Temengil v. Trust Territory of the Pacific Islands
Opinion
DECISION
TABLE OF CONTENTS
Page
I. Facts. 6
II. Standards of Review . 8
III.The Evolution of United States Administration of the Trust Territory. 9
IV. Trusteeship Agreement Claims . 14
A. People of Spain's Comity Docterinend the Covenant1s Elimination of High Court Jurisdiction in the NMI over Actions Filed on or After January 9, 1978. . 16
1. The Covenant and its Implementation.17
2.' '48 U.S.C. § 1681(a) 21
3. Conclusion.25
B. The Federal Agency Status of the Trust Territory Government and the High Commissioner for Purposes of Determining Liability for Trusteeship Agreement Violations.26
[427]*427Page
C. Rulings on the Motions
1. Trust Territory Government and the High Commissioner . . . U> 35
2. The United States, the Interior Department and the Interior Secretary . 38
a. Monetary Claims . 43
b. Non-Monetary Claims .... 45
V. Civil Rights Acts Claims Against the Trust Territory Government and the High Commissioner
A. Introduction 48
B. § 1981 Claims
1. Jurisdiction: The Applicability of § 1981, Title VI and Title VII to the Trust Territory Government and the High Commissioner Through the Operation of Covenant § 502(a) (2) . . . .52
a. Statutory Construction Principles . .52
b. Application of the Statutory Construction Principles above to Covenant § 502(a)(2) .58
2. Issues Relevant to Defendants' Summary Judgment Motion . : . 65
C. § 1983 Claims.. 69
1. Applicability of the Equal Protection and Due Process Guarantees of the Fifth and Fourteenth Amendments to the United States Constitution to the Trust Territory Government and the High Commissioner. 70
2. The High Commissioner's Promulgation of the Trust Territory Headquarters Salary Plan As Action Under Color of Territorial Law for Purposes of § 1983
a. Action Under Color of Territorial Law.. 74
b. The Trust Territory of the Pacific Islands as a "Territory" for Purposes of § 1983 . 75
[428]*428Page
3. The Trust Territory Government and the High Commissioner as Suable "persons" under § 1983 . 81
D. Title VI Claims 82
E. Title VII Claims 84
VI. Civil Rights Acts Claims Against The United States, The Interior Department And The Interior Secretary . 86
A. § 1981 Claims 86
B. § 1983 Claims 87
C. Title VI Claims 87
D. Title VII Claims 88
VII. Trust Territory Code Bill of Rights Equal Protection Claims
A. Claims Against the Trust Territory Government and the High Commissioner . 89
B. Claims Against the United States, the Interior Department and the Interior Secretary . 90
VIII. Conclusion 91
LAURETA, District Judge:
Plaintiffs represent a proposed class of present and former Micronesian employees who have worked at the Trust Territory government's headquarters on Saipan in the Northern Mariana Islands (NMI) during the period between January 9, 1978 and the present. They bring this action under 42 U.S.C. § 1983. They assert monetary, injunctive, and declaratory claims under the Trusteeship Agreement,
Defendants move to dismiss for lack of subject matter jurisdiction and for failure to state a claim. They alternatively move for summary judgment. The Court treats the motions as alternative motions to dismiss for lack of subject matter jurisdiction or for summary judgment." For reasons explained in this decision, the Court rules as follows:
1. Motions By the Trust Territory government and the High Commissioner
The Court denies the dismissal and summary judgment motions by the Trust Territory and the High Commissioner as to all claims except plaintiffs' [430]*430Title VI and Title VII claims. On the basis of 42 U.S.C. S 2000d-3, the Court dismisses Title VI claims for lack of subject matter jurisdiction. Because of plaintiffs' failure to comply with 42 U.S.C. S 2000e-5(e), the Court dismisses the Title VII claims on the same ground.
2.■ Motions By the United States, the Interior bepartment and the Interior Secretary*
The Court dismisses the monetary Trusteeship Agreement claims, the § 1981 claims, the S 1983 claims, the Title VI claims, and the Trust Territory Code Bill of Rights equal protection claims against the United States, the Interior Department and the Interior Secretary for lack of subject matter jurisdiction. The Court denies dismissal and grants summary judgment to these defendants on plaintiffs' Title VII claims. It denies both dismissal and summary judgment on plaintiffs' non-monetary Trusteeship Agreement claims against these defendants.
In so deciding the Court specifically holds that:
1. Plaintiffs may assert their Trusteeship Agreement claims in this Court without first pursuing the claims in the Trust Territory High Court;
2. The Trust Territory government and the High Commissioner of the Trust Territory are agencies of the United States under 48 U.S.C. § 1681(a) and therefore they are federal agencies for purposes of determining liability for Trusteeship Agreement violations;
3. § 1981, Title VI and Title VII apply within the NMI to the Trust Territory government and the High Commissioner;
4. The equal protection and due process guarantees of the Fifth Amendment or Fourteenth Amendment to the United States Constitution operate against the Trust Territory government and the High Commissioner;
5.
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DECISION
TABLE OF CONTENTS
Page
I. Facts. 6
II. Standards of Review . 8
III.The Evolution of United States Administration of the Trust Territory. 9
IV. Trusteeship Agreement Claims . 14
A. People of Spain's Comity Docterinend the Covenant1s Elimination of High Court Jurisdiction in the NMI over Actions Filed on or After January 9, 1978. . 16
1. The Covenant and its Implementation.17
2.' '48 U.S.C. § 1681(a) 21
3. Conclusion.25
B. The Federal Agency Status of the Trust Territory Government and the High Commissioner for Purposes of Determining Liability for Trusteeship Agreement Violations.26
[427]*427Page
C. Rulings on the Motions
1. Trust Territory Government and the High Commissioner . . . U> 35
2. The United States, the Interior Department and the Interior Secretary . 38
a. Monetary Claims . 43
b. Non-Monetary Claims .... 45
V. Civil Rights Acts Claims Against the Trust Territory Government and the High Commissioner
A. Introduction 48
B. § 1981 Claims
1. Jurisdiction: The Applicability of § 1981, Title VI and Title VII to the Trust Territory Government and the High Commissioner Through the Operation of Covenant § 502(a) (2) . . . .52
a. Statutory Construction Principles . .52
b. Application of the Statutory Construction Principles above to Covenant § 502(a)(2) .58
2. Issues Relevant to Defendants' Summary Judgment Motion . : . 65
C. § 1983 Claims.. 69
1. Applicability of the Equal Protection and Due Process Guarantees of the Fifth and Fourteenth Amendments to the United States Constitution to the Trust Territory Government and the High Commissioner. 70
2. The High Commissioner's Promulgation of the Trust Territory Headquarters Salary Plan As Action Under Color of Territorial Law for Purposes of § 1983
a. Action Under Color of Territorial Law.. 74
b. The Trust Territory of the Pacific Islands as a "Territory" for Purposes of § 1983 . 75
[428]*428Page
3. The Trust Territory Government and the High Commissioner as Suable "persons" under § 1983 . 81
D. Title VI Claims 82
E. Title VII Claims 84
VI. Civil Rights Acts Claims Against The United States, The Interior Department And The Interior Secretary . 86
A. § 1981 Claims 86
B. § 1983 Claims 87
C. Title VI Claims 87
D. Title VII Claims 88
VII. Trust Territory Code Bill of Rights Equal Protection Claims
A. Claims Against the Trust Territory Government and the High Commissioner . 89
B. Claims Against the United States, the Interior Department and the Interior Secretary . 90
VIII. Conclusion 91
LAURETA, District Judge:
Plaintiffs represent a proposed class of present and former Micronesian employees who have worked at the Trust Territory government's headquarters on Saipan in the Northern Mariana Islands (NMI) during the period between January 9, 1978 and the present. They bring this action under 42 U.S.C. § 1983. They assert monetary, injunctive, and declaratory claims under the Trusteeship Agreement,
Defendants move to dismiss for lack of subject matter jurisdiction and for failure to state a claim. They alternatively move for summary judgment. The Court treats the motions as alternative motions to dismiss for lack of subject matter jurisdiction or for summary judgment." For reasons explained in this decision, the Court rules as follows:
1. Motions By the Trust Territory government and the High Commissioner
The Court denies the dismissal and summary judgment motions by the Trust Territory and the High Commissioner as to all claims except plaintiffs' [430]*430Title VI and Title VII claims. On the basis of 42 U.S.C. S 2000d-3, the Court dismisses Title VI claims for lack of subject matter jurisdiction. Because of plaintiffs' failure to comply with 42 U.S.C. S 2000e-5(e), the Court dismisses the Title VII claims on the same ground.
2.■ Motions By the United States, the Interior bepartment and the Interior Secretary*
The Court dismisses the monetary Trusteeship Agreement claims, the § 1981 claims, the S 1983 claims, the Title VI claims, and the Trust Territory Code Bill of Rights equal protection claims against the United States, the Interior Department and the Interior Secretary for lack of subject matter jurisdiction. The Court denies dismissal and grants summary judgment to these defendants on plaintiffs' Title VII claims. It denies both dismissal and summary judgment on plaintiffs' non-monetary Trusteeship Agreement claims against these defendants.
In so deciding the Court specifically holds that:
1. Plaintiffs may assert their Trusteeship Agreement claims in this Court without first pursuing the claims in the Trust Territory High Court;
2. The Trust Territory government and the High Commissioner of the Trust Territory are agencies of the United States under 48 U.S.C. § 1681(a) and therefore they are federal agencies for purposes of determining liability for Trusteeship Agreement violations;
3. § 1981, Title VI and Title VII apply within the NMI to the Trust Territory government and the High Commissioner;
4. The equal protection and due process guarantees of the Fifth Amendment or Fourteenth Amendment to the United States Constitution operate against the Trust Territory government and the High Commissioner;
5. The Trust Territory of the Pacific Islands is a "Territory" for purposes of § 1983; and
6. The Trust Territory government and the High Commissioner are suable "persons" under § 1983.
[431]*431I. FACTS
High Commissioner Executive Order No. 119 (May 25, 1979) —
■In January 1981 plaintiffs filed this class action under 42 U.S.C. § 1983 against the Trust Territory, the High Commissioner, the Interior Department, the Interior Secretary and the United States. —
Plaintiffs aver that the Trust Territory's salary plan [432]*432discriminates against them on the basis of race —
Defendants move to dismiss raider Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and under Rule 12(b)(6) for failure to state a claim. They alternatively' move under Rule 56 for-summary judgment. Initial argument on the motions occurred on May 8, 1981. While the motions were under advisement, plaintiffs amended their complaint on July 14, ■1982. After three stipulated time extensions, the Trust Territory and-the High Commissioner answered the First Amended Complaint on October 15, 1982. Defendants renewed their dismissal and summary judgment.motions and final oral argument occurred on February 24, 1983.
