tucker Act for any constitutional deficiency in the compensation they received through a special process set up under the Rail Act. The Court concluded that the Rail Act did not deprive the creditors of an ultimate Tucker Act remedy, in significant part because “(tJhere are clearly grave doubts whether the Rail Act would be constitutional if a Tucker Act remedy were not avail- able as compensation for any unconstitutional erosion not compensated under the Act itself.” 419 U.S. at 134; see also id. at 149. Moreover, two circuits—including the Federal Cir- cuit itself—previously indicated that the language at issue here would allow the people of Enewetak and oth- ers similarly situated to return to the federal courts to challenge the adequacy of the compensation received through the alternative process. See People of Enewetak, 864 F.2d at 136; Antolok v. United States, 873 F.2d 369, 378 (D.C. Cir. 1989) (“If there is an un- compensated or inadequately compensated taking, then plaintiffs’ remedy is in the Claims Court.”). The court of appeals’ reading also places the Sec- tion 177 Agreement in conflict with itself. Section 177 of the Compact—the very provision that the Section 177 Agreement is designed to implement—not only un- ambiguously assigns responsibility for the loss or dam- 21 age to property to the United States government,’ but explicitly states that the purpose of the Section 177 Agreement is to provide for “the just and adequate set- tlement of all such claims which have arisen.” Compact § 177(b), App. 204a. The interpretation of Article XII adopted by the court of appeals thus undermines the central purpose of Section 177. The court should have rejected an interpretation of an agreement that is ir- reconcilable with the congressional purpose behind it. See Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001). Il. THE GOVERNMENT CANNOT AVOID JUDICIAL CONSID- ERATION OF PETITIONERS’ CONSTITUTIONAL CLAIMS By INVOKING THE POLITICAL QUESTION DOCTRINE OR LABELS SUCH AS “SETTLEMENT” OR “ESPOUSAL” There is some indication in the Federal Circuit’s decision that it viewed the Section 177 Agreement as comprising not just a jurisdictional bar but also a “waiver” or “settlement” of petitioners’ claims. See App. 8a (stating that the Section 177 agreement “represents not only the United States’ removal of its consent to be sued in the courts over these claims but also the claimants’ waiver of their right to sue over these claims in any U.S. court.”). The court of appeals also relied on the fact that Article X of the Section 177 Agreement labeled the bar to petitioners’ claims an “espousal.” See App. 9a. The court declined to question the “validity of that espousal” under the political ques- tion doctrine. Id. 7 “The Government of the United States accepts the respon- sibility for compensation owing to citizens of the Marshall Islands ... for loss or damage to property and person of the citizens of the Marshall Islands.” Compact § 177(a), App. 2042. 22 This reasoning cannot justify a bar to judicial con- sideration of petitioners’ current claims. Petitioners were not parties to the settlement supposedly reflected in the Section 177 Agreement, and to read that Agree- ment as precluding petitioners from pursuing their just compensation claims now would be contrary to the “deep-rooted historic tradition that everyone should have his own day in court.” Martin v. Wilks, 490 U.S. 755, 761 (1989) (internal quotation marks omitted). Moreover, the government cannot avoid the coustitu- tional questions raised by the jurisdictional bar to peti- tioners’ constitutional claims by placing the label of “espousal” on that bar and declaring it immune from scrutiny under the political question doctrine. “No pol- icy underlying the political question doctrine suggests that Congress or the Executive, or both acting in con- cert and in compliance with Art. I, can decide the con- stitutionality of a statute; that is a decision for the courts.” INS v. Chadha, 462 U.S. 919, 941-942 (1983). To hold otherwise, as the court of appeals did, is to rule that the U.S. government may permanently insulate itself from constitutional claims by negotiating a set- tlement of such claims with another government, even if it is the government of one of its own territories, and even if the U.S. government never intends to honor that settlement. A. The Jurisdictional Bar Cannot Be Upheld As A Waiver Or Settlement Of Petitioners’ Claims There is no question that parties can compromise their constitutional claims in litigation, see Town of Newton v. Rumery, 480 U.S. 386 (1987), but that is not what happened in this case. Rather, at a time when it was under the control of the United States government 23 and seeking independence, the Marshall Islands gov- ernment agreed with the United States government to bar United States courts from hearing those claims. This abrogation of petitioners’ claims, in an agreement between the U.S. government and an entity under its control and supervision, does not solve the constitu- tional problems in this case; if anything, it exacerbates them. First, the notion that petitioners’ takings claims could be waived or settled by someone other than themselves, especially a governmental entity, is highly doubtful. “[{PJarties who choose to resolve litigation through settlement may not dispose of the claims of a third party[./’ Local No. 93, Int'l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 529 (1986); cf. Taylor v. Sturgell, 128 S. Ct. 2161 (2008) (rejecting “virtual representation” theory of preclusion). Although some cases have suggested that a governmental entity liti- gating in a parens patriae capacity can dispose of “the common public rights” of its citizens, see City of Ta- coma v. Taxpayers of Tacoma, 357 U.S. 320, 340-341 (1958) (emphasis added), no decision of this Court sug- gests that a government may negotiate away personal, individual rights to seek redress in the courts of the United States for constitutional violations. Second, even if in some circumstances a govern- mental entity covid “waive” its citizens’ constitutional claims, the position of the Marshall Islands government at the time of the Section 177 Agreement makes it im- possible to conclude that such a “waiver” here could be valid. Only sovereign entities may prosecute civil liti- gation in a parens patriae capacity that would be bind- ing on their citizens. See City of Rohnert Park v. Har- ris, 601 F.2d 1040, 1044 (9th Cir. 1979). The Marshall Islands government was not sovereign when it pur- 24 portedly negotiated away the rights of the residents of Enewetak. Although the Marshall Islands at that time had been granted a modicum of self-government, it re- mained under the control of the United States govern- ment as part of the Trust Territory of the Pacific Is- lands, for which “all executive, legislative, and judicial authority” was vested in “such agency or agencies as the President of the United States may direct or au- thorize.” 48 U.S.C. § 1681(a). Given these circum- stances, the jurisdictional bar to petitioners’ constitu- tional claims erected by the Section 177 Agreement be- tween the United States and Marshall Islands govern- ments cannot be upheld under the transparent fiction that petitioners ever agreed to settle their claims against the United States. B. The Jurisdictional Bar Is Not Immune From Judicial Review Under The Political Question Doctrine The court of appeals also stated that the political question doctrine barred it from considering the valid- ity of the preclusion of petitioners’ constitutional claims. App. 9a. In so concluding, the court noted that Article X of the Section 177 Agreement refers to the jurisdictional bar as an “espousal.”* Id. The court also ® it is doubtful that the concept of espousal has any relevance here. Espousal is a concept of inter-sovereign relations in interna- tional law. It is the mechanism by which one sovereign state exer- cises its right of diplomatic protection of its nationals by asserting (and in some cases settling) “the private claims of its nationals against another sovereign.” Asociacion de Reclamantes v. United Mezican States, 735 F.2d 1517, 1523 (D.C. Cir. 1984); see also Dames & Moore v. Regan, 453 U.S. 654, 679 (1981) (“International agreements settling claims by nationals of one state against the government of another ‘are established international practice re- 25 stated that “[t]he power to conduct foreign relations includes the power to recognize a foreign sovereign and the authority to enter into an international claims set- tlement on behalf of nationals.” Jd. That statement is unexceptionable by its terms, but it has no bearing on this case. Petitioners are not chal- lenging the United States government’s recognition of the Republic of the Marshall Islands. Nor does this case involve a situation in which the United States ar- ranged for the disposition of claims that its citizens were pursuing against a foreign sovereign. Rather, in this case, petitioners are challenging the United States government’s attempt to dispose of constitutional claims that had been brought against it—and that had been brought against it by people who were nationals of the United States. flecting traditional international theory.” (quoting Louis Henkin, Foreign Affairs and