William H. Rehnquist: We'll hear argument next in Number 88-1281, Alex Ngiraingas v. Francisco Sanchez. Mr. Siegel.
Jeffrey R. Siegel: Mr. Chief Justice, and may it please the Court: The issue before the Court today is whether the territory of Guam is liable for deprivations of civil rights. To answer that question the Court must address one, possibly two other questions. The first of these is whether the territory is a person for the purpose of the Civil Rights Act, and if it is, whether there is some other form of sovereign immunity which may protect the territory from liability. Any analysis of the word person in the Dictionary Act must begin with the Dictionary Act. The Dictionary Act, passed only months before the Civil Rights Act in 1871, defined persons to include bodies politic and corporate. This Court has ruled in Puerto Rico v. Shell that the territory of Puerto Rico was indeed a body politic, and the Third Circuit has held that the territory of the Virgin Islands was a body politic as well. Indeed, if we examine the nature of the territory and the self-government invested in the territory by the Organic Act we will find, I think, that... that it makes sense to conclude that territory is indeed a body politic. There are free elections in the territory. The citizens of the territory elect their local representatives and congressmen and a non-voting delegate to Congress. Indeed, there are also local courts, and a quite vibrant and active democracy exists in Guam. There has been some suggestion, however, that the Dictionary Act is not applicable in defining, or at least has been somewhat diminished in defining the word person. The first basis on which this has been suggested is the fact that the 1871 act was taken from the 1866 Civil Rights Act, specifically Section 2. However, Congress, in the intervening period, did pass the Civil Rights Act, and that is persuasive evidence that Congress intended to apply that definition to the word person in Section 1983. Respondents have argued that the 1874 revision and recodification of laws, and the repeal and reenactment of the Dictionary Act, somehow overrides this Court's finding in Monell that indeed the Dictionary Act is applicable to this term. I would also suggest that the 1874 Congress could not have effected the intentions of the 1871 Congress when it passed Section 1983. The second factor this Court relied upon in Monell and finding municipalities to be persons were the broad construction and remedial nature of Section 1983. I would suggest that these same principles apply to include the territory within the meaning of the word person. Section 1983 is to be given as broad a construction as possible, and technical definitions should not be used to exclude any body politic from the term person in Section 1983.
William H. Rehnquist: Did the Court literally say in Monell that Section 1983 was to give... to be given the broadest possible construction?
Jeffrey R. Siegel: Well, maybe that is overstating it just a bit.
William H. Rehnquist: It's a strange view, certainly. Why on earth would you give anything the broadest possible construction?
Jeffrey R. Siegel: Well, the broadest construction consistent with the terms used. I think the Court's intention was to not hang the liability or applicability of Section 1983 upon some technical reading of the statute.
William H. Rehnquist: Well, the broadest possible construction, I suppose, would include states.
Jeffrey R. Siegel: I think there is an argument to be made for that. However, in Will, and I think the substance of Will is that the interest of federalism in the Eleventh Amendment override that broad construction. Indeed, it makes sense that Congress would not intend, given the context of the act, that states would be liable under... states would be persons for the purpose of Section 1983 given their Eleventh Amendment immunity. And the petitioners would submit that that is indeed the overriding considerations this Court employed in Will, in holding that states were not persons, that they are given a special respect and special sovereignty by the Constitution and the federalist system.
Byron R. White: Well,... sort of a standard rule of construction that if you, if you intend to include a sovereign or a state you ought to say so.
Jeffrey R. Siegel: The rule of construction I think Justice White is referring to is that person does not ordinarily include the sovereign. However, that is not a hard-and-fast rule, as this Court ruled in Omaha, in Wilson v. The Omaha Tribes. The Court must examine the purpose and context, as well as the legislative history of the act. Congress would never, and has never indeed, considered any territory to be a sovereign. Congress is the plenary sovereign over any territory, and certainly over Guam. I suggest then, that given that context and given that understanding of Congress,--
Byron R. White: You mean territories are just subject to tort suits despite the territorial legislature saying they are immune? They have sovereign immunity, or what?
Jeffrey R. Siegel: --They have sovereign immunity from territorial... from acts arising on the territorial law in territorial courts.
Byron R. White: Why do they have that?
Jeffrey R. Siegel: Based on this Court's decision in Polyblank that the logical and practical--
Byron R. White: Well, that's a long-standing tradition, isn't it?