The Court has considered affidavits and other extra-pleading material submitted by the parties. —
[433]*433II. STANDARDS OF REVIEW
On a motion to dismiss for lack of subject matter jurisdiction, the Court must construe the complaint in plaintiffs favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The Court evaluates the entire complaint,, rather than the jurisdictional statement alone, to determine whether there is a basis for jurisdiction. 5 Wright & Miller, Federal Practice and Procedure; Civil § 1350 at 551-552 (1973); id., § 1206 at 77-78. It liberally reads the complaint to ascertain whether the allegations establish jurisdiction on grounds other than those pleaded. Hildebrand v. Honeywell, 622 F.2d 179, 181 (5th Cir. 1980); see Aguirre v. Automotive Teamsters, 633 F.2d 168, 174 (9th Cir. 1980).
Summary judgment is appropriate only if no material factual issue exists and movant is entitled to judgment as a matter of law. U.S. v. First National Bank of Circle, 652 F.2d 882, 887 (9th Cir. 1981). The Court must construe the pleadings, other record evidence and Its attendant inferences most favorably to plaintiffs. Harlow v. Fitzgerald, _ U.S. _, _, n.26, 102 S.Ct. 2727, 2737 n.26, 73 L.Ed.2d 396 (1982). A genuine factual issue may exist only if a viable legal theory would •entitle plaintiffs to judgment if they prove their asserted version of the facts. Ron Tonkin Gran Turismo v. Fiat Distributors, 637 F.2d 1376, 1381 (9th Cir. 1981), cert.denied _ U.S. _, 102 S.Ct. 128, 70 L.Ed.2d 109 (1981).
[434]*434III. THE EVOLUTION OF UNITED STATES ADMINISTRATION OF THE TRUST TERRITORY
This case arises during a period of profound change in the governance of the Trust Territory. Although the United States still administers the area under the Trusteeship Agreement, since the mid-1970's the Trust Territory's people have entered into new negotiated relationships with the United States which afford them expanded powers of self-government.
The Covenant
The parties' major disagreement concerns the effect'upon the Trust Territory government of the Covenant's provisions on judicial authority and the applicability of federal laws. In order to understand the historical context of these issues, it is helpful to examine the evolution of United States administration of the Trust Territory.'
Articles 73-91 of the United Nations Charter provide for a trusteeship system for dependent non-self-goveming areas. Since 1947 the United States has administered the NMI, the Caroline Islands and the Marshall Islands as a "strategic" trusteeship.
The United States-drafted —
Trusteeship Agreement Article 6.1 requires the United States to develop self-government or independence in the Trust 23/ Territory. — ' This obligation is recognized as the United States’ [436]*436most fundamental duty as trustee. See note 16, supra. Analyzing the history of governance by secretarial order, a court concluded in 1973 that '"there does not appear to have been any significant delegation of authority to the citizens of the Trust Territory." People of Saipan v. United States Department of the Interior, 356 F.Supp. 645, 655 (D.Haw.1973), aff'd as modified on other grounds 502 F.2d 90, 94-95, 98 and n.10 (9th Cir. 1974), cert.denied 420 U.S. 1003, 95 S.Ct. 1445, 43 L.Ed.2d 761 (1975).
Micronesian calls for meaningful self-determination 24/ resulted in the initiation of negotiations 25/ 'to define new status relationships with the United States. The NMI's historical pursuit of formal political union with the United States
Although the NMI officially remains part of the Trust Territory, most of the Covenant is already effective. Congressional approval of the agreement automatically implemented some of its provisions. See Covenant § 1003(a). A three-branch commonwealth government has functioned tinder a locally-drafted and promulgated Northern Mariana Islands Constitution (NMI Constitution)
Immediately after Congress approved the Covenant, the Interior Secretary created a temporary government to administer the, NMI separately from the rest of the Trust Territory during the interim preceding the § 1003(b) proclamation. Interior Department Secretarial Order No. 2989, 41 Fed.Reg. 15892 (1976) (Order 2989). Order 2989 granted the Congress of Micronesia and the High Court limited residual authority in the NMI during the order’s period of effectiveness. Id.. part VII, § 2; id., part XII. When the § 1003(b) proclamation issued on January 9, 1978, Order 2989 became ineffective. Id. part XIV; see Sablan Construction Co. v. Trust Territory. 526 F.Supp. 135, 140 (D.N.M.I.App.Div. 1981). The Trust Territory and the High Commissioner concede that on that date the Covenant and the NMI Constitution completely superceded the Tirust Territory government's secretarially-conferred NMI authority. Answer to the First Amended Complaint by Defendants Trust Territory and High Commisslcfier, paragraphs 5, 9, 10, 19.
[438]*438The Trust Territory government now consists of an executive branch headed by the High Commissioner and a judiciary headed by the High Court. The High .Commissioner's functions are primarily budgeting and accounting responsibilities for funds which the Trust Territory government transfers from the United States to the new governments.of the Federated States of Micronesia (FSM) , the Republic of Palau and the Republic of the Marshall Islands.' Defendants United States Memorandum in Support of Defendants' Motion to Dismiss at 7. The Interior Secretary dissolved the Congress of Micronesia through Interior Department Secretarial Order No. 3027, 43 Fed.Reg. 49858 (1978). The FSM Congress, the Republic of Palau's Olbiil Era Kelulau and the Republic of the Marshall Islands' Nitijela now exercise plenary legislative power within their respective jurisdictions in accordance with locally drafted and adopted constitutions.
The Trust Territory government's headquarters remains on Saipan in the NMI.
Although the President's Representative was evidently authorized to discuss relocation during negotiations, his letter states that [439]*439the subject never arose. Id.. During Senate hearings on the Covenant, the President's Representative affirmed the United States' "long recognized" responsibility to fund the transfer of the headquarters to a site chosen by the Micronesians. Hearing on H.R. Res. 549 Before the United States Senate Committee on Foreign Relations, 94th Cong., 1st Sess. 41, 44 (1975)(Senate Foreign Relations Committee Hearing on H.R.Res. 549). Other Covenant legislative history suggests that the negotiators considered studying the possibility of relocating the headquarters. See S.Rep.No. 433, supra, at 219, 227-230, 242. Testimony before Congress acknowledged the Trust Territory government's presence in the NMI as an unresolved major problem. S.Rep.No. 596, 94th Cong.2d Sess. 9 (1976)(S.Rep.No. 596), reprinted in 1976 U.S. Code Cong. & Ad. News 448, 456 (1976 USCAN).
IV. TRUSTEESHIP AGREEMENT CLAIMS
The Trusteeship Agreement creates direct and affirmative rights which are judicially enforceable in federal courts. People of Saipan. 502 F.2d at 97. Congress, the executive branch and commentators have described those rights as unprecedented among trusteeship agreements in their detail, precision and scope. S.Rep.No. 471, 80th Cong. 1st Sess. 5, (1947); Trusteeship Agreement for the Territory of the Pacific Islands: Hearing on S.J. 143 Before the United States Senate Committee on Foreign Relations, 80th Cong. 1st Sess. 6 (1947)(testimony-by Secretary of State Marshall); L. Goodrich, E. Hambro & A. Simons, Charter [440]*440of the United Nations: Commentary and Documents 508 (3d ed. 1969); J. McNeill, The Strategic Trust Territory in International Law 218, 230 (197¿)(doctoral thesis reproduced by University Microfilms International, 1976).
Defendants seek dismissal or summary judgment on three grounds. First, they state that plaintiffs must initially assert their Trusteeship Agreement claims in the High Court. They predicate this argument upon People of Saipan, 502 F.2d at 99. For reasons explained in Part IV-A, the Court rejects this contention. Second, defendants maintain that the Trust Territory government is. not a federal agency, and that therefore they cannot be' held liable for the High Commissioner's actions as territorial chief executive. This argument fails for reasons stated in Part IV-B. Third, the United States, the Interior Department and the interior Secretary (the Interior defendants) submit that the Trusteeship Agreement is not judicially enforceable in this action because: (1) local law provides an "alternative enforcement mechanism", and (2) the Trusteeship Agreement does not specifically prohibit wage discrimination in Trust Territory government employment. The Court rejects this argument in Part IV-C-2.
The Court rules that it has subject matter jurisdiction and holds that the Trust Territory government and the High Commissioner are federal agencies for purposes of Trusteeship Agreement' analysis. It accordingly denies dismissal as to plaintiffs' claims against those defendants. Since material factual issues exist concerning these claims, the Court also denies summary [441]*441judgment. The First Amended Complaint fails to sufficiently establish a statutory basis for jurisdiction over monetary claims against the United States and the Interior defendants. As to these three defendants, the Court accordingly dismisses plaintiffs’ monetary.claims.and denies dismissal and summary judgment on these non-monetary claims.
A. People of Saipan's Comity Doctrine and the Covenant's Elimination of High Court Jurisdiction in the NMI Over Actions Filed On or After January 9, 1978
Approximately two years before Congress approved the Covenant and created this Court, the Ninth Circuit declared in People of Saipan that as a.matter of comity litigants should initially assert Trusteeship Agreement claims in the High Court in cases challenging the High Commissioner's actions as territorial chief executive (the comity doctrine). 502 F.2d at 99. Citing that statement, defendants argue that the Court presently lacks subject matter jurisdiction.
The Court disagrees. Congress and the people of the NMI have dramatically and permanently altered the repose of governmental power and other circumstances which existed when People of Saipan announced the comity doctrine. By fundamentally reconstituting judicial authority in the NMI, the Covenant's judiciary provisions, as implemented by federal legislation and the NMI Constitution, implicitly
1. The Covenant and Its Implementation
Covenant 402(a) and 48 U.S.C. § 1694(a)
Defendants apparently believe that this intent also encompasses the High Court. The Trust Territory and the High Commissioner admit in their Answer to the First Amended Complaint that on January 9, 1978 the Covenant and the NMI Constitution superceded the Trust Territory government's secretarially delegated authority. Neither these defendants, the United States nor the Interior defendants identify the purported legal source of High Court jurisdiction over actions filed in the NMI after that date. Covenant 505 provides for the limited continuity of Trust Territory laws.
[443]*443This outwardly plausible rationale ignores the full text of § 505. Section 505 incorporates pre-Covenant laws only to the extent that the laws are consistent with applicable federal laws and treaties, and subsequent action by the NM1 government. The question thus becomes whether High Court — jurisdiction is consistent with the policies which subsist the judiciary provisions in the Covenant and the NMI Constitution. With respect to actions filed on or after January 9, 1978, the answer to the question is no.