the Constitution 262 (1st ed. 1972)) (emphasis added)). When the Section 177 Agreement was negotiated, the Marshall Islands’ relation to the United States was not that of a foreign sovereign. See, e.g., People of Satpan v. Department of Interior, 356 F.. Supp. 645, 653, 655 (D. Haw. 1973) (Article 3 of the Trusteeship Agreement allows the United States “in practical ef- fect the exercise of full sovereign power.”), aff'd, 502 F_2d 90 (9th Cir. 1974); World Communications Corp. v. Micronesian Tele- communications Corp., 456 F. Supp. 1122, 1123-1124 (D. Haw. 1978) (holding that Trust Territory of the Pacific Islands was not a foreign state for purposes of diversity jurisdiction statute). Rather, the Marshall Islands remained under the control of the United States, although with limited rights of self-government. Indeed, the Trusteeship Agreement recognized the Marshallese as U.S. nationals at this time, providing in Article 11 that the United States “shall afford diplomatic and consular protection to inhabi- tants of the trust territory when outside the territorial limits of the trust territory or of the territory of the administering author- ity.” App. 287a. 26 For those reasons, United States v. Pink, 315 U.S. 203 (1942), on which the court of appeals relied, is inap- posite. Pink involved a claims-settlement agreement between the United States and the Soviet Union in which the U.S. was seeking to protect its claims and the claims of U.S. nationals “against Russia or its nation- als.” Id. at 227 (emphasis added); see also Medellin v. Texas, 128 S. Ct. 1346, 1371 (2008) (noting that Pink “involve[d] a narrow set of circumstances: the making of executive agreements to settle civil claims between American citizens and foreign governments or foreign nationals”). Moreover, the U.S. government’s recog- nition of the Soviet Union was directly relevant be- cause that recognition retroactively validated the So- viet Union’s nationalization of property, from which the United States’ own claims derived. See Pink, 315 U.S. at 223. No Fifth Amendment problem arose in Pink because the private claimants opposed to the United States’ assertion of ownership over a Russian com- pany’s U.S. property pursuant to an assignment from the Soviet government had no Fifth Amendment rights in the property they were claiming. They were merely foreign creditors of the Russian company whose claims did not arise from the transactions of its New York branch. The effect of the United States’ acceptance of the Soviet government’s nationalization and assign- ment was merely to permit the use of the Russian com- pany’s U.S. property to satisfy American claims against Russia for other nationalizations, leaving the foreign creditors of the Russian company to seek satisfaction by other means. See id. at 226-228; id. at 228 (“[TThe Federal Government is not barred by the Fifth Amend- ment from securing for itself and our nationals priority against such creditors.”). 27 The question in this case, by contrast, is whether the United States government may bar its courts from reviewing the constitutionality of its own actions by se- curing the agreement of another government (here, the Marshall Islands) to that bar. Whatever the answer is, that question is surely a legal one and not a “political” one.’ “Courts cannot reject as “no law suit” a bona fide controversy as to whether some action denominated “political” exceeds constitutional authority.” Chadha, 462 U.S. at 943 (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). This is particularly true in the context of the Fifth Amendment’s guarantee of just compensa- tion, which, this Court has held, is ultimately a matter for judicial, not political, enforcement. See pp. 15-16, supra. This Court has never suggested that constitutional claims against the United States for just compensation in the wake of a claims-settlement agreement would be nonjusticiable. To the contrary, in Dames & Moore v. Regan, 453 U.S. 654 (1981), where the petitioner ar- gued that the President’s suspension of claims against Iran in U.S. courts constituted a taking requiring just compensation, the Court did not even intimate that . Moreover, the answer is clearly “no.” This Court has made clear that the political Branches cannot use international agree- ments to render the Constitution inapplicable where it would oth- erwise apply. See Boumediene v. Bush, 128 S. Ct. 2229, 2258-2259 (2008). “[N]o agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.” Reid v. Covert, 354 U.S. 1, 16 (1957). The takings context is no different; indeed, as dis- cussed above, the Fifth Amendment mandates that claimants have the opportunity to challenge in federal court the adequacy of the compensation received for a taking. 28 such takings claims would be barred by the political question doctrine, but rather stated that “we see no ju- risdictional obstacle to an appropriate action in the United States Court of Claims under the Tucker Act.” Id. at 687-688; see also id. at 691 (Powell, J., concurring in part and dissenting in part) (“The Government must pay just compensation when it furthers the nation’s foreign policy goals by using as bargaining chips claims lawfully held by a relatively few persons subject to the jurisdiction of our courts.”). Moreover, the Court ad- dressed on the merits the petitioner’s attempt to enjoin the President from implementing a portion of the Al- giers Accords that required dissolution of attachments obtained against Iranian assets, and that forced the pe- titioner to pursue compensation for claims against [ran before a claims-settlement tribunal. See id. at 668-688. Dames & Moore thus makes clear that the political question doctrine presents no obstacle to the resolution of the constitutional claims presented here. That the political question doctrine poses no obsta- cle follows, not just from the Fifth Amendment’s com- mitment of just compensation issues to judicial resolu- tion, but also from the limited scope of the political question doctrine itself. Not “every case or contro- versy which touches on foreign relations lies beyond judicial cognizance.” Baker, 369 U.S. at 211. Indeed, even in circumstances touching far more directly on the political Branches’ authority to conduct foreign and military affairs, the Court has not found a political question impediment to the adjudication of constitu- tional questions associated with governmental attempts to appropriate property. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); see also Rus- sian Volunteer Fleet v. United States, 282 U.S. 481 (1931). The fact that this case involves an agreement 29 between the U.S. government and the government of the Marshall Islands does not render the constitutional issues in this case immune from judicial consideration. Not only was the Marshall Islands a U.S. Trust Terri- tory when the Compact and Section 177 Agreement were negotiated, but courts frequently determine the meaning and legal effect of treaties and other interna- tional agreements. See, e.g., Sanchez-Llamas v. Ore- gon, 548 U.S. 331, 353-354 (2006) (determining the meaning of treaties as a matter of federal law is a judi- cial responsibility); Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221, 230 (1986) (“{TJhe courts have the authority to construe treaties and executive agreements.”); Reid v. Covert, 354 U.S. 1 (1957) (assess- ing constitutionality of trials of civilians before courts- martial conducted pursuant to international agree- ments with Great Britain and Japan)."° Regardless of the terminology used to describe the agreement between the governments of the United States and the Marshall Islands in which the latter 'O The political question doctrine is inapplicable here for a fur- ther reason: Congress clearly contemplated that courts would scrutinize the “espousal” provision in Article X when considering whether the Section 177 Agreement validly extinguished petition- ers’ claims. Section 103(g)2) of the Compact Act makes clear that the espousal in Article X and the withdrawal of jurisdiction in Ar- ticle XII of the Section 177 Agreement stand or fall together. See 99 Stat. 1782, App. 144a (“the jurisdictional limitations set forth in Article XII [of the Section 177 Agreement] are not to be construed or implemented separately from Article X”); see also Antolok, 873 F 2d at 387-390 (Wald, CJ., concurring). By inviting courts to ad- dress the issue, Congress indicated that the issue is amenable to judicial resolution, and that it did not view judicial resolution of the issue as an encroachment on the authority of the political Branches. 