Jeffrey R. Siegel: --Yes, it is, Your Honor.
Byron R. White: But you say 1983 wasn't... didn't have to respect that kind of immunity.
Jeffrey R. Siegel: I'm saying that it is illogical to consider that Congress would have intended to immunize a territory, which is a creature of Federal law, from an act of Federal law. The logic of Polyblank is that the territory itself creates the rights which flow to the citizens of the territory. Therefore, it is immune. That's the explicit language. I would suggest that there, that any immunity from the Federal law must be a matter of congressional intent. And there is no tradition of immunity from Federal law in territories, because they are indeed creations of Federal law. It's internally inconsistent.
William H. Rehnquist: What about our decision in District of Columbia v. Carter? You know, certainly the District of Columbia was a creature of Federal law, too, but we said that 1983 as enacted didn't cover it, didn't we?
Jeffrey R. Siegel: Because this acts on the color of... District of Columbia law were not included in... in the... in 1983 at that time, and this Court held that District... properly so, that the District of Columbia is neither a state or a territory.
William H. Rehnquist: Whereas you say that Guam would be a territory.
Jeffrey R. Siegel: Yes.
Anthony M. Kennedy: And you think Carter would come out differently now?
Jeffrey R. Siegel: Yes.
Anthony M. Kennedy: Because 1983 now says territory?
Jeffrey R. Siegel: I think that's some evidence, although the cases obviously are not consistent in that regard. States are included in Section 1983, yet they are not persons. The District of Columbia circuit has held the District of Columbia liable under the Civil Rights Act, and I think that is appropriate. I think the distinguishing factor is the Eleventh Amendment and Federalism. I think it is the sovereignty of the states which set states apart from territories or municipalities. And I think that can be drawn also from the conclusion in Monell that Section 1983 applies to all entities which are not parts of the state for Eleventh Amendment purposes. And the history of this Court's decisions imply that distinction, imply the Eleventh Amendment as being an important factor in the interpretation of Section 1983 and governmental liability.
Sandra Day O'Connor: And why aren't we bound by the Dictionary Act definition of persons?
Jeffrey R. Siegel: No, I believe this Court should be bound by that act.
Sandra Day O'Connor: Doesn't that suggest to us that territories are not persons?
Jeffrey R. Siegel: No, territories are bodies politic, as this Court has held in Puerto Rico v. Shell.
Byron R. White: That's the original form of the Dictionary Act.
Jeffrey R. Siegel: The 1871 version, yes.
Byron R. White: And, as amended, what did it say?
Jeffrey R. Siegel: It said corporations and partnerships were substituted for--
Byron R. White: And you say that we shouldn't even look at that?
Jeffrey R. Siegel: --No, that was passed later. The Court also has relied in making determinations of governmental liability under Section 1983 on the legislative history of the act. But I would suggest that this Court did not base any of its decisions on the specific legislative history of Section 1983. Indeed, there was only one, one mention of specific instance of the understanding that a city would be liable under Section 1983 in the specific legislative history of that act. I think that the Court has taken the term person and found the legislative intent within the definition of that term. It would seem to me that, given the historical context of the Civil Rights Act, that Congress would have intended it to ply... apply in territories as well, and to territories. This is a reconstructionary act. Indeed slavery in the territories had been something that was heatedly debated both prior to the Civil War and after it. Witness the Missouri Compromise.
Antonin Scalia: On that line of reasoning they probably would have wanted it to apply to the states as well, in fact especially.
Jeffrey R. Siegel: Well, given the... given the constitutional immunity which this Court relied on... on... in Will, I think there is ample basis for the Court's decision in Will.
Antonin Scalia: That was a decision not based on immunity, but based on the... the perceived intent of the Congress at the time.
Jeffrey R. Siegel: Right. And I think in perceiving that intent this Court applied two standards that apply only to Eleventh Amendment suits, specifically that indeed the Eleventh Amendment applies only to states, and that Congress would have made... would have clearly expressed its intention to alter the constitutional balance. Now, that balance is not at issue here.
Antonin Scalia: Don't you think it is much more likely that the Reconstruction Congress would have been, would have been more concerned about states than it would have been... about constitutional violations by states than it would have been about constitutional violations by territories that are subject to the complete control of the Federal Government?