Construction of the Covenant must comport with the guiding principle that "circumstances not plainly covered by the terms of a statute
The Covenant's legislative history and implementation demonstrate that the purpose of its judiciary provisions was to reconstitute judicial authority in the NMI. The joint report of the Senate Foreign Relations and Armed Services Committees-
[445]*445The continued jurisdiction of the High Court in the NMI is incompatible with the permanent judicial system designed by the Covenant. It is not established by the Constitution or laws of the NMI. It is an Interior Department creation from which there is no federal appeal. —
2. 48 U.S.C. § 1681(a)
An analysis of the Covenant's federal judiciary provisions and 48 U.S.C. § 1694a in light of 48 U.S.C. $ 1681(a) confirms this conclusion. Section 1681(a) states:
Until Congress shall further provide for the government of the Trust Territory of the Pacific Islands, all executive, legislative, and judicial authority necessary for the civil administration 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.
In Sablan Construction Co. v. Trust Territory, this Court’s appellate division examined the interrelationship between § 1681(a) , Covenant § 402(b) and 48 U.S.C. i 1694a(b). —
One jurisdictional issue in Sabían Construction —
Like the governments of territories and possessions under United States sovereignty, the Trust Territory government of which the High Court is part is "created pursuant to the authority of Congress." Sabían Construction accurately characterized the High Court’s judicial power as delegated United States authority emanating from Congress. —
[448]*448As Sabían Construction concluded, Congress did exactly that by approving the Covenant's conferral of judicial authority upon the federal court and upon local courts created or specified by NMI law. The purpose of § 1681(a) was to authorize the interim continuance of the Trust Territory government created by the Interior Secretary until Congress enacted pending organic legislation. See H.R.Rep.No. 1767, 83d Cong. 2d Sess. 2 (1954); S.Rep. No. 371, 83d Cong. 1st Sess. 2 (1953), reprinted in 99 Cong.Rec. 6414-6415 (1953). —
The Covenant represents the United States' fulfillment of its obligation under the Trusteeship Agreement to develop and to grant self-government or independence in the NMI in accordance with the wishes of the NMI's people. See, e.g.. S.Rep.No. 433, supra at 23, Like the Sabían Construction court, this Court finds it contextually significant that the Covenant mandated the realignment of judicial authority well before the termination of the trusteeship. 526 F.Supp. at 139 and n.13. This fact assumes even greater importance when viewed within the historical background of Micronesian pursuit of federal court access. S.Rep.No. 433, supra, at 43. The legislative history of both the Covenant and the NMI Constitution reveals that the elimination'of the pre-Covenant judicial system is an objective which is vital to the Covenant's spirit.
[449]*449The Court accordingly rejects the argument that Covenant § 505 implicitly preserves High Court jurisdiction. The continued presence of the Trust Territory Government in the Northern Mariana Islands presents an unanticipated situation not addressed by the framers of the Covenant and the Constitution. Therefore, the Court must look to the fundamental policies embodied in the Covenant and in the Constitution regarding judicial authority in reaching a decision on this issue. Rose, _ U.S. at _, 102 S.Ct. at 1203. Based on these considerations the Court is of the opinion that defendants' construction of § 505 would frustrate rather than nurture the fundamental policies regarding judicial authority. If Congress and the NMI's people had intended not to eliminate the High Court’s NMI jurisdiction over actions filed on or after January 9, 1978, the Covenant or the NMI Constitution logically would have reflected that desire either in plain language, in the legislative history, or by delaying the investiture of jurisdiction in the new federal and NMI courts. See 526 F.Supp. at 139. Neither the Covenant nor the NMI Constitution manifests that intention. To adopt defendants' jurisdictional analysis would be to impute to the framers of those documents the intention to indeterminately perpetuate the very federally unreviewable and locally unaccountable judicial apparatus which the framers chose to discard. This is an absurd construction which the Court must avoid. United States v. Turkette. 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981); Melong v. Micronesian Claims Commission, 569 F.2d 630, 634 (D.C.Cir. 1977). The Court holds that when the NMI Constitution took effect on January 9, 1978, the High Court lost jurisdiction over any actions filed in the NMI on or after that date, including actions against the Trust Territory government. —
[450]*4503. Conclusion
For the reasons above, Fulfilling that responsibility, the Court longer prevents the exercise of jurisdiction over Trusteeship ^Agreement claims which have been initially asserted in the High Court. Although district courts should not prematurely anticipate the judicial invalidation of circuit precedent,
concludes that responsibility the Court concludes that the policies embodied in the Covenant's judiciary provisions supersede People of Saipan's comity doctrine. The deferral of jurisdiction on comity grounds necessarily presumes the -existence of concurrent jurisdiction in the court deferred to. See, e.g., Rose, _ U.S. at _, 102 S.Ct. at 1203; Fay v. Noia, 372 U.S. 391, 420, 83 S.Ct. 822, 838, 9 L.Ed.2d 837 (1963). By terminating the High Court's NMI jurisdiction, the Covenant nullified the basic premise underlying People of Saipan's comity doctrine. The Court's recognition that it may exercise jurisdiction effectuates People of Saipan's paramount objective. That objective is to ensure that Micronesians have "a forum which can hear their claim that the High Commissioner has violated the duties assumed by the United States in the Trusteeship Agreement." 502 F.2d at 100.
[451]*451B. The Federal Agency Status of the Trust Territory Government and the High Commissioner For Purposes of Determining Liability For Trusteeship Agreement Violations
The United States and the Interior defendants maintain that they cannot be held liable for Trusteeship Agreement violación! by the Trust Territory government because the Trust Territory government is not a federal agency. Plaintiffs respond with the equally sweeping assertion that Trust Territory government employees are necessarily United States government employees due to the congressional, presidential and secretarial delegation through which the Trust Territory government derives its authority. While the Court rejects plaintiffs' syllogism, it holds that the Trust Territory government and the High Commissioner are agencies of the United States under 48 U.S.C. § 1681(a) and therefore oust be considered federal agencies for purposes of determining liability for Trusteeship Agreement violations.
Like other territorial governments under United States
On the other hand, it does not follow that the Trust Territory government is not a federal agency for purposes of Trusteeship Agreement analysis merely because the Interior Department permits it to function with a degree of autonomy.
Defendants’ argument overlooks the language; of 48 U.S.C. § 1681(a) and the Interior Department secretarial order which defines the Trust Territory government's authority. Trusteeship Agreement Article 3 grants the United States "full powers of administration, legislation and jurisdiction" subject to the specific obligations imposed by the agreement. .’See note 19, supra. Title 48 U.S.C. § 1681(a) instructs that the United States' powers shall be exercised by "such agency or agencies as the President may direct or authorize" until Congress provides otherwise. See p. 21. supra. The Interior Secretary obtained $.1681(a) authority pursuant to presidential delegation —
The Trust Territory High Court itself has recognized that the Trust Territory government is a S' 1681(a) federal agency:
[454]*454The Trust Territory of the Pacific Islands appears to be quite definitely of a dual nature. It certainly is the means by which the United States carries out the major part of its responsibilities as administering authority under the Trusteeship agreement... Furthermore, the Trust Territory Government seems clearly intended to come within the meaning of the words "such agency or agencies as the President of the United States may direct or authorize" as used in 48 U.S.C. § 1681(a) in providing for the government of the area. The Trust Territory appears to act sometimes as a part of the Department of the Interior and sometimes as a separate, though subordinate, body having a will of its own.
Alig v. Trust Territory of the Pacific Islands, 3 T.T.R. 603, 612-613 (H.C.App.Div. 1967). See also Castro v. United States. 500 F.2d 436, 437 (Ct.Cl. 1974)("the Government of the Trust Territory of the Pacific Islands, administer[s] Saipan under a delegation to the United States from the United Nations...") (emphasis added). Secretarial Order 3039 is the most recent Interior Department regulation from which the Trust Territory government derives its authority. Section 3 of Order 3039 identifies governmental functio which 'are retained by the United States" (emphasis'added). Subsection 3.a provides in pertinent part:'
The High Commissioner of the Trust Territory of the Pacific Islands, under the general supervisory authority of the Secretary, shall continue to exercise all authority necessary • to carry out the obligations and responsibilities of the United States under the 1947 Trusteeship Agreement, in order to insure that no action are [sic] taken that would be inconsistent with the provisions of such Trusteeship Agreement, this Order, and with existing treaties, laws, regulations, and agreements generally applicable in the Trust Territory of the Pacific Islands (emphasis added).
[455]*455One of the functions expressly reserved to the United States through the High Commissioner is the power under § 3.a(8) to staff the Trust Territory government. Subsection 3.a(8) was the primary authority invoked by the High Commissioner when promulgating the pay scales which plaintiffs challenge. See note 3 , supra. Given the language of § 1681(a) and Order 3039 § 3.a, it requires a contortion of logic to avoid the conclusion that the Trust Territory government and the High Commissioner are federal agencies for purposes of Trusteeship Agreement analysis.
Although courts have determined that the Trust Territory government is not a "federal agency" for purposes of certain statutes or general government contracting, defendants do not cite nor has the Court discovered any authority indicating that the Trust Territory government is not a federal agency for purposes of fulfilling the United States' Trusteeship Agreement obligations. Only two of the cases upon which defendants rely are binding on this Court.
[A]ny definition [of the term agency] can be of only limited utility to a court confronted with one of the myriad organizational arrangements for -getting- the- business of the government done... The unavoidable fact is that each new arrangement must be examined anew and in its own context.
Public Citizen Health Research Group v. Department of Health, Education and Welfare. 668 F.2d 537, 542 (D.C.Cir. 1981). See also Lewis v. United States, 680 F.2d 1239, 1242-1243 (9th Cir. 1982)(holding that Federal Reserve Banks — are not federal agencies for purposes of’the’Federal Tort Claims Act and noting that Reserve Banks and their employees have properly been held to be federal instrumentalities for purposes of other statutes).