30 government acquiesced in the United States’ jurisdic tion-stripping, the legal effect of that agreement is gov- erned by the Fifth Amendment, which the federal courts have the power to interpret and enforce. Whether the Compact and the Section 177 Agreement can defeat petitioners’ right to a judicial determination of just compensation—or whether, by contrast, the Fifth Amendment prohibits the United States from de- nying an ultimate judicial determination regardless of whatever non-party may have consented to the de- nial—is at base a question about what the Fifth Amendment guarantees. This is the type of question that the Constitution commits to the courts for resolu- tion, and the Federal Circuit erred in refusing to ad- dress it. CONCLUSION The petition for a writ of certiorari should be granted. DAVOR PEVEC Bishop Street Tower 700 Bishop Street Suite 2100 Honolulu, HI 96813 (808) 599-5655 OCTOBER 2009 3] Respectfully submitted. SETH P. WAXMAN PAUL R.Q. WOLFSON Counsel of Record MICAH S. MYERS WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Ave., NW Washington, DC 20006 (202) 663-6000 CRAIG ESTES WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 (617) 526-6000 APPENDIX la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT Nos. 2007-5175, 2007-5176 THE PEOPLE OF BIKINI, BY AND THROUGH THE KILI/BIKINI/EJIT LOCAL AND GOVERNMENT COUNCIL, Plaintiff-Appellant, Vv. UNITED STATES, Defendant-Appellee. ISMAEL JOHN, JACKSON ADING, JAMES GIDEON, KUNIO JOSEPH, HARRY JACKSON, BOAZ DAVID, SAM LEVAI, BALIKEN JACKSON, DAVID OBET, KOSIMA JOHANNES, JINET LANGRUS, EBELJOSEPH, GEORGE YOSHITARO, ISAHO LUTHER, BIKENJI PAUL, NEPTALI PETER, AND MOSES ABRAHAM, FOR THEMSELVES AND FOR A CLASS CONSISTING OF THE PEOPLE OF ENEWETAK, Plaintiffs-Appellants, Vv. UNITED STATES, Defendant-Appellee. January 29, 2009 [554 F.3d 996] + * aa [997] Before LOURIE, RADER, PROST, Circuit Judges. RADER, Circuit Judge. The people and descendants of the Bikini and Enewetak Atolls seek just compensation for the taking of their land and their legal claim by the United States government. The Nuclear Claims Tribunal has awarded, but not completely funded, compensation for the Atolls’ inhabitants due to bomb testing in the 1940s and 1950s. Because the parties clearly and unambigu- ously agreed to extinguish any judicial jurisdiction over the claims presented in these appeals, this court affirms the United States Court of Federal Claims’ dismissal of these complaints. i The Court of Federal Claims sets forth the back- ground of this dispute in great detail. See People of Bi- kini v. United States, T7 Fed. Cl. 744 (2007); John v. United States, T7 Fed. Cl. 788 (2007). Accordingly, this opinion will only discuss those facts necessary for these appeals. The Bikini and Enewetak Atolls are two of twenty-nine atolls and five islands comprising the Mar- shall Islands. In December 1947, the United States se- lected these Pacific Ocean atolls as sites for the Nuclear Testing Program. The United States removed the in- habitants of these islands from their homes. Many refugees suffered deprivations in their new conditions. Meantime the weapons testing programs devastated the islands and lagoon, scattering massive amounts of radioactive material. The Plaintiffs-Appellants represent the people and descendants of the Bikini and Enewetak Atolls. In the early 1980s, both groups filed claims in the United States Court of Claims. The Plaintiffs sought just com- pensation for the Fifth Amendment taking of their land and damages for the United States’ breach of its fiduci- 3a ary duties. During this litigation, the governments of the United States and the Marshall Islands reached a settlement agreement to compensate the refugees and victims. The United States presented this Compact of Free Association to Con-{998]gress in 1984. The Com- pact of Free Association Act of 1985 (the Compact Act) became law on January 14, 1986. Pub. L. No. 99-239, 99 Stat. 1770 (1986). Section 177(a) of the Compact Act sets forth the United States’ acceptance of responsibil- ity for the damage to property and persons resulting from the Nuclear Testing Program. Section 177(b) provides for the settlement of all claims past, present and future that are based upon, arise out of, or are in any way related to the Nuclear Testing Program. The United States and the Government of the Marshall Is- lands entered into a further agreement to implement Section 177 of the Compact Act—the Section 177 Agreement—on October 21, 1986. The Compact Act specifically references and incorporates the provisions of the Section 177 Agreement into the Compact Act. Compact Act, § 103(g). In view of the Compact Act and the Section 177 Agreement, the successor to the Court of Claims, the United States Claims Court, held that the United States’ consent to be sued under the Tucker Act had been withdrawn with respect to the pending takings claims and dismissed. Juda v. United States, 13 Cl. Ct. 667 (1987). The Section 177 Agreement created a Nuclear Claims Tribunal to render final determination upon all “past, present and future” claims related to the Nuclear Testing Program. Congress committed $150 million to initiate a trust fund to support the Tribunal’s opera- tions and awards. Section 177 Agreement, Art. I, § 1. Congress designated $45.75 million of that amount for the payment of awards. Jd. at Art. II, § 6(c). Even 4a from its inception, many critics recognized that the Tri- bunal fund would not satisfy all of the claims. On August 3, 2000, the Tribunal awarded the Plain- tiffs-Appellants, the People of Enewetak, $385,894,500, including $244,000,000 for past and future loss of Enewetak Atoll, $107,810,000 for restoration costs and radiation cleanup, and $34,084,500 for hardships suf- fered during the relocation from the atoll. In February 2002 and 2003, the Tribunal paid only $1,078,750 and $568,733 on those awards—less than 1% of their total award. In March 2001, the Tribunal awarded the Plaintiffs- Appellants, the People of Bikini, $563,315,500 in com- pensation, including $278,000,000 for the past and fu- ture loss of their land. Due to inadequate funding, however, the Tribunal paid only $1,491,809 in 2002, rec- ognizing that the fund is “insufficient to make more than a token payment.” The fund made a second pay- ment of $787,370.40 in 2003, approximately 0.4% of the total award. As of October 2006 only $1 million re- mained in the Tribunal fund. Article IX of the Section 177 Agreement provides an avenue for seeking additional funding from Con- gress. A “Changed Circumstances” petition can be submitted to Congress if “such injuries render the pro- visions of this Agreement manifestly inadequate.” Sec- tion 177 Agreement, Art. IX. Article [X goes on to say that it “does not commit the Congress of the United States to authorize and appropriate funds.” Jd. The Government of the Marshall Islands submitted a Changed Circumstances petition to Congress request- ing additional funding in 2000. To date, Congress has not acted on that petition. 5a In 2006, the Plaintiffs-Appellants brought suit in the United States Court of Federal Claims seeking just compensation for deprivation of property rights under the Fifth Amendment. The Plaintiffs based their tak- ings claims on inadequate funding of the Tribunal’s award programs (claims-based taking) and the depriva- tion of their land during the testing (land-based taking). Before the United States Court of Federal Claims, the Appellants also as-(999]serted various contract and im- plied contract theories. The Court of Federal Claims granted the Govern- ment’s motion to dismiss primarily because the Section 177 Agreement deprives any court of the United States of jurisdiction over these claims. The trial court also observed that nonjusticiable political questions, ripe- ness doctrines, statute of limitations bars, collateral es- toppel bars, and other deficiencies in the claim pre- vented any grant of relief. The Appellants timely ap- pealed to this court. On appeal, this court received only the land-based and claims-based taking claims. IT. This court reviews the dismissal of a complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the Court of Federal Claims without deference. See Adams v. United States, 391 F.3d 1212, 1218 (Fed. Cir. 2004); Shearin v. United States, 992 F.2d 1195, 1195 (Fed. Cir. 19938). The Section 177 Agreement states: “This Agree- ment constitutes the full settlement of all claims, past, present and future, of the Government, citizens and na- tionals of the Marshall Islands which are based upon, arise out of, or are in any way related to the Nuclear Testing Program ....” Section 177 Agreement, Art. X 6a (emphasis added). This enacted Agreement has the force of law. Compact Act, § 175. Addressing the “United States Courts,” Article XII of the settlement agreement instructs, “All claims described in Articles X and XI of this Agreement shall be terminated. No court of the United States shall have jurisdiction to entertain such claims, and any such claims pending in the courts of the United States shall be dismissed.” Section 177 Agreement, Art. XII (em- phasis added). Article XII thus represents the parties’ agreement to extinguish any judicial power to hear these claims. This court proceeds from the vantage point that constitutional rights and “wrongs,” if at all possible, de- serve a forum for hearing and relief in the U.S. judicial system. At the same time, this court acknowledges that its first obligation is to ensure that it has power and authority to hear a claim, even a constitutional claim, in the first place. See Ex parte McCardle, 74 U.S. 506, 512 (1868) (“The first question necessarily is that of jurisdiction.”). To be specific, the United States Constitution di- vides power between the legislative, executive, and ju- dicial branches. Judicial power is vested in one Su- preme Court and “in such inferior Courts as the Con- gress may from time to time ordain and establish.” U.S. Const. art. 3, § 1. By “ordain,” the Constitution