The rationale underlying the Ninth Circuit's holdings in People of Saipan implicitly acknowledged that the High Commissioner is a federal agency for purposes of fulfilling the United States' Trusteeship Agreement obligations. The district court ruled that the High Commissioner was exempt from Administrative Procedure Act review under a statutory exception for the governments of the United States territories or posse'ssions. As an integral part of [457]*457its reasoning, the district court otherwise accepted the argument that, "under general principles of agency law and court decisions defining the term 'federal agency', the High Commissioner and his immediate subordinates in the executive branch of the Trust Territory Government are federal officials operating as a component of the Department of the Interior." 356 F.Supp at 657 (emphasis added). The page in the district court’s opinion which contained the quoted language was among those which the Ninth Circuit cited in affirming the district court's conclusions. See 502 F.2d at 95. The Ninth Circuit specifically held that "because of the process of his appointment, the High' Commissioner has the responsibility to act in a manner consistent- with the duties assumed by' the United States itself in the Trusteeship Agreement." Id. at 98. It also cited with apparent approval an Italian court decision which held that Italy's Trusteeship Administrátor for Somoliland was an organ of the Italian state because he derived his authority from that state. Id. at 98 n.10. By deciding that appointment by the President and confirmation by the Senate require the High Commissioner to comply with the Trusteeship Agreement, the Ninth Circuit also necessarily concluded that the High Commissioner is a federal agency for purposes of Trusteeship Agreement analysis, notwithstanding the High Commissioner's non-agency status under the Administrative’Procedure Act.
Defendants observe that courts have described the Trust Territory government as a "quasi-sovereign" —
Defendants misconceive both the nature and the source of .the Trust Territory government's authority. Sovereignty is an elusive concept
The Court accordingly decides that, because the Trust Territory government and the High Commissioner are federal agencies under 48 U.S.C. § 1681(a), they necessarily are federal agencies for purposes of determining liability for Trusteeship Agreement violations.
C. Rulings on the Motions
1. The Trust Territory Government and the High Commissioner
The Court concludes that' it has subject matter jurisdic-460 plaintiffs’ monetary and non-monetary Trusteeship Agreement claims against the Trust Territory government and the High Commissioner. A claim "arises under" a treaty for purposes of federal question jurisdiction under 28 U.S.C. § 1331 if the claim asserts a right created by treaty and the construction of a treaty will determine the claim's disposition. Skokomish Indian Tribe v. France, 269 F.2d 555, 558 (9th Cir. 1959); see Buechold v. Ortiz, 401 F.2d 371, 372 (9th Cir. 1968). Congress intended this Court's federal question jurisdiction under 48 U.S.C. § 1694a(a) to be coextensive with § 1331 jurisdiction. See S.Rep.No. 433, supra, at 72.
Although the Trust Territory government is a federal agency for purposes of Trusteeship Agreement liability analysis, jurisdiction over plaintiffs' monetary claims against the Trust Territory government is not impaired by the presence of jurisdictional obstacles to suit against the United States itself. Like other territorial governments exercising delegated congressional authority, the Trust Territory government is a subordinate^-and administratively separate entity in relation to the United States government. —
When the Supreme Court clarified the limits of the government immunity doctrine in Nevada v. Hall, it noted that the basis for the doctrine is "'the logical and practical ground that there can be no legal right as against the authority that makes the law upon which the right depends'". Id. at 415-416, quoting Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S.Ct. 526, 527, 51 L.Ed. 834 (1907). —
The Court accordingly denies the dismissal motions by the Trust Territory government and the High Commissioner. Because the record discloses unresolved material factual issues, the Court also denies summary judgment. No Oilport v. Carter, 520 F.Supp. 334, 373 (W.D. Wash. 1981).
2. The United.States, The Interior Department and the Interior Secretary
The United States and the Interior defendants move for dismissal on the additional ground that the Trusteeship Agreement does not confer judicially enforceable rights against pay scale discrimination. Defendants primarily base this argument upon the following statement by the Ninth Circuit in People of Saipan;
The extent' to which an international agreement establishes affirmative and judicially enforceable obligations without implementing legislation must be determined [464]*464in each case by reference to many contextual factors: the purposes of the treaty and the objectives of its creators, the existence of domestic procedures and institutions appropriate for direct implementation, 'the availability and feasibility of alternative enforcement methods, and the immediate and long-range social consequences of self- or non-self-execution.
502 F.2d at 97 (citation omitted). Defendants contend that local laws provide "alternative enforcement methods" within the meaning of the statement above.
Pefendants have misinterpreted People of Saipan's analysis. The "alternative enforcement mechanisms" to which the court referred wer-e alternative international forums. As reflected in the paragraph of the People of Saipan opinion immediately preceding the section quoted above, the court was rejecting defendants' argument that a sufficient enforcement mechanism exists in the United Nations Security Council, where the United States possesses veto power. See id. and n.9. The court did nor suggest that a Trusteeship Agreement right is judicially unenforceable when the alleged illegal action by the United States or its Trust Territory government also potentially violates other federal laws or local laws. It merely applied a test developed by scholarly commentary for determining whether an international agreement is judicially enforceable at all as United States domestic law. Because the People of Saipan definitively resolved that threshold question, the formulation quoted is not the relevant inquiry here.
[465]*465Defendants also maintain that this case is distinguishable from People of Saipan and that therefore People of Saipan's recognition of the Trusteeship Agreement's judicial enforceability is inapplicable. In People of Saipan, the plaintiffs sought to enforce the United States' explicit obligations under Trusteeship Agreement Article 6.2 to "regulate the use of natural resources." and to "protect the [Trust Territory's] inhabitants against the loss of their lands and resources." Defendants reason that the Trusteeship Agreement does not afford protection against, pay scale discrimination in Trust Territory government employment because Article 6.3's non-discrimination guarantee
Defendants overlook the purposive approach to treaty construction articulated by the Supreme Court for the enforcement of treaties as domestic law.
The question pf whether defendants have violated the Trusteeship Agreement ultimately will be resolved by examining [467]*467the instrument as a whole in light of its purposes and legislative history, rather than by looking solely at Article 6.3. In addition, the Court will seek interpretive guidance and parallels in other areas of domestic law and in "relevant principles of international law... which have achieved a substantial degree of codification and consensus." People of Saipan, 502 F.2d at 99. The Court rejects defendants' mechanical interpretive approach.
The Court also finds no merit in the argument that the United States and the Interior defendants are free from Trusteeship Agreement liability merely because it was the High Commissioner who. promulgated the disputed pay scales. Throughout this proceeding, defendants have vigorously asserted that they are trustees in relation to the Trust Territory's people. Defendants also correctly maintain that a trustee can properly delegate duties which it would be unreasonable to require the trustee to personally perform. See Restatement, Second, Trusts § 171, 'comment d (1959). Under correlative fiduciary principles, the trustee must exercise general supervision over- the conduct of its delegate, and may be held liable to the beneficiary, if it permits, acquiesces in or fails to compel the redress of acts by the delegate which would constitute a breach of trust if committed by the trustee. See id. § 151, comment k; id. § 225(2). The Interior Department's own regulations therefore properly reflect that the Interior Secretary's delegation of authority does not relieve him of responsibility for action taken pursuant to the delegation. Interior Department [468]*468Manual 200.1.9, 42 Fed.Reg. 31661 (1977). As a congressional committee has stated, "[Micronesia] is a U.S. Trust Territory, and if the United States has fulfilled its trust to the inhabitants badly, then those responsible for this condition ought to also be responsible for its remedy," S.Rep.No. 223, 90th Cong. 1st Sess. 8 (1967)(amending the Peace Corps Act). Due to the present procedural posture of this case and the absence of full factual development, it would be premature to determine whether or not the United States and the Interior defendants have violated the Trusteeship Agreement. Nevertheless, under the legal doctrines attendant to the United States' admitted position as trustee, defendants cannot evade liability merely because they delegated the performance of their fiduciary duties to the Trust Territory government and the High Commissioner.
a. Monetary Claims
Although People of Saipan's comity doctrine does not constrain the Court's jurisdiction, a defect in the complaint requires the dismissal of plaintiffs' monetary claims against the United States. —
[469]*469When interpreted in plaintiffs' favor, the complaint possibly grounds jurisdiction under the Tucker Act.
While the Court must construe the complaint in plaintiffs' favor, the policy of generous construction cannot supply essential jurisdictional facts which are not pleaded. The absence of allegations limiting each claim to $10,000 is fatal to Tucker Act jurisdition. Sheehan v. Army and Air Force Exchange Service, 619 F.2d 1132, 1137 n.7 (5th Cir. 1980), rev'd on other grounds 456 U.S. _, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982).
The Court also dismisses the monetary claims against the Interior Department and the Interior Secretary. These claims effectively operate against the United States. See Dugan v. Rank, 372 U.S. 609, 621, 83 S.Ct. 999, 1007, 10 L.Ed.2d 15 (1963). As explained above, plaintiffs have not successfully invoked Tucker Act jurisdiction over the United States. Even if plaintiffs had done so, the dismissal of the Interior defendants would still be . required. The only proper Tucker Act defendant is the United States. Bauer v. McCoy. CV 81-19, Decision at 15 n.27 (D.N.M.I. 1982); cf. Davis v. United States, 667 F.2d 822, 825 (9th Cir. [470]*4701982) (Federal Tort Claims Act confers jurisdiction only over the United States and not against individual defendants).
b. Non-Monetary Claims
The Administrative Procedure Act (APA)
Construed in plaintiffs' favor, the First Amended Complaint alleges that the United States and the Interior defendant; have failed to act as required by the Trusteeship Agreement. Plaintiffs aver that the Trust Territory government has discriminated against -them "under the direction and supervision of the Department of the Interior and the United States." First Amended Complaint, Count I, paragraph 13. Plaintiff Manglona’s affidavit [471]*471and its admissible appendices indicate that during the years 1978, 1979 and 1980 plaintiff repeatedly complained by letter to the High Commissioner and other federal officials about the Trust Territory government's employee pay schedules. —
Neither the injunction nor the declaration which plaintiffs seek would constitute a monetary decree against the United • States government. Plaintiffs ask the Court to enjoin defendants from "maintaining" or "continuing" the disputed pay scales . With respect to the United States and the Interior defendants, an injunction so framed would effectively require these defendants to supervise the pay scale policies of their delegate the Trust Territory government as allegedly mandated by the Trusteeship Agreement.
Finally, the § 706(a)(1) "agency discretion" exception to APA review is unavailable to defendants. Section 706(a)(1) delineates a very narrow exception which covers only those rare instances in which statutes are so broadly drawn that there is no law to apply. Citizens to Preserve Overton Park Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820-821, 28 L.Ed.2d 136 (1971); Rank v. Nimmo, 677 F.2d 692, 699 (9th Cir. 1982), cert.denied _ U.S. _, _, 103 S.Ct. 210, 74 L.Ed.2d 168 (1982). This is not an instance in which there is no law to apply. As the Ninth Circuit decided in People of Saipan, the Trusteeship Agreement articulates direct and affirmative legal obligations which are not too vague for application and enforcement. 502 F.2d at 97, 100. The Article 6 obligations at issue here are unequivocally stated in mandatory and non-discretionary language.