meant to give the legislature the power to set the ju- risdiction and the limits of judicial authority for the “in- ferior Courts.” In addition, the legislative authority to establish the inferior courts includes the power to limit their jurisdiction and powers. Because Congress “or- dain[s] and establish[es]’ all courts under the Supreme Court, the legislative authority includes the power to Ta set their jurisdiction. And just as Congress can grant jurisdiction, Congress can take it away. See Ex parte McCardle, 74 U.S. at 514 (“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of an- nouncing the fact and dismissing the cause.”). Thus, before proceeding to hear any claim, even a constitu- tional claim, this court must ensure that it has jurisdic- tion to act. The Section 177 Agreement is a settlement agree- ment. By its own terms, it [1000] constitutes “the full settlement of all claims, past, present and future, of the Government, citizens and nationals of the Marshall Is- lands which are based upon, arise out of, or are in any way related to the Nuclear Testing Program.” Section 177 Agreement, Art. X,§ 1. As part of the agreement, the Government of the United States committed $150 million to the fund, setting aside $45.75 million for the payment of monetary awards rendered by the newly created Nuclear Claims Tribunal. On appeal, the parties do not contest the amount awarded by the Nuclear Claims Tribunal. Rather they seek enforcement of the award—in spite of the Claims Tribunal’s award of amounts beyond the funding limits of the settlement agreement. Moreover the parties contemplated the prospect of inadequate funding for full compensation when entering into the Section 177 Agreement. In the event that “such injuries render the provisions of this Agreement manifestly inadequate,” Article [IX provides an avenue for submitting a changed circumstances petition to Congress. The “Changed Circumstances” provision acknowl- edges that “this Article does not commit the Congress 8a of the United States to authorize and appropriate funds.” Section 177 Agreement, Art. IX. The parties expressly agreed to this procedure and in doing so trusted the U.S. Congress to weigh and evaluate and act upon any changed circumstances. Thus, the settle- ment agreement entrusted the funding remedy to a procedure outside the reach of judicial remedy. Indeed on that point, the language of the settle- ment agreement is clear: “All claims described in Arti- cles X and XI of this Agreement shall be terminated. No court of the United States shall have jurisdiction to entertain such claims, and any such claims pending in the courts of the United States shall be dismissed.” Section 177 Agreement, Art. XII (emphasis added). This statement represents not only the United States’ removal of its consent to be sued in the courts over these claims but also the claimants’ waiver of their right to sue over these claims in any U.S. court. Thus, this court has no authority in this matter, except to dismiss for lack-of jurisdiction. This case does not present any statutory ambigui- ties about the jurisdiction or, actually, the absence of jurisdiction to entertain the Bikini and Enewetak tak- ing claims. This court notes that, in Blanchette, the Su- preme Court refused to resolve ambiguities in the stat- ute about Tucker Act jurisdiction to avoid encountering “grave doubts” about the constitutionality of the Rail Act itself. Blanchette v. Connecticut Gen. Ins. Corps., 419 U.S. 102, 134 (1974). This court does not need to engage in any caution due to ambiguities. The lan- guage of the Section 177 Agreement presents no ambi- guities whatsoever. Therefore, this court does not need to follow the careful course of the Blanchette case. 9a Moreover, unlike the Blanchette case, this case in- volves a settlement negotiated between the United States and the Government of the Marshall Islands. The power to conduct foreign relations includes the power to recognize a foreign sovereign and the author- ity to enter into an international claims settlement on behalf of nationals. See United States v. Pink, 315 U.S. 203, 229-30 (1942). The Plaintiffs-Appellants, the Peo- ple of Enewetak, challenge the validity of that espousal. However, that challenge raises a political question be- yond the power of this or any court to consider. Jd. at 229 (“What government is to be regarded here as rep- resentative of a foreign sovereign state is a political rath-{1001]er than a judicial question, and is to be de- termined by the political department of the govern- ment.” (quoting Guaranty Trust Co. v. United States, 304 U.S. 126, 137, (1938))). This court observes that its sense of justice, of course, makes it difficult to turn away from a case of constitutional dimension. However, the same sense of justice recognizes that this court cannot act without ju- risdiction. In sum, this court cannot hear, let alone remedy, a wrong that is not within its power to adjudi- cate. The sweeping language of the Section 177 Agreement withdraws jurisdiction of the U.S. courts. Thus, this court affirms the United States Court of Federal Claims’ dismissal of these complaints. AFFIRMED lla APPENDIX B UNITED STATES COURT OF FEDERAL CLAIMS No. 06-289L ISMAEL JOHN, et al., FOR THEMSELVES AND FOR A CLASS CONSISTING OF THE PEOPLE OF ENEWETAK, Plaintiffs, Vv. UNITED STATES, Defendant-Appellee. Filed August 2, 2007 (77 Fed. Cl. 788] OPINION AND ORDER MILLER, Judge. This case, a resurrection of proceedings before the court in the late 1980s, is before the court after argu- ment on defendant's dispositive motion. Following the filing of plaintiffs’ amended complaint on August 10, 2006, defendant moved to dismiss pursuant to RCFC 12(bX{1) and 12(b)(6). The instant case, along with its companion, People of Bikini v. United States, No. 06- 288C (Fed. Cl. filed Apr. 11, 2006),’ puts before the court the nature of the legal responsibility undertaken by the United States for the post-World War II testing ' The opinion in the companion case also is issued this date. 12a of thermonuclear bombs on the island homelands of plaintiffs. This program obliterated or compromised the land and caused the relocation of the islands’ inhabi- tants, who have sought redress in political, judicial, and special-purpose fora over the last sixty years. Argu- ment has been held, and two rounds of supplemental briefing have been completed.” BACKGROUND Plaintiffs include seventeen persons with land rights on Enewetak who were members of the Enewetak community during their initial evacuation by the United States in December 1947. Pursuant to RCFC 23, plaintiffs bring this suit in the United States Claims Court, now the United States Court [792] of Federal Claims, on their own behalf and on behalf of a class that consists of all living persons who were mem- bers of the Enewetak community at the time of the 1947 evacuation of Enewetak Atoll, all liv- ing descendants of those members, and all other persons who by traditional law and cus- tom are recognized as members of the Enewetak people.... There are currently more than 2000 members of the Enewetak people. Am. Compl. filed Aug. 10, 2006, { 14. Plaintiffs include a Senator for the people of Enewetak; the Mayor of the people of Enewetak; members of the Enewetak/Ujelang Council; and the Iroji, or chiefs, of the ri-Enewetak; and the ri-Enjebi. . By order entered on March 28, 2007, this case and Bikini were consolidated for purposes of argument only. l3a Plaintiffs plead six counts against the United States for occupation and use of portions of Enewetak Atoll. Plaintiffs allege: (1) a temporary taking of Enewetak Atoll by the United States between Decem- ber 1947 and October 1980 and of select portions within Enewetak from October 1980 through the next twenty to fifty years (“Count I”); (2) breach of an implied-in- fact contract formed by the conduct of the United States, which constituted “a commitment to care for [plaintiffs’] physical, economic, educational, cultural, and other needs until it returned their atoll in substan- tially the condition in which it had received it or paid compensation for any significant changes,” Am. Compl. 41 192 (“Count IT”); (3) a taking of plaintiffs’ taking claim for the use and occupation of Enewetak Atoll by the United States in failing to fund the Nuclear Claims Tri- bunal so as to deny just compensation (“Count ITT”); (4) an unlawful taking of plaintiffs’ property interest mani- fested in their implied-in-fact contract claim for failure to provide for adequate funding of the Nuclear Claims Tribunal (“Count IV”); (5) a taking of Enewetak Atoll through the formation of the Compact of Free Associa- tion in 1986 (“Count V”); and (6) a breach of implied-in- fact contract fiduciary duties through formation of the Compact of Free Association (“Count VI”). FACTS Judge Kenneth R. Harkins presided over these cases during the 1980s. He labored on them conscien- tiously and painstakingly for years. The undersigned, a new and young judge at the time, witnessed his dedi- cated efforts. The United States Court of Appeals for the Federal Circuit acknowledged the thoroughness of Judge Harkins’s opinions. Judge Harkins fully ad- dressed the factual backdrop of this case; the Federal 14a Circuit affirmed his decision, see People of Enewetak v. United States, 864 F.2d 134, 135 (Fed. Cir. 1988), affg Peter v. United States, 13 Cl. Ct. 691 (1987) (also stating facts relevant to plaintiffs’ complaint in Tomaki Juda et al. v. United States, No 172-81L (Cl. Ct. filed Mar. 16, 1981)); and the parties neither have adduced new facts nor offered insight into the facts of record over the last nineteen years that would change them. This court adopts and restates, with minor modifications, the facts as found by Judge Harkins. See Peter v. United States, 6 Cl. Ct. 768, 770-73 (1984) (Enewetak Atoll; granting and denying, in part, motion to dismiss) (“Peter I”); Juda v. United States, 6 Cl. Ct. 441, 446-49 (1984) (Bi- kini Atoll; denying motion to dismiss) (“Juda I’ ). The facts subsequent to 1987 are undisputed, except where noted otherwise. I. Nuclear tests in the Marshall Islands 1. History of the Marshall Islands During the period June 30, 1946, to August 18, 1958, the United States conducted a series of nuclear tests in the Marshall Islands that included detonation of twenty-three atomic and hydrogen bombs at Bikini Atoll and forty-three atomic and hydrogen bombs at Enewetak Atoll. These tests necessitated removal of the inhabitants and their relocation to other islands and resulted in severe physical destruction at the atolls di- rectly involved, as well as radioactive contamination at other parts of the Marshall island chain. The effects of the testing program included: annihilation of some is- lands and vaporization of portions of others; permanent resettlement with substantial relocation hardships to some inhabitants; exposure to high levels of radiation by some inhabitants; and widespread contamination ld5a from radioactivity that renders some islands unus[]able by man for indefinite future periods. [793] The Marshall Islands are a part of Micronesia, formerly a United Nations Trust Territory adminis- tered by the United States. The component parts of the Trust Territory of the Pacific Islands (the “Trust Territory”) were the Marshall, Caroline, and Mariana island chains. The Trust Territory includes more than 2,000 islands and atolls dispersed throughout the Pa- cific Ocean, within an area approximately the size of the continental United States. Until World War II, Micronesia was administered by Japan under a League of Nations Mandate. The is- lands came under the United States’ control by military occupation in 1944. The United Nations and its Trus- teeship Council were given jurisdiction over non-self- governing territories, and trusteeship agreements were executed between the United Nations and those signatory powers in de facto possession of such territo- ries. The United States was designated “administering authority” over the Trust Territory pursuant to an agreement ratified by the United Nations Security Council on April 2, 1947, and approved by Congres- sional joint resolution on July 18, 1947. 61 Stat. 3301, T.LA.S. No. 1665. In 1947 military government was terminated, and administration of the Trust Territory was delegated to the Secretary of the Navy. Exec. Or- der No. 9,875, 3 C.F.R. 658 (1943-48 comp.). In 1951 some administrative responsibilities were transferred to the Interior Department. Exec. Order No. 10,265, 3 C.F.R. 766 (1949-53 comp.). By the Act of June 30, 1954, as amended (48 U.S.C. § 1681 (1982)), Congress directed: 16a (a) Until Congress shall further provide for the government of the Trust Territory of the Pa- cific Islands, all executive, legislative, and judi- cial authority necessary for the civil admini- stration of the Trust Territory shall continue to be vested in such person or persons and shall be exercised in such manner and through such agency or agencies as the President of the United States may direct or authorize. Prior to 1962 responsibility for administration of the Trust Territory was divided between the Interior and Navy Departments. Effective July 1, 1962, the au- thority for civil administration of the Trust Territory was redelegated to the Secretary of the Interior, with the direction to carry out the obligations assumed by the United States as the administering authority “un- der the terms of the Trusteeship Agreement and the Charter of the United Nations.” Exec. Order No. 11,021, 3 C.F.R. 600 (1959-63 comp.). See generally Porter v. United States, 496 F.2d 583, 587-90 (Ct. Cl. 1974), cert. denied, 420 U.S. 1004 (1975). Pursuant to this authority, the Secretary of the Interior established a Trust Territory Government (the “T'TG”), which in- cluded executive, legislative, and judicial branches, with a High Commissioner as chief executive. Sec. Or- der No. 2,918, 34 Fed. Reg. 157 (1968). In 1969 the United States began negotiations with the inhabitants of the Trust Territory directed to es- tablishment of a framework for transition to constitu- tional self-government and future political relation- ships. During the negotiations the Trust Territory be- came divided into four governmental entities: North- ern Mariana Islands, Republic of Palau, Federated States of Micronesia, and Republic of the Marshall Is- lands. 17a 2. Occupation of Enewetak Atoll Enewetak Atoll is composed of approximately forty islands, which have a combined land area of 2.75 square miles and enclose a lagoon of approximately 388 square miles. The largest islands are Enewetak Island, with a land area of 321.86 acres, and Engebi Island, with a land area of 290.58 acres. The Enewetak people traditionally have been di- vided into two separate subcommunities, one on Engebi Island and one on Enewetak Island. Members of the two communities historically have intermarried and co- operated in certain economic activities. They now elect a common council. The Enewetak people are governed by the two chiefs (Iroji) of the subcommunities; a Mag- istrate; an elected Council of twelve members; a Scribe; and a Senator, who represents the Enewetak people in the legislature of the Marshall Islands government. The people of Enewetak historically were eco- [794]nomically self-sufficient on the basis of lagoon fish- ing, nonintensive agriculture, and various gathering activities. Beginning in the early 20th century, copra was produced as an export crop. During February 1944 American troops captured Enewetak Atoll from the Japanese, which at that time had several thousand personnel on Engebi. On Febru- ary 24, 1944, the military governor posted Proclamation No. 1. This proclamation notified the civilian inhabi- tants that existing personal and property rights would be respected and existing laws and customs would re- main in force and effect, except “to the extent that it is necessary for me in the exercise of my powers and du- ties to change them.” Later in February 1944, the Enewetak people were relocated to a camp on Aomon Island, an island in the 18a atoll. Eventually the total civilian population of the atoll was gathered in this camp. The Army unit left on July 4, 1944; thereafter, the Navy, until June 1946, pro- vided all supplies of food, clothing and housing for the Enewetak people. During the period February 1944 to late 1945, the Enewetak people were permitted to re- side only on Aomon Island and on the adjacent Bijire Island. On June 14, 1946, in preparation for the com- mencement of Operation CROSSROADS; at Bikini Atoll, the entire population of Enewetak Atoll was transported by the Navy to Kwajalein Atoll, where they were housed in temporary facilities and supplied by the Navy. On July 25, 1946, Enewetak Atoll was de- clared safe; on July 30, 1946, the Enewetak people were returned to Aomon and Bijire Islands at Enewetak Atoll. During the period of residence at Kwajalein Atoll, United States officials caused the Enewetak people to believe that their removal from Enewetak would be temporary; that they would be able to return to Enewetak at the conclusion of the Bikini nuclear tests; that temporary relocation was necessary to protect them against harm from the tests on Bikini Atoll; and that, throughout the relocation, their needs for food, shelter, and other necessities would be provided by the United States. On December 1, 1947, Enewetak Atoll was chosen as the site for the nuclear tests in Operation SAND- STONE, and the United States Governor of the Mar- shall Islands notified the Enewetak people that they must leave the atoll. During December 1947 the entire population, with personal belongings, was boarded on a United States Navy LST and transported to Ujelang 19a Atoll, where they arrived on December 21, 1947. Dur- ing the period of their relocation on Ujelang Atoll, United States officials caused the Enewetak people to believe that their removal would be temporary; that they would be able to return to Enewetak at the con- clusion of the United States use of Enewetak; that relo- cation was necessary to protect them against harm re- sulting from United States operations; and that, throughout the relocation, their needs for food, shelter and other necessities would be provided by the United States. Ujelang Atoll is the westernmost and most isolated geographically of the inhabited atolls and islands that comprise the Marshall Islands. It lies 124 miles south- west of Enewetak Atoll and 617 miles west of Majuro, the administrative center and the major commercial port for the Marshall Islands. Ujelang Atoll has 0.67 square miles of dry