For these: reasons, the Court concludes that it has jurisdiction over plaintiffs' injunctive and declaratory claims. Defendants' dismissal motions are denied. Plaintiffs have yet to prove that defendants' alleged omissions violate the Trusteeship Agreement. The unresolved factual issues which are relevant to this question necessitate the denial of summary judgment. 520 F.Supp. at 373.
[473]*473V. CIVIL RIGHTS ACTS CLAIMS AGAINST THE TRUST TERRITORY GOVERNMENT AND THE HIGH COMMISSIONER
A. Introduction
The parties do not dispute the applicability of § 1981, § 1983, Title VI and Title VII in the NMI since January 9, 1978. Under Covenant § 502(a)(2), federal laws which generally apply in the States and in Guam also apply in the NMI unless the Covenant provides otherwise. —
Plaintiffs contend that, whatever may be the applicabi-91/ lity of these civil rights law elsewhere in the Trust Territory^
Defendants reply that § 502(a)(2) does not affect the Trust Territory government and that therefore the Trust Territory government and the High Commissioner cannot be sued under § 1981, § 1983, Title VI or Title VII. This argument essentially rests upon two premises.
First, defendants submit that § 502(a)(2) does not manifest congressional intent to apply federal legislation to the Trust Territory government. Neither § 502(a)(2) nor any of the [474]*474civil rights laws above expressly states that it applies to the Trust Territory government. Defendants state that federal legislation can apply to the Trust Territory government only if Congress specifically includes the Trust Territory within the legislation's coverage. For this proposition defendants cite the District of Columbia Circuit's decision in Gale v. Andrus, 643 F.2d at 833-834.
Second, defendants assert that the Trust Territory government has judicially recognized "qualified" or "quasi" • sovereign status as an entity distinct from the United States government. Defendants do not clearly articulate how or why this status insulates the Trust Territory government from the Covenant. Defendants apparently reason that Trust Territory government cannot be affected by Covenant provisions which the United States government negotiated and enacted into law.
The Court rejects defendants' position. Gale does not unequivocally stand for the "specific inclusion" statutory construction theory which defendants advance. To the extent that Gale actually supports that theory, the Court must decline to follow the decision. When statutory language is inconclusive, as it is in Covenant § 502(a)(2), the precedentiaily substantiated, logical and realistic inquiry is whether the application of federal legislation to the Trust Territory government is consistent with: (1) the manifest purposes and enactment history of the legislation; and (2) the United States' fiduciary obligations to the people of the TruBt Territory under the Trustee[475]*475ship Agreement. Finally, on the basis of the analysis in Part IV-B, supra. the Court rejects defendants' contention that the Trust Territory government's unique but subordinate status exempts it from compliance with federal law. The Trust Territory's qualified and administratively conferred authority derives ultimately from Congress. That authority is not an immunity shield against federal legislation in general or the Covenant in particular. Sablan Construction, 526 F.Supp. at 140.
^ Court confronts four questions. Section 1981, Title VI and Title VII are sources of substantive federal rights which § 502(a)(2) confirms as applicable in the NMI. The first question is whether the application of these statutes to the Trust Territory government through § 502(a)(2) is consistent with the purposes and legislative'history of the Covenant and with the Trusteeship Agreement. The Court decides that it is. The Court accordingly holds that the Trust Territory government and the High Commissioner may be sued under § 1981, Title VI and Title VII for their actions taken in the NMI on or after January 9, 1978. In contrast to the statutes above, § 1983 is not a source of substantive rights. Chapman v. Houston Welfare Rights Organization. 441 U.S. 600, 618, 99 S.Ct. 1905, 1916, 60 L.Ed.2d 508 (1979). In order to determine whether plaintiffs may maintain their § 1983 claims, it'is necessary to look beyond,§ 502(a)(2) and examine the rights which plaintiffs seek to vindicate as well as § 1983's purposes and legislative history. The rights which plaintiffs seek to enforce under § 1983 are federal constitutional guarantees of due process [476]*476and equal protection. Thus, the second question is whether those guarantees are restraints against the High Commissioner as territorial chief executive and against the Trust Territory government. The Court answers this question affirmatively. Section 1983 authorizes suits against "persons" who act under color of law of fqny "State or Territory." The third question thus is whether the Trust Territory is a "Territory" for purposes of § 1983. The fourth question is whether the Trust Territory government and the High Commissioner are suable "persons" under that statute. After analyzing § 1983's purposes and legislative history in light of the Trusteeship Agreement's obligations, the Court also answers the third and fourth questions affirmatively.
For these reasons and others stated below, the Court denies defendants' dismissal and summary judgment motions as to plaintiffs' § 1981 and §.1983 claims. Because the provision of employment is not the primary objective of federal financial assistance to the Trust Territory, 42 0.S.C. § 2000d-3 compels the dismissal of plaintiffs' Title VI claims for lack of subject matter jurisdiction. The Court dismisses plaintiffs' Title VII claims on the same ground for failure to comply with 42 U.S.C. § 2000e-5(e).
[477]*477B. § 1981 Claims
1. Jurisdiction: The Applicability of § 1981, Title VI and Title VII to the Trust Territory Government and the High Commissioner Through the Operation of Covenant § 502(a)(2)
Title 42 U.S.C. § 1981 provides:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties , taxes, licenses, and exactions of every kind, and to no other.
Because § 1981 has applied in the NMI at least since January 9, 1978, the NMI is a "State" or a "Territory" for purposes of § 1981. —
a. Statutory Construction Principles
Under Trusteeship Agreement Article 3, the United States' powers of administration, legislation and jurisdiction include
Their point of disagreement apparently is the meaning of "manifest" intent. Plaintiffs maintain that § 502(a)(2) is an exercise of Article 3 authority which affects the Trust Territory government equally with other persons and entities in the NMI. —
Gale v. Andrus is the foundation of this "specific inclusion" argument. In Gale the two-judge majority ostensibly asserted the Trust Territory's "Lack of Specific Statutory Inclusion" in the Freedom of Information Act (FOIA) —
First, the majority stated that "the Trust Territory should not be required to comply with the APA or the FOIA because [479]*479neither statute specifically or implicitly covers it." Id. at 833 (emphasis added). This acknowledgment that federal laws can implicitly apply to the Trust Territory- government moderates and effectively nullifies Gale's pronouncements concerning specific inclusion.
Second, the majority cited with apparent approval the statutory construction principles articulated in People of Enewetak v. Laird. —
[480]*480Thus, Gale's endorsement of a specific inclusion test is not so clear or unqualified as defendants perceive it to be. To the extent that Gale actually supports such mechanical analysis,
As Judge King observed in People of Saipan, in every reported case requiring judicial interpretation of the applicability of ambiguous federal legislation to the Trust Territory, the courts have consulted all available evidence to discover and to effectuate congressional intent. 356 F.Supp. at 650 n.11. Decisions subsequent to People of Saipan, including Gale itself, demonstrate the consistency of this sound judicial practice.
Although the United States Supreme Court has never directly addressed the question of the applicability of federal legislation to the Trust Territory, its precedents also require a purposive approach to statutory construction. The starting point of statutory construction undeniably is the language of the statute itself. Watt v. Alaska. 451 U.S. at 266, 101 S.Ct. at 1681. Yet, where, as here, neither the statutory language nor the legislative history provides an express answer, courts must embrace the construction which "more accurately reflects the intention of Congress, is more consistent with the structure of [481]*481the Act, and more fully serves the purposes of the statute.” F.B.I. v. Abramson, _ U.S. _, _ - _ and n.7, 102 S.Ct. 2054, 2060-2061 and n.7, 72 L.Ed.2d 376 (1982); accord Rose v. Lundy, _ U.S. at _, 102 S.Ct. at 1203; Vermilya-Brown Co. v. Connell, 335 U.S. 377, 385-390, 69 S.Ct. 140, 144-147, 93 L.Ed. 76 (1948), reh.denied, 336 U.S. 928, 69 S.Ct. 652, 93 L.Ed. 1089 (1949). If a statute's words and purposes plainly apply to a situation, the fact that the specific application of the statute never occurred to Congress does not bar courts from holding that the situation falls within the statute's coverage. United States v. Jones, 607 F.2d 269, 273 (9th Cir. 1979), cert.denied 444 U.S. 1085, 100 S.Ct. 1043, 62 L.Ed.2d 77 (1980).
it is also iniportant to construe federal legislation consistently with the Trusteeship Agreement to the extent that a harmonious construction is possible. The avoidance of conflict between statutes and treaties is a fundamental interpretive principle. E.g., Whitney v. Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 458, 31 L.Ed. 386 (1888); U.S. v. Vetco, 691 F.2d 1281, 1286 (9th Cir. 1981), cert.denied _ U.S. _, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981). The precedents reflect the judiciary's efforts to give legislation that meaning which accommodates and promotes the fulfillment of the United States' fiduciary obligations to Micronesians under the Trusteeship Agreement, See. e.g., Ralpho v. Bell, 569 F.2d 607, 626 and n.139, reh. denied 569 F.2d 636 (D.C.Cir. 1977)(construing the Micronesian Claims Act in harmony with the Trusteeship Agreement's human rights guarantees); [482]*482People of Enewetak, 353 F.Supp. at 818-819 (construing NEPA in light of the United States' express commitment to treat the Trust Territory "as if it were an integral part of the United States" and to govern the Trust Territory's inhabitants with "no less consideration" than it would govern people in sovereign United States territory
With reference to the Covenant in particular, the legislative history instructs that ambiguities in the document must be construed in favor of the NMI's people. Representative Phillip Burton, the chairman of the Subcommittee on Territorial and Insular Affairs of the House Committee on Interior and Insular Affairs was one of the Covenant's sponsors and floor managers. Six days before Congress enacted the Covenant?, Representative Burton stated;
[483]*483Our committee's and my own intent is that all possible ambiguities should be resolved in favor of and to the benefit of the people of the Government of the Northern Mariana Islands.
122 Cong.Rec. 7272 (1976).
b. Application of Statutory Construction Principles to Covenant § 502(a)(2)
In order to construe § 502(a)(2), we must examine its purposes, its legislative history and its relation to other Covenant provisions. The Senate Committee on Interior and Insular Affairs explained § 502 as follows:
The purpose of this section is to provide a workable body of law when the new government of the Northern Mariana Islands becomes operative pursuant to section 1003(b)... [1] The basic principle underlying section 502 is that the federal laws applicable to Guam and which are of general application to the several States shall also apply to the Northern Mariana Islands...