land area and 25.47 square miles of lagoon and is rocky and relatively unproductive for ag- riculture. Ujelang resources were inadequate to provide the Enewetak people with a regular supply of food and other material necessities. Infrequent and irregular ship visits resulted in severe shortages of rice, flour, and materials needed to repair buildings and boats. By 1952 most of the Enewetak people’s sailing canoes were rendered unus[Jable as a result of severe shortage of sailcloth, paint, fishing net material, and hooks. In the mid-1960s, the island’s rat population increased greatly and destroyed stored copra and supplies of rice and flour. By 1967 food was so short that the people on Ujelang had only enough for one meal each day. On October 20, 1967, a TTG ship arrived to find the people on Ujelang with no copra to sell and no money to 20a buy needed food and supplies. Almost all of the nearly 300 people on the atoll boarded the ship and demanded transport to Majuro to protest to the govern-[795}ment that they were starving. A Trust Territory official, af- ter seven hours, radioed for food and agreed to stay on Ujelang until the supply ship returned. The supply ship returned with food on November 3, 1967. In November 1968 the people on Ujelang were to- tally out of rice, flour, sugar, and other imported goods. In June 1972 a typhoon destroyed the breadfruit crop, and on August 30, 1972, a supply ship found that the Enewetak people had been out of rice, flour, sugar, and canned meat for over two weeks. The nuclear program on Enewetak Atoll extended from April 1948 to August 1958 and included forty- three atomic and hydrogen bomb tests. The program included Operation SANDSTONE (April and May 1948), Operation GREENHOUSE (April and May 1951), Operation IVY (November 1952), Operation REDWING (May through July 1956), and Operation HARDTACK (May through August 1958). The nuclear tests at Enewetak Atoll included detonations in the air, on towers, on the surface of islands and reefs, on barges, and underwater. Two plutonium tests on the island of Runit, as a result of failure to fully detonate, sprayed chunks of plutonium across the island. On Au- gust 22, 1958, the President of the United States an- nounced a suspension of further atmospheric testing of nuclear weapons to take effect on October 31, 1958. The Nuclear Testing Program resulted in serious damage to Enewetak Atoll. Five islands were com- pletely or partially vaporized. Islands on the northern half of the atoll, including Engebi and Runit, were con- taminated heavily with radioactivity; radioactive Zla wreckage littered many of the islands. The lagoon was damaged seriously. Vegetation was completely stripped from many islands, and almost all plants of ag- ricultural and economic value on the atoll were totally destroyed. On November 5, 1956, the two hereditary chiefs, and a majority of the Enewetak people who possessed rights in the atoll, were assembled on Ujelang to dis- cuss a settlement of past and future use of the atoll. On November 19, 1956, the High Commissioner of the TTG as one party and the two hereditary chiefs—twenty- four individuals of Enewetak and twenty-four individu- als of Engebi—as the other parties executed a docu- ment captioned: “Agreement in Principle Regarding the Use of Enewetak Atoll.” This document provided that the TTG would grant and convey to the Enewetak people full use rights in Ujelang atoll to continue “until such time as it may be possible for the people to return to Enewetak.” The TTG was given full use rights to Enewetak Atoll “until such time as it will not be neces- sary to occupy and use Enewetak Atoll in the interest of the maintenance of international peace and security.” The sum of $175,000 was to be conveyed to persons who possess rights in Enewetak, to be administered as fol- lows: $25,000 paid at the time of signing to be divided by the hereditary chiefs and the remaining $150,000 to be placed in a trust fund administered by the High Commissioner. Section 5 of the document contained an assertion that the chiefs and Alabs (family heads) who signed had the “full and complete” right to represent the Enewetak people and included the following provi- sions with respect to claims for use of the atoll: Accordingly, the Chiefs and Alabs signing this agreement agree that any future claims based on the use of Enewetak by the Govern- 22a ments of the United States or the Trust Terri- tory or on the moving of the people from Enewetak Atoll to Ujelang Atoll shall be against them and not against the Government. This agreement was made voluntarily and without any compulsion or coercion whatsoever. On June 20, 1957, a document captioned “Use and Occupancy Agreement for Land in the Trust Territory of the Pacific Islands under the Administrative Re- sponsibility of the Department of the Interior” was re- corded in Record Book No. 1 of the Marshall Islands District. This document recites that it was made as of the 2nd day of March 1944 by and between the TTG, as grantor, and the United States of America; that the TTG was “owner of exclusive use and occupancy rights for an indefinite period of time” of the Enewetak Atoll; and that the United States “desires to acquire the use and occupancy of the land” for an indefinite period of time. In [796] the agreement the TTG conveyed to the United States the exclusive right to use and occupy Enewetak Atoll for an indefinite period of time and agreed to save the United States harmless from any and all claims, arising directly or indirectly, from such use or occupancy, except for claims arising from negli- gence by the United States. The section on conditions of use provided: (1) that use by the United States shall be consistent with the provisions and purposes of the Trusteeship Agreement; (2) that on or about June 30, 1961, and on a similar date each five-year period there- after, the United States and the TTG would “jointly re- view and determine the need for continuing the use and occupancy,” with final decision resting in the President of the United States; and (8) that, if a decision was made that a need for continued use and occupancy does 23a not exist, the grant would terminate and “all interest in said land shall revert to” the TTG. During the 1960s, after the prohibition of atmos- pheric and underwater testing, Enewetak Atoll’s la- goon was used as a target for test missiles fired from Vandenberg Air Force Base in California. In September 1971 the United States Defense Nu- clear Agency and the Air Force developed plans for an operation on Enewetak Atoll to be known as the Pacific Cratering Experiments (“PACE”). The program was designed to test cratering effects of nuclear blasts by simulating such blasts with high explosives. Between September 1971 and October 1973, the United States’ preparations for PACE included stripping vegetation and topsoils from one of the islands. In October 1972 the United States District Court for the District of Hawaii granted a preliminary injunction to the people of Enewetak to prohibit further work on PACE until adequate environmental impact studies were con- ducted. People of Enewetak v. Laird, 353 F. Supp. 811 (D. Haw. 1973). On June 8, 1973, the Air Force termi- nated plans for the PACE program on Enewetak. On April 18, 1972, the United States Special Repre- sentative to the Micronesian Political Status Talks an- nounced that the United States would return Enewetak Atoll to the people of Enewetak by the end of 1973. From 1972 until 1977, various United States government agencies engaged in studies and planning for radiological cleanup and rehabilitation programs. On August 31, 1976, representatives of the United States executed a document captioned “Agreement Terminating Rights, Title, and Interest of the United States to Enewetak Atoll.” After reciting that the United States wishes to terminate its use and occu- 24a pancy in Enewetak Atoll, this document provided that all right, title, and interest of the United States in or to Enewetak Atoll “existing at noon on the day prior to the date of signature by the last party to sign this agreement are hereby terminated.” The Acting High Commissioner of the TTG, the last party to sign, exe- cuted the document on September 16, 1976. On September 16, 1976, the TTG Acting High Commissioner executed a document captioned “Release and Return of Use and Occupancy Rights to Enewetak Atoll.” This document provided that the TTG does hereby “quitclaim, release and restore to all persons who hold traditional rights to the lands of Enewetak Atoll all right, title, interests and rights of use and oc- cupancy in and to Enewetak Atoll.” From May 1977 through April 1980, the United States undertook cleanup efforts. In April 1980 the Enewetak people as a whole returned to Enewetak Atoll for permanent residence. The Enewetak people have been able to resettle only the southern portion of the atoll. Access to several of the northern islands, including Engebi, is restricted by order of the Department of the Interior on the ground that remaining radioactivity renders these is- lands dangerous for habitation, agriculture, and many other uses for a period estimated to be approximately thirty years. Runit Island at present contains more than 110,000 cubic yards of plutonium-contaminated soil and debris that during the cleanup operation had been collected from throughout the atoll. This material had been mixed with cement and water to form a slurry, placed in a bomb crater on Runit, and covered by a con- crete dome eighteen inches [797] thick and 370 feet in 25a diameter. Runit is expected to be extremely radioac- tive for at least the next 240,000 years. II. Peter I, Juda I, and Nitol I On September 15, 1982, plaintiffs first filed a com- plaint with the United States Claims Court, now the United States Court of Federal Claims. Johannes Pe- ter et al. v. United States, No. 461-82L (Cl. Ct. filed Sept. 15, 1982). The complaint named “17 individual plaintiffs who claim on their own behalf and on behalf of a class composed of all persons recognized as the Enewetak people.” Peter v. United States, 6 Cl. Ct. 768, 769 (1984) (granting and denying, in part, motion to dismiss) (“Peter I” ). Plaintiffs alleged four causes of action: “(1) unlawful taking of Enewetak Atoll [for the period from December 1947 to April 1980]; (2) breach of an implied-in-fact contract that imposed upon the United States responsibilities toward the Enewetak people in the nature of a fiduciary; (3) failure to comply with the terms of the Trusteeship Agreement; and (4) breach of agreements between the United States and the Trust Territory Government.” Peter v. United States, 13 Cl. Ct. 691, 691-92 (1987) (“Peter IT’) (dis- missing complaint based on withdrawal of jurisdiction). On November 30, 1984, Judge Harkins granted defen- dant’s motion to dismiss regarding Counts I, III, and IV and denied the motion to dismiss regarding plain- tiffs’ implied-in-fact contract claim. Peter I at 781. Peter I concluded that, “[flor purposes of applica- tion of the statute of limitations, in a claim for just compensation for a taking, August 22, 1958, must be the ‘taking date’ of Enewetak Atoll, in accordance with the doctrine announced in [United States v. Dickinson, 331 U.S. 745 (1947)].” Id. at 775. Based on this determina- tion, the court dismissed plaintiffs’ first cause of action 26a for failure to comply with the six-year statute of limita- tions in the Tucker Act, 28 U.S.C. § 2501 (1986). Peter / dismissed the third count based on 28 U.S.C. § 1502 (1986), holding that “(tJhe Trusteeship Agreement is a treaty, and it has been made with a recognized unit of foreign nations. [The Peter p)laintiffs’ claim in count III clearly grows out of and is dependent upon that treaty.... Such relationship bars jurisdiction in this court.” Jd. at 779 (citing Hughes Aircraft Co. v. United States, 534 F.2d 889, 903 (Ct. Cl. 1976); S.N.T. Fratelli Gondrand v. United States, 166 Ct. Cl. 473, 478 (1964)). Regarding plaintiffs’ implied-in-fact contract claim, the court held that “plaintiffs have alleged facts which for purposes of a motion to dismiss must be accepted as true. The facts, as alleged, establish conduct that is adequate to establish the requisite elements of a con- tract implied-in-fact.” Peter I at 779; see also id. at 692 (“It was determined that plaintiffs were not barred by the statute of limitations from an offer of proof as to the origin, nature, and content of the alleged implied-in-fact contract, and that count II stated a breach of contract claim within the Tucker Act jurisdiction of this court.”) Finally, the court held that count IV of plaintiffs’ claims, which “alleges plaintiffs are third party benefi- ciaries to the overall transaction involved in the Sep- tember 16, 1976, agreement between the TTG and the United States,” was subject to dismissal because “the September 16, 1976, transactions did not confer rights as third party beneficiaries to plaintiffs.” Peter I at 780, 781. In conjunction with the filing of the complaint in Peter, thirteen other related cases were filed with the Claims Court regarding the effects of the Nuclear Test- ing Program in the Marshall Islands. Judge Harkins consolidated eleven complaints filed on September 9, 27a 1981, and a twelfth complaint filed on July 26, 1982. See Nitol v. United States, 7 Cl. Ct. 405, 407 (1985) ( “Nitol I’). The court explained: The claims of the inhabitants of the Bikini Atoll and Enewetak Atoll, sites used for atomic testing, factually are significantly different from each other, and both are distinguishable factually from the claims in the Nitol series of cases. For these reasons, the three types of claims have been handled separately. Only the Nitol series of cases have been consolidated. Juda I at 446 (denying motion to dismiss). The Nitol plaintiffs included “3,318 inhabitants of atolls and islands that were not used [798] as nuclear test sites. These claims are based primarily on the ef- fects of radiological fallout and contamination that re- sulted from the test program....” Jd. The Nitol plain- tiffs alleged three causes of action: (I) an unlawful taking of plant life, fish life, fish- ing rights, the land, the lagoon, the waters of the lagoon, and surrounding ocean of the atoll or island; (II) breach of an implied-in-fact con- tract between the people of the Marshall Is- lands and the United States that obligated the United States as a fiduciary to protect the health, well being and economic condition of the Marshallese people; and (III) breach of fiduci- ary duties arising out of the Trusteeship Agreement, which is characterized as a bilat- eral contract between the United States and United Nations. 28a Nitol I at 412. Judge Harkins granted defendant’s mo- tion to dismiss as to counts II and III and denied de- fendant’s motion as to count I. Jd. at 417. On March 16, 1981, plaintiffs in the related case of Juda filed their complaint, Tomaki Juda et al. v. United States, No. 172-81L (Cl. Ct. filed Mar. 16, 1981), “Snclud[ing] as plaintiffs the 1,004 members of the Bi- kini community as of May 1, 1981, and is concerned with the claims of the inhabitants of Bikini atoll.” Juda J at 446. The plaintiffs in Juda alleged three causes of ac- tion: (1) an unlawful taking of Bikini Atoll from March 7, 1946, to January 24, 1979; (2) an unlawful taking that began on January 24, 1979, and would continue for the next 20 to 60 years; and (3) breaches of fiduciary responsibilities imposed in 1946, which do not depend upon the Trusteeship Agreement, but are claimed to arise from a contract implied-in-fact that obli- gates defendant to protect the health, well be- ing and economic condition of the Bikini people. Id. at 449. Judge Harkins denied defendant’s motion to dis- miss in Juda I on October 5, 1984. Id. at 458. The court held, regarding counts 2 and 3, that “[s]ome of the claims clearly involve transactions that occurred after March 16, 1975... Plaintifis are not barred by limita- tions from an offer of proof as to the origin, nature, and content of the alleged implied-in-fact contract and fidu- ciary relationship, if any, with respect to these claims.” Id. at 451. Regarding count 1, the court found that, “Congress has acted with respect to these plaintiffs and their rights.” Jd. at 458. The court concluded that “{aJll of the restraints of the Bill of Rights are applicable to the United States wherever it has acted” and denied defendant’s motion to dismiss for failure to state a claim. Id. Juda “include[d] as plaintiffs the 1,004 members of the Bikini community as of May 1, 1981, and is con- cerned with the claims of the inhabitants of Bikini atoll.” Juda I at 446. The plaintiffs in Juda alleged three causes of action: (1) an unlawful taking of Bikini Atoll from March 7, 1946, to January 24, 1979; (2) an unlawful taking that began on January 24, 1979, and would continue for the next 20 to 60 years; and (8) breaches of fiduciary responsibilities imposed in 1946, which do not depend upon the Trusteeship Agreement, but are claimed to arise from a contract implied-in-fact that obli- gates defendant to protect the health, well be- ing and economic condition of the Bikini people. Id. at 449. Judge Harkins denied defendant’s motion to dis- miss on October 5, 1984. Id. at 458. The court held, re- garding counts 2 and 3, that “[slome of the claims clearly involve transactions that occurred after March 16, 1975.... Plaintiffs are not barred by limitations from an offer of proof as to the origin, nature, and content of the alleged implied-in-fact contract and fiduciary rela- tionship, if any, with respect to these claims.” Id. at 451. Regarding count 1, the court ruled that “Congress has acted with respect to these plaintiffs and their rights.” Jd. at 458. The court concluded that “[alll of the restraints of the Bill of Rights are applicable to the United States wherever it has acted” and denied de- fendant’s motion to dismiss for failure to state a claim. Id. 30a Ill. The Compact, the Section 177 Agreement, and the Nuclear Claims Tribunal This section restates, with minor modifications, portions of the discussion in Juda v. [799] United States, 18 Cl. Ct. 667, 671-77 (1987) (dismissing com- plaint based on withdrawal of jurisdiction) (“Juda IT’). From the war-time occupation of Micronesia in 1944 to approval of the Trust Territory Agreement on July 18, 1947, United States military authorities controlled the Pacific Islands. In 1947 military government was ter- minated, and administration of the Trust Territory was delegated to the Secretary of the Navy. Some ele- ments of the takings claims