S.Rep.No. 433, supra, at 77; accord. Report of the Joint Drafting Committee on the Negotiating History C-3 (1975), reprinted in id. at 405; MPSC Analysis at 48-50, reprinted in Senate Interior and [484]*484Insular Affairs Committee Hearing on S.J.Res. 107, supra. at 406-408. The NMI's negotiators on the Marianas Political Status Commission (MPSC) believed that "[m]uch federal legislation... is highly desirable and should be made applicable to the Northern Marianas." MPSC Analysis at 15, reprinted in Senate Interior and Insular Affairs Committee Hearing on S.J.Res. 107, supra. at 373 (comment on Covenant § 105). The MPSC sought to prevent the application of laws which were either uniquely applicable to Guam or capable of affecting the NMI without similarly applying to the fifty states. Id. at 16, 53, reprinted in Senate Interior and Insular Affairs Committee Heaing on S.J.Res. 107 at 374, 411. In its analysis of Covenant § 105, the MPSC emphasized that:
The Trust Territory of the Pacific Islands..-, [is] now wholly run by the Executive branch of the federal, government and... can be affected not only by a wide variety of federal legislation, but also by executive orders over which they have no control. ¿Chis will not be true with respect to tfie Commonwealth of the Northern Marianas. It will not even be true prior to the establishment of the Commonwealth, for section l05 comes into effect before termination.
Id. at 16, reprinted in Senate Interior and Insular Affairs Committee Hearing on S.J.Res. 107 at 374 (emphasis added).
The MPSC further explained that "it was not pdssible for the MPSC and the United States delegation to review each federal law to determine whether and how it should apply." Id. at 48, reprinted in Senate Interior and Insular Affairs Committee Hearing on S.J.Res. 107 at 406 (emphasis added). As indicated above in [485]*485Part III, it is unclear to what extent the Covenant negotiators discussed the Trust Territory government's continuing presence on Saipan or the relocation of that government's headquarters. Covenant § 801 requires the Trust Territory government to transfer its real property holdings in the NMI to the NMI government "no later than upon the termination of the Trusteeship Agreement... (emphasis added)." This language suggests that the Covenant negotiators anticipated the possibility that the Trust Territory government might remain on Saipan for the duration of the Tru&t&ft- ¡ ship. During the Senate Foreign Relations Committee’s review of the Covenant, Speaker Henry of the Congress of Micronesia's House of Representatives urged the United States Congress to accompany the Covenant's approval with the enactment of legislation to fund the relocation of the Trust Territory government. Senate Foreign Relations Committee Hearing on H.J.Res. 549, supra, at 88-89. Speaker Henry expressed concern that the new NMI government would be able to exercise taxing and regulatory authority over- the Trust Territory government. Id. at 88. In a telegram sent to the chairman of the Senate Foreign Relations Committee, Speaker Henry and Congress of Micronesia Senate President Nakayama specifically identified "conflicting laws and'their application" as one of the difficulties which would result if the Trust Territory government's headquarters remained in the NMI. Id. at 169. In its joint report with the Senate Armed Services Committee,. the Foreign Relations Committee noted these concerns;' S.Rep.No. 596 at 9, reprinted in 1976 USCAN, supra. at 456. Neither the committee nor the .full [486]*486Congress endorsed or otherwise acted upon Speaker Henry's legislative proposal.
The Court must construe § 502(a)(2) in.a manner which most fully serves the statute's purposes and nurtures its basic policies. Abramson, _ U.S. at _, and n.7, 102 S.Ct. at 2061 and n.7; Rose, _ U.S. at _, 102 S.Ct. at 1203. Assuming arguendo that the Covenant negotiators and Congress did not foresee the Trust Territory government's continued presence in the NMI, the Court must construe § 502(a)(2) consistently with what the negotiators and Congress would have intended had they acted at the time of the legislation with the present situation in mind. Vermilya-Brown, 335 U.S. at 388, 69 S.Ct. at 146.
After carefully weighing the evidence above, the Court concludes that the Trust Territory government and the High Commissioner must comply with federal legislation which applies in the NMI through the operation of § 502(a)(2), unless the legislation's language or purposes instruct otherwise. Because there is no contrary indication in the language or policy of § 1981, Title VI or Title VII, the Trust Territory government and the High Commissioner must comply with those statutes. Statements at congressional hearings made by interested parties as to problems requiring legislative attention are useful aids in determining legislative intent. See 2A Sutherland Statutory Construction S 48.10 at 209 (4th Ed. 1973). This is especially true when the statements receive acknowledgement in a formal committee report. See note 40, supra. On the basis of the testimony presented by the Congress of ' [487]*487Micronesia leaders, one must presume that the United States Congress was aware that the Covenant would subject the Trust Territory government to an increased number of laws in the NMI upon the inception of Commonwealth government pursuant to Covenant § 1003(b). The language of the Covenant § 801 strongly indipates that the Covenant negotiators understood that the Trust Territory government might remain on the NMI until the end of the trusteeship. The negotiators clearly expressed their intent when they desired to create exceptions to the Covenant's applicability of laws provisions. See note 90, supra. Those exceptions do not arguably extend to the Trust Territory government or to the Higiji. ' Commissioner.
To the extent that the intended applicability of § 502(a)(2) to the Trust Territory government is unclear, the ambiguity must be resolved in favor of the people of the NMI. See notes 106-107 and accompanying text, supra. The NMI sought to ensure that its people would receive the protection of federal laws well before the termination of the trusteeship. The purpose of promptly implementing § 502(a)(2) and other Covenant provisions was to afford the NMI's people as many of the benefits of the NMI's new political status as early as possible and to protect them in the event that the trusteeship continued longer than expected for reasons beyond their control, as the trusteeship ultimately has. Sablan Construction. 526 F.Supp. at 139 and n.13; see MPSC Analysis at 133, reprinted in Senate Interior and Insular Affairs Committee Hearing on S.J.Res. 107, supra. at 491. While chairing his House [488]*488subcommittee's discussion of the Covenant plebiscite, Representative Burton articulated the policy which is organic to the Covenant's spirit:
[O]ur objective is to respect the free will of the people of the Northern Marianas. We do not want the Trust Territory High Commissioner's office to influence the outcome109/ . . We want the people of the Northern Marianas to have the freest and most open opportunity to speak for themselves, and to choose a future for themselves.
Marianas Political Status: Hearing Before the Subcommittee on Territorial and Insular Affairs, United States House of Representatives Committee on Interior and Insular Affairs, 94th Cong. 1st Sess. 122 (1975). The Covenant, and thus § 502(a)(2), represents the United States' fulfillment of its obligation under Trusteeship Agreement Article 6.1 to grant self-government in accordance with the wishes of the NMI's people. S.Rep.No. 433, supra, at 23. The rationale expressed by Representative Burton therefore also applies forcefully in determining whether the Trust Territory government and the High Commissioner are bound by § 502(a)(2). As demonstrated in the MPSC's Covenant analysis, one of the NMI people's core objectives was to eliminate governance through unilaterally imposed executive orders. Although the Trust Territory government has no governmental authority in the NMI, High Commissioner Executive Order 119 undeniably affects the livelihood and welfare of NMI residents who work for the Trust Territory government. It is a classic example of the type of. "executive orders over which they have no control." Analysis at 16, reprinted in Senate Interior [489]*489and Insular Affairs Committee Hearing, supra, at 374. By concluding that the High Commissioner may affect the lives of the NMI's people through executive order notwithstanding § 502(a)(2), the Court would frustrate rather than nurture one of the Covenant's most basic policies. The Court is sensitive to the fact that the Trust Territory government occupies a difficult position during the twilight of the trusteeship. The Trust Territory government’s continued presence in the NMI is the unfortunate result of the United States' failure to fulfill its self-admitted and "long recognized" responsibility to fund the relocation of the Trust Territory government. Senate Foreign Relations Committee Hearing on H.J.Res. 5.49, supra, at 41, 44 (statement of the President's Personal Representative to the Covenant negotiations). Nevertheless, it does not follow that federal laws applied by § 502(a)(2) are inoperative as to the Trust Territory government because the United States may have defaulted on that responsibility.’ Situations not expressly covered by the Covenant are subsumed by its underlying policies. Rose v. Lundy, _ U.S. at _, 102 S.Ct. at 1203. Assuming arguendo that neither the Covenant negotiators nor Congress anticipated the Trust Territory government's ongoing presence in the NMI, the fact that the specific application of § 502(a)(2) to the Trust Territory government never occurred to the Covenant's framers is unimportant so long as the application is consistent with the framer's fundamental objectives. See United States v. Jones, 607 F.2d at 273. The framers' intent is the ultimate issue in expounding the Covenant's meaning. See [490]*490Hopson v. Kreps, 622 F.2d at 1380. Where, as here, the Trust Territory govenment's interests collide with the Covenant's policies, the Court accordingly must deny‘defendants' motion to dismiss the § 1981 claims.
2. Issues Relevant to Defendants' Summary Judgment Motion
Defendants present two arguments for summary judgment on the § 1981 claims. Neither contention is meritorious.
First, defendants assert that the applicable statute of limitations ma,y bar plaintiffs' c1aims.
Second, defendants argue that only racial discrimination is actionable under § 1981. Noting that the Trust Territory's pay scales facially discriminate on the basis of alienage, defendants maintain that § 1981 does not prohibit national origin or alienage discrimination, and that therefore no § 1981 cause of action lies. After carefully considering this argument, the Court must deny summary judgment.
[491]*491Although the Trust Territory's pay scales ostensibly discriminate solely on grounds of alienage, plaintiffs have alleged that the pay scales also discriminate on á racial basis. See note 8 supra. In General Building Contractors Assoc. v. Pennsylvania, _ U.S. _, _, 102 S.Ct. 3141, 3149-3150, 73 L.Ed.2d 885 (1982), the Supreme Court held that § 1981 requires proof of intentional discrimination. The Court questions whether plaintiffs will be able to prove the existence of purely racially discriminatory intent. Nevertheless, even when the evidentiary facts are undisputed, summary judgment is inappropriate when contradictory inferences may be drawn from those facts or where motive and intent play á leading role in determining liability and the proof is largely in defendants' hands. Sherman Oaks Medical Center v. Carpenters Local Union, 680 F.2d 594, 598 (9th Cir. 1982). As recently .explained by the Supreme Court in a civil rights class action:
[Discriminatory intent need not be proven by direct evidence. 'Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.' (citation omitted). Thus determining the existence of a discriminatory purpose demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available (citation omitted).
Rogers v. Lodge. _ U.S. _, _, 103 S.Ct. _, _, 73 L.Ed.2d 1012, 1018 (1982). Given the inadequate factual record here, the [492]*492Court cannot engage in this sensitive inquiry on a motion for summary judgment. Williams v. DeKalb County, 82 F.R.D. 10, 13 (N.D.Ga. 1979).
Recent precedent within the Ninth Circuit disposes of defendants' argument that national origin discrimination is not actionable under § 1981. In Ortiz v. Bank of America, 547 F.Supp. 550 (E.D.Cal. 1982), the court's thorough and scholarly opinion reviewed the legislative history and judicial construction of § 1981. The court correctly observed that neither the Supreme Court nor the Ninth Circuit has decided whether there is tenable distinction between racial discrimination claims and national origin discrimination claims for purposes of § 1981. Id. at 556-559. Hie court then analyzed three lines of § 1981 cases from other circuits.
Finally, the Court rejects defendants' contention that § 1981 is inapplicable to alienage-based discrimination. The Supreme Court has declared that § 1981 protects all persons against governmental discrimination based on alienage. Takahashi v. Fish & Game Commission, 334 U.S. 410, 419, 68 S.Ct. 1138, 1142, 92 L.Ed. 1478 (1948) (construing 8 U.S. § 41, which was subsequently recodified as § 1981). Under a contrary view taken by some courts, Takahashi establishes only that aliens are protected against discrimination which violates § 1981, and does not establish that § 1?81 creates a cause of action for alienage-based discrimination see, e.g.. Rios v. Marshall. 530 F.Supp. 351, 361 and n.9 (S.D.N.Y. 1981). This Court cannot concur in that view. The California ■statute phich was challenged in Takahashi explicitly discriminated on the basis of eligibility of citizenship. See 334 U.S. at 413 [494]*494n.3. 68 S.Ct. at 1139 n. 3. The Los Angeles County Superior Court invalidated the statute on Fourteenth Amendment equal protection grounds. Id. at 414, 68 S.Ct. at 1140. Upholding this ruling, the Supreme Court relied upon the equal protection doctrine developed in alienage discrimination decisions such as Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915). See id. at 415-420 and nn.6-7, 68 S.Ct. at 1140-1143 and nn.6-7. The weight of authority holds that § 1981 prohibits alienage-based governmental discrimination. See, e.g., Espinoza v. Hillwood Square Mutual Assoc., 522 F.Supp. 1121, 1137 n.1A (N.D.Cal. 1977); Comment, Developments in the Law-Section 1981. 15 Harv.C.R.-C.L. L.Rev. 29, 90-92 (1980)(Comment on § 1981). Defendants’ motions for summary judgment on plaintiffs' § 1981 claims are denied.
C. § 1983 Claims
We now address plaintiffs' § 1983 claims. Section 1983 states in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, or any State or .Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an hction at law, suit in equity, or other proper proceeding for redress.
Section 1983 is not a source of substantive rights. Chapman v. Houston Welfare Rights Organization. 441 U.S. at 618, 99 S.Ct. at [495]*4951916. For this reason, we cannot determine the viability of plaintiffs' § 1983 claims solely on the basis of Covenant § 502(a)(2). The resolution of that question involves three analytical steps.
1. Applicability of the Equal Protection and Due Process Guarantees of the Fifth and Fourteenth Amendments to the United States Constitution to the Trust Territory Government and the High Commissioner
The first inquiry in any § 1983 suit is whether plaintiff has been deprived of a right secured by the Constitution or laws of the United States. Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). Plaintiffs allege the violation of the due process and equal protection guarantees of the Fifth and Fourteenth Amendments to the United States Constitution. Covenant § 501(a) recognizes the applicability of those guarantees in the NMI.
In a series of decisions known as the Insular Cases,
Although the areas involved in the Insular Cases were territories in which the United States claimed sovereignty, courts have implicitly recognized that the term "unincorporated territory is sufficiently elastic to include the geographic area of the Trust Territory. See Ralpho v. Bell, 569 F.2d at 618-619 and nn.69-70; Thompson v. Kleppe, 424 F.Supp. 1263, 1268-1269 (D. Haw. 1976).
In Porter, the court indicated that the United States could not be held vicariously liable under the Fifth Amendment's Just Compensation Clause for actions by the Trust Territory Attorney General and another lower level Trust Territory official. See 496 F.2d at 591-592. Porter did not involve a challenge to High Commissioner action, as this case does. To the extent that Porter suggests that the Constitution does not operate against the High Commissioner or the Trust Territory government, the Court must respectfully disagree.
As reaffirmed by the Supreme Court and in Ralpho v. Bell. "there cannot exist under the American flag-
For these reasons, the Court concludes that federal constitutional guarantees of equal protection and due process operate against the Trust Territory government and the High Commissioner. Analysis is the same under the Fourteenth Amend-[499]*499merit's Equal Protection Clause and under the equal protection component of the Fifth Amendment's Due Process Clause. Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 (1976). The Fifth and Fourteenth Amendment Due Process Clauses are also analytically coextensive. Therefore, it is unnecessary to decide whether it is the Fifth Amendment or the Fourteenth Amendment which acts as the specific limitation. Cf. Flores de Otero, 426 U.S. at 601, 96 S.Ct. at 2280-2281 (Puerto Rico); Alaska Steamship Co. v. Mullaney. 180 F.2d 805, 817 (9th Cir. 1950)(Alaska).
2. The High Commissioner's Promulgation of the Trust Territory Headquarters Salary Plan as Action Under Color of Territorial Law for Purposes of § 1983
a. Action Under Color of Territorial Law
The second analytical step is to determine whether the High Commissioner acted under color of law of a "Territory". We first turn to the "color of law" inquiry. Action under color of law is a jurisdictional prerequisite to a § 1983. Cox v. Hellerstein, 685 F.2d 1098, 1099 (9th Cir. 1982). As this Court observed in Bauer v. McCoy, supra, because the High Commissioner functions as both an Interior Department official and as a territorial chief executive, it is important to determine whether the challenged action was taken under color of federal law or territorial law. See Bauer, Decision at 20-21 characterizing the High Commissioner's determination of an Interior Department employee's [500]*500educational allowance reimbursement under 5 U.S.C. § 5924(4)(A) as action under color of federal law).
The Court concludes that the High Commissioner's pronul-gation of the disputed pay scales through Executive Order No. 119 was action under color of territorial law. The High Commissioner issued Order 119 pursuant to authority claimed under Secretarial Order 3039. See note 3, supra. Local laws enacted under legislative power granted by Congress are territorial laws rather than laws of the United States. E.g., Harris v. Boreham, 233 F.2d at 113 (collecting cases). Because Order 3039 is a "law" promulgated . as local "legislation" pursuant to congressionally derived authority, the High Commissioner's action in reliance upon the order constituted action under color of territorial law.
h. The Trust Territory of the Pacific Islands as a "Territory" For Purposes of § 1983
Defendants also 'contend that the Trust Territory of the Pacific Islands is not a "Territory" for purposes of § 1983. In support of this proposition defendants cite the ruling in Thompson v. Kleppe that "the Trust Territory is not a State within § 1983..." 424 F.Supp. at 1265.
Stare decisis does not require one district judge to follow the decision of another. Starbuck v. City and County of San Francisco, 556 F.2d 450, 457 n.13 (9th Cir. 1977). A court should give less deference to a decision which was "rendered without benefit of a full airing of all the relevant considerations [501]*501Monell v. Department of Social Services of the City of New York. 436 U.S. 658, 709 n.6 98 S.Ct. 2018, 2045 n.6 56 L.Ed.2d 611 (1978) (Powell, J., concurring). Kleppe's § 1983 ruling was a summary pronouncement which did not weigh the relevant statutory construction policies or analyze § 1983's legislative history'and judicial interpretation. For the reasons which follow, the Court respectfully departs from Kleppe and holds that the Trust Territory of the Pacific Islands' is a "Territory" for purposes of § 1983.
Section 1983 is remedial legislation designed to preserve human rights-. Therefore, it .must be liberally and beneficially construed. Owen v. City of Independence, Missouri, 445 U.S. 622, 636, 100 S.Ct. 1398, 1408, 63 L.Ed.2d 673 (1980. Its language nust be given "'the. largest latitude consistent with the words employed'...". Id.
The contours' of §■ 1983 must necessarily remain flexible to accommodate 'changing circumstances and the exigencies of- a given era. Because it is remedial in nature-, § 1983 is appropriately suited to redress any new method of interference with the' rights which its words protect. 'For • it is the constitutional right, regardless of the method of interference, which is the subject of the statute and which in precise terms it protects from injury or oppression.' (citation omitted). -'
Green v. Dumke. 480 F.2d 624, 268 n.7 (9th Cir. 1973).
Under settled Supreme Court principles of statutory construction, the word "territory" is an inherently ambiguous end elastic term. Its meaning depends upon the character and aim of [502]*502the legislation presented. People of Puerto Rico v. Shell Co., 302 U.S. 253, 258, 58 S.Ct. 167, 169, 82 L.Ed. 235 (1937). When expounding the meaning of the term "territory”, courts consider the statutory language, the law's purposes and the context and circumstances in which the words were employed. District of Columbia v. Carter, 409 U.S. 418, 420, 93 S.Ct. 602, 604, 34 L.Ed.2d 613, reh.denied 410 U.S. 959, 93 S.Ct. 1411, 35 L.Ed.2d at 694 (1973); People of Puerto Rico, 302 U.S. at 258, 58 S.Ct. at 169. "'When Congress uses the term 'territory', this may be meant to be synonymous only with 'place' or 'area', and not necessarily to indicate that Congress has in mind the niceties of language of a political scientist...'". United States v. Villarin Gerena, 553 F.2d 723, 726 (1st Cir. 1977).
Section 1983 is part of the Civil Rights Act of 1871. Congress passed the 1871 Act for the express purpose of enforcing the Fourteenth Amendment. Congress intended to create a remedy as broad as the Fourteenth Amendment affords the individual. Lugar v. Edmunson Oil Co., - U.S. _, _, 102 S.Ct. 2744, 2752-2753, 73 L.Ed.2d 482 (1982). Section 1983 originally applied only to action under color of state law. In 1874, Congress added the words "or Territory" without explanation. Flores de Otero, 426 U.S. at 582, 96 S.Ct. at 2272.
In District of Columbia v. Carter, the Supreme Court held that the District of Columbia is not a "State or Territory” for purposes of § 1983. 409 U.S. at 424, 93 S.Ct. at 606. The court explained the practical needs which led to the inclusion of [503]*503territories within § 1983:
[Effective federal control over the activities of territorial officials was virtually impossible. Indeed, "the territories were not ruled immediately from Washington Rather Congress left municipal la» to be developed largely by the territorial legislatures within the framework of organic acts and subject to a retained power of veto. The scope of self-government exercised under delegations was nearly as broad as that enjoyed by the States... (citations omitted) [A]lthough the Constitution vested control over the Territories in the Congress, its practical control was both confused and ineffective, making, the problem of enforcement of civil rights in the Territories more similar to the problem as it existed in the States than in the District of Columbia.