and breach of contract claims in Juda and Peter occurred during this period. At the end of World War II, little doubt existed that Micronesia would remain under United States con- trol Whether to annex the area or to place it under the trusteeship system of the United Nations was debated vigorously. Military leaders and the Secretary of War urged outright annexation for strategic reasons. The Secretary of State, on the other hand, urged that Mi- cronesia be made a trusteeship in order to implement the principle of no territorial aggrandizement that had been expressed in the Atlantic Charter and the Cairo Declaration. Disagreement within the United States Government was not resolved until structures were developed in the United Nations relationship that as- sured the United States would have full control and full strategic rights in the area. These concerns resulted in a procedure that provided two categories of trustee- ship: (1) non-strategic trust areas, overseen by the General Assembly and the United Nations Trusteeship Council (the “UNTC”), and (2) territories designated as strategic trust areas, overseen by the Security Council and the UNTC. See generally “Foreign Relations of 3la the United States, Diplomatic Papers: Conferences at Malta and Yalta 1945,” at 92 (1955); R. Russell & J. Muther, A History of the United Nations Charter, 578 (1958). Eleven trusteeship agreements were approved un- der the United Nations Charter; ten were for non- strategic trusts, and one, the Trusteeship Agreement for the Pacific Islands, was designated as a strategic trust. The Trusteeship Agreement represents the only instance where the United States has assumed respon- sibility for administering a foreign territory under the authority of an international organization. The United Nations Charter, in Articles 75 through 85, provides for the international trusteeship system. Article 76(b) is a recognition of the principle that an administering authority is accountable to the interna- tional community for administration of the trust area. It obligates the administering authority to promote the political advancement of the inhabitants of the trust territories and their progressive development towards self-government or independence. Article 83 provides that the Security Council would exercise all functions of the United Nations relating to strategic areas. The Charter, however, does not authorize specifically the Security Council to approve the termination of a stra- tegic trusteeship agreement. Article 83 provides: 1. All functions of the United Nations relating to strategic areas, including the approval of the terms of the trusteeship agreements and of their alteration or amendment, shall be exer- cised by the Security Council. 2. The basic objectives set forth in Article 76 shall be applicable to the people of each strate- gic area. 32a 3. The Security Council shall, subject to the provisions of the trusteeship agreements and without prejudice to security considerations, avail itself of the assistance of the Trusteeship Council to perform those functions of the United Nations under the trusteeship system relating to political, economic, social, and edu- cational matters in the strategic areas. The Trusteeship Agreement is a treaty in the na- ture of a bilateral contract between the Security Coun- cil and the United States. Article 6 of the Trusteeship Agreement obligates the United States, in the dis- charge of its obligations under Article 76(b) of the Charter, to foster the development of such political in- stitutions as are suited to the trust territory and to promote the development of the inhabitants towards self-government or independence, as may be appropri- ate to the particular circumstances of the territcry and its peoples. The United States agreed to give the in- habitants of the Trust Territory a [800] progressively increasing share in the administrative services in the territory and to develop their participation in govern- ment. Article 15 of the Trusteeship Agreement provides: “The terms of the present agreement shall not be al- tered, amended or terminated without the consent of the administering authority.” During the negotiations leading to the agreement, the representative of the So- viet Union objected to this provision and proposed lan- guage that would have permitted the Security Council unilaterally to alter, amend, or terminate the Agree- ment. The United States representative refused to agree to the provision that would give the Security Council such power, and, in order to protect United States strategic interests, he insisted that no termina- 338 tion could occur without the consent of the United States. During the 1960s, in administering the Trusteeship Agreement, the United States initiated efforts to pre- pare the people for the transition to constitutional self- government. In 1965 the Congress of Micronesia was created, and elected leaders from all parts of the Trust Territory met to discuss common problems and to ex- plore the concept of political unity. Initially, the United States encouraged, and the Trust Territory leaders ex- plored, the possibility of commonwealth status for the various island groups. This proposal was not accepted generally. Further, differences in geography, history, and culture made it difficult to create a single govern- mental unit that included all of the inhabitants of the Trust Territory. Four separate political entities ulti- mately were established. On March 24, 1976, the United States approved the “Covenant To Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America.” Pub. L. No. 94-241, 90 Stat. 263 (1976) (codified as amended at 48 U.S.C. § 1681 (1982)). The constitution for the Federated States of Micronesia (the “FSM”) was ratified on July 12, 1978. The Republic of the Marshall Islands (the “RMI”) ap- proved its constitution in a referendum on March 1, 1979, and inaugurated a parliamentary constitutional government on May 1, 1979. The constitution for the Republic of Palau was approved at a United Nations- observed referendum on July 9, 1979. The Palau legis- lature subsequently voided the results of this referen- dum, and a second referendum was scheduled. The con- stitution was defeated in a referendum held October 23, .1979. In April 1980 the High Commissioner approved a Palau public law that provided a timetable for the in- 34a stallation of a government under the original constitu- tion. Under the terms of the bill, the Palau constitution took effect on January 1, 1981. After July 1, 1962, the Secretary of the Interior had exercised all necessary powers of civil government provided by the Trusteeship Agreement. On April 25, 1979, the Secretary recognized the new governmental entities of the Federated States of Micronesia, the Marshall Islands, and Palau and delegated to each the executive, legislative, and judicial functions of the gov- ernment of the Trust Territory of the Pacific Islands. Secretary Order No. 3039, Apr. 25, 1979. Order No. 3039 provided that the High Commissioner shall con- tinue to exercise all authority necessary to carry out United States’ obligations under the 1947 Trusteeship Agreement. This retained authority specifically listed eight categories of administrative functions, including Budget, Accounting, Relations with other United States Government. Agencies, and Foreign Govern- ments. All laws of the three governmental units were required to be submitted to the High Commissioner for approval. A Compact of Free Association was negotiated with each of the individual states. The governments of the United States and the Marshall Islands and the governments of the United States and the Federated States of Micronesia initialed the Compact of Free As- sociation on October 31, 1980. The Compact of Free Association with the government of Palau was initialed on November 17, 1980. Further reviews followed, and the final version of the Compact of Free Association with the Republic of Palau was signed on August 26, 1982, and with the Federated States of Micronesia, on October 1, 1982. The United States and the RMI signed the Compact and its related agreements on June 25, 1983. [801] After execution by the signatory govern- ments, the Compacts of Free Association were pre- sented to the people in plebiscites monitored by inter- national observers from the United Nations Trustee- ship Council. The Federated States of Micronesia plebiscite was held in June 1983, and the Compact was approved by seventy-nine percent. The RMI plebiscite was held in September 1983, and the Compact was ap- proved by fifty-eight percent. In Palau plebiscites were held on February 10, 1983, and on modified ver- sions on September 4, 1984, and February 1, 1986. On February 24, 1986, the President of the Republic of Pa- lau certified to the United States that the Compact of Free Association had been approved. The Compact was submitted to Congress on March 30, 1984. Action on the legislation was not completed in the 98th Congress, and the Compact was resubmitted to the 99th Congress on February 20, 1985. Hearings were held in each body, and each passed differing ver- sions. The legislation was not referred to a conference committee; differences were re [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1163%3A1. Public record. Not legal advice.