Id. at 430, 93 S.Ct. at 609. The court's ruling that the Distric of Columbia was not within § 1983 rested upon the unique ability of Congress to monitor the activities of local officials at the national seat of government. Id. at 429-430, 93 S.Ct. at 608-609 Six years later, Congress overruled Carter by amending § 1983 to include the District of Columbia. See generally H.R.Rep. No. 96-548, 96th Cong. 1st Sess., reprinted in 1979 U.S.Code Cong. & Ad. News 2609. —
When Congress initially passed § 1983 the United States had no insular dependencies. The territories under United States jurisdiction at that time were all "incorporated territories" destined for statehood. See District of Columbia v. Carter, 409 U.S. at 431-432, 93 S.Ct. at 610. The only application of § 1983 [504]*504which the enacting Congress logically could have contemplated was the statute's application within the continental United States. Nevertheless, as reaffirmed by the Ninth Circuit, section 1983-is a dynamic and flexible statute which was designed to "accommodate changing circumstances and the exigencies of a given era." Green v. Dumke, 480 F.2d at 628 n.7. Its language must be given generous latitude in order to achieve the statute's remedial purposes. Owen v. City of Independence, 445 U.S. at 636, 100 S.Ct. at 1408. The Court accordingly must construe the word "Territory" in § 1983 as the lawmakers would have done at the time of the legislation if they had acted with the present situation in mind. See People of Puerto Rico v. Shell Co., 302 U.S. at 257, 58 S.Ct. at 169, cf. Vermilya-Brown Co. v. Connell, 335 U.S. at 388, 69 S.Ct. at 146 (same principle stated with respect to construction of the word "possession").
Congress intended to prevent the violation of constitutional rights by federally appointed territorial officials located beyond effective control or supervision by the national government. Congress viewed this need as particularly pressing in light of the territory's dependent state of "pupilage" and the "transitory nature of the territorial condition." District of Columbia v. Carter, 409 U.S. at 431-432, 93 S.Ct. at 610. These same considerations forcefully apply with respect to the Trust Territory. The Interior Department's stated policy has been to encourage autonomy in territorial governments including the Trust Territory government. See Van Cleve, supra, at 144-149. As a consequence of this [505]*505policy of restraint, direct and immediate supervision of the Trust Territory government by the federal government apparently has not occurred. Moreover, the concept of trusteeship implies a regime of territorial administration which is inherently transitory in nature. The Court therefore believes that if the framers of § 1982 had foreseen the advent of the Trust Territory, they would have regarded it as a "Territory" to which § 1983 applies. This conclusion is reinforced by the fact that the governmental action challenged here is action by the High Commissioner, who is a federally-appointed territorial chief executive. The fact that the United States is not sovereign in the Trust Territory is a distinction without material significance
For the reasons above, the Court holds that the Trust Territory of the Pacific Islands is a "Territory" for purposes of § 1983.
3. The Trust Territory Government and the High Commissioner as Suable "Persons" Under § 1983
The final inquiry is whether the Trust Territory government and the High Commissioner are suable "persons" under § 1983. The Court concludes that they are. As indicated above, the Trust Territory government's common law immunity neither extends into federal court nor insulates it against actions alleging violations of federal law. See notes 66-67 and accompanying text. Moreover, in Monell v. Department of Social Services the Supreme Court held that local government bodies and local government officials may be sued in their official capacities under § 1983. 436 U.S. at 688-690 and n.55, 98 S.Ct. at 2034-2036 and n.55. The Trust Territory government is not a municipal corporation as was the defendant in Monell. Nevertheless, its relationship to the United States government, like that of other territorial governments created pursuant to congressional authority [507]*507is a relationship which may be accurately compared to the relationship between a municipality and a State. See United States v. Wheeler, 435 U.S. at 321 n.16, 98 S.Ct. at 1085 n.16 (collecting authorities). Monell indicated that the Congress which enacted § 1983 intended that ali "bodies politic and corporate" would be suable § 1983 "persons." See 436 U.S. at 688-9 and n.53, 98 S.Ct. at 2034-5 and n.53. The Trust Territory government clearly is a "body politic" and it does not possess any federal constitutional or statutory immunity from § 1983 claims. Therefore, under Monell's rationale both the Trust Territory government and the High Commissioner must be considered to be "persons" against whom § 1983 actions may lie. Defendants’ dismissal motions are denied. Because material factual issues remain concerning plaintiffs' § 1983 claims, the Court also denies summary judgment.
D. Title VI Claims
Title VI applies within the NMI to the Trust Territory government and the High Commissioner for the reasons stated in Part V-B-l-a & b, supra. Defendants urge dismissal upon the additional ground that Title VI does not create private causes of action. Neither the Supreme Court nor the Ninth Circuit has squarely decided this issue, and the holdings from other lower courts are inconclusive
This case does not require the Court to reach the question of whether Title VI generally affords a private right of action. On the basis of 42 U.S.C. § 2000d-3, the Court holds that [508]*508a private suit challenging employment practices is unavailable under Title VI where, as here, the primary purpose of federal financial assistance to defendant is not the provision of employment.
E. Title VII Claims
Title VII applies within the NMI to the Trust Territory government and the High Commissioner under the rationale expressed in Part V-B-l-a & b, supra. Title 42 U.S.C. § 2000e(i) includes the fifty states and Guam within the definition of the "States" to which Title VII applies. Under Covenant § 502(a)(2), the NMI also is a "State" for purposes of Title VII.
Although defendants' other arguments lack me'rit'.
[511]*511VI. CIVIL RIGHTS ACTS CLAIMS AGAINST THE UNITED STATES, THE INTERIOR DEPARTMENT, AND THE INTERIOR SECRETARY
Plaintiffs cannot maintain any of their civil rights acts claims against the United States or the Interior defendants. The Court dismisses the § 1981, § 1983 and Title VI for lack of subject matter jurisdiction. It grants defendants summary judgment on the Title VII claim.
A. § 1981 Claims
The Court's conclusion that it lacks jurisdiction over' plaintiffs' § 1981 claim rests upon its analysis of Bowers v. Campbell, 505 F.2d 1155 (9th Cir. 1974) and Brown v. General Services Administration. 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). In Bowers, the Ninth Circuit held that § 1981 waives the United States' governmental immunity where plaintiff avers ultra vires conduct by a federal official. 505 F.2d at 1158. Although plaintiffs allege omissions and negligent supervision '~y the Interior defendants, they do not allege any direct ultra vires action by the United States or the Interior defendants which brings this case within Bowers. Moreover, Bowers is unhelpful to plaintiffs in light of Brown. In Brown, the Supreme Court ruled that Title VII is the exclusive remedy for federal employment discrimination. 425 U.S. at 828-829; 96 S.Ct. at 1966. The court clearly predicated this holding upon the rationale that the United States is not subject to suit under § 1981. See id. at 823-824, [512]*512827-829 and n.8, 833-834, 96 S.Ct. at 1963, 1965-1966 and n.8, 1968. In the Court's view, Brown implicitly repudiates Bowers' conclusion that § 1981 waives the United States' immunity. See Taylor v. Jones, 495 F.Supp. 1285, 1290 (E.D.Ark. 1980); Reiss, Requiem For An Independent Remedy. 50 S.Cal.L.Rev. 961, 976-982 (1977); Comment on § 1981, supra. 15 Harv.C.R.-C.L.L.Rev. at 106, 201 n.1.
B. § 1983 Claims
The § 1983 claims must be dismissed because they operate only against the United States. 373 U.S. at 621 83 S.Ct. at 1007. As plaintiffs concede,
C. Title VI Claims
Plaintiffs' Title VI claims must be dismissed. Title VI does not authorize private suits against the United States, Cabinet departments, or federal agency officials. Drayden v. Needville Independent School Dist., 642 F.2d 129, 133 n.6 (5th Cir. 1981); Craft v. Board of Trustees. 516 F.Supp. 1317, 1327 (N.D.Ill. 1981).
[513]*513D. Title VII Claims
The United States, the Interior Department and the Interior Secretary are entitled to summary judgment on the Title VII claims. When properly filed against the head of the employing federal agency
[514]*514VII. TRUST TERRITORY CODE BILL OF RIGHTS EQUAL PROTECTION CLAIMS
A. Claims Against the Trust Territory Government and the High Commissioner
The Court determines that it has subject matter jurisdiction over plaintiffs' claims against the Trust Territory government and the High Commissioner under the equal protection clause of the Trust Territory Bill of Rights (1 T.T.C. § 7).
[515]*515B. Claims Against the United States, the Interior Department and the Interior Secretary
Section 7 does not afford protection against the United States government. A contrary argument might have been plausible during the era in which there was no territorial legislature. This argument would have had to overcome authority indicating that territorial laws enacted by Congress itself or under congtes.-sional delegation are laws of the territory rather than laws of the United States. See Part V-C , supra. The reenactment of § 7 by the Congress of Micronesia reinforces the Court's'conclusion that § 7 is not a restraint upon the United■States government. The § 7 claims against the United States and the Interior defen- ' dants therefore are dismissed for lack of subject matter jurisdiction.
[516]*516VIII. CONCLUSION
For the reasons stated above, the Court rules as follows on defendants' motions:
1. Motions by the Trust Territory government and the High Commissioner:
The Court denies defendants' dismissal and summary judgment motions with respect to plaintiffs' Trusteeship Agreement, § 1981, and § 1983 claims. The Court grants defendants' motion to dismiss plaintiffs' Title VI and Title VII claims for lack of subject matter jurisdiction.
2. Motions by the United States, the Interior Department and the Interior Secretary:
The Court grants defendants' motions to dismiss the monetary Trusteeship Agreement claims, § 1981 claims, § 1983 claims, Title VI claims, and Trust Territory Code Bill of Rights equal protection claims. The Court denies dismissal and grants summary judgment to defendants on plaintiffs' Title VII claims. The Court denies defendants' dismissal and summary judgment motions as to plaintiffs' non-monetary Trusteeship Agreement claims.
No later than 4:30 p.m. on April 29, 1983, the parties shall individually file written statements with the Court proposing a date for the commencement of evidentiary hearings on class certification.
~l Date
Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, 61 Stat. 3301, T.I.A.S. No. 1665.
1 N. Mar. I. Commw. 426 (Temengil v. Trust Territory of the Pacific Islands) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.