Jeffrey R. Siegel: There is no question that states were the main focus of the debates on Reconstruction. But I would also note that Congress would not intend to apply a remedy such as the Civil Rights Act in states, and provide a haven for bigots and Ku Klux Klan and what have you in territories by failing to apply the act there.
Byron R. White: The people who were doing the violating wouldn't be immune in their individual capacity.
Jeffrey R. Siegel: No.
Byron R. White: So it's not really a haven, is it?
Jeffrey R. Siegel: Well, if... if Section 1983 were not construed to apply in territories, and I suggest--
William H. Rehnquist: Well, they would have to flee to the territory and then be elected to some office, wouldn't they? [Laughter]
Jeffrey R. Siegel: --Which might not be too hard. [Laughter] The second issue that this Court must face if it determines that territories are persons is the issue of sovereign immunity, and I think we have touched on that already. This Court has never held any governmental entity to be immune from the Federal Civil Rights Act, other than states under the Eleventh Amendment. And indeed, when it has held such an immunity existed with respect to individuals, it has found only immunities which were well grounded in reason and history. There is no immunity for Federal action in a territory... against a territory. The territories, as I stated before, are acts of Congress, given the powers... given their powers by Congress, and there has not been one case cited to this Court or in any brief which would demonstrate an immunity to a claim brought under Federal law with respect to a territory. I think the Third Circuit's reasoning in Frett, in Ocasio is also appropriate for consideration. Congress would not have applied a bill of rights, and specifically extended the Fourteenth and Fifth Amendments to the territory, and at the same time intended to keep the territories immune from actions brought pursuant to Section 1983, if indeed the territories are persons. By way of conclusion I would just like to add perhaps a practical point, that the territory needs this remedy. The people of the territory need to have a sense that their civil rights are secure. There is no effective remedy under Section 1983 when the only person you can sue is an $8.00 an hour police officer.
William H. Rehnquist: But the territorial legislature could give the people everything that Section 1983 can give them, can't it?
Jeffrey R. Siegel: Yes.
William H. Rehnquist: And yet the... the legislature doesn't realize that the people need this remedy?
Jeffrey R. Siegel: No.
Byron R. White: What about... what about the people of the states?
Jeffrey R. Siegel: I think they are in the same position, frankly.
Byron R. White: So we should give the people in the territory favored position as compared to the people of the states?
Jeffrey R. Siegel: The states are the entities that have the favored position.
John Paul Stevens: May I ask this question just to get it straightened out in my... in states of course you have a lot of cities you can sue, municipal corporations. Do we have separate municipal corporations in the territory of Guam that are subject--
Jeffrey R. Siegel: There are local villages, but the only village officer is what... is a mayor, and he essentially has no power. They don't run any of the police force [inaudible].
John Paul Stevens: --The local villages or towns have police forces, you say?
Jeffrey R. Siegel: No, they don't.
John Paul Stevens: So the only governmental entity that has a police force that can engage in the kind of conduct we are talking about is the territory itself?
Jeffrey R. Siegel: That's correct.
John Paul Stevens: Which is somewhat different from the situation in most states.
Jeffrey R. Siegel: That is correct. And that is another important point. The government of Guam is almost an overwhelming power. They license cars, license businesses, run the only police force, run the only hospital, provide telephone service, provide electrical service, provide water. And without an effective remedy against an entity of such great magnitude, I suggest that it is going to be a difficult task to instill American traditions of democracy and liberty in the territories. I'd like to reserve the remaining time, please.
William H. Rehnquist: Very well, Mr. Siegel. Mr. Mason.
John Patrick Mason: Mr. Chief Justice, and may it please the Court: Whether the government of Guam is liable under Section 1983 is a question of congressional intent. What did Congress intend concerning the territories in 1874, not 1871, but 1874, when territories were added to the 1871 Civil Rights Act, and what did Congress intend in Guam's Organic Act? Now, Petitioners would disregard Guam's mandate for self-government in its Organic Act, and Petitioners would avoid the intent of Congress to allow the people of Guam, through their duly elected legislators, to balance the interests of private litigants and the goals of public government. One of the first things you can look at is the purpose of the Civil Rights Act of 1874. A major purpose was to provide a Federal forum to enforce Fourteenth Amendment rights. Local officials in the states either would not or could not grant the citizens the equal protection, due processes and privileges and immunities guaranteed by the Fourteenth Amendment. However, in territories the situation is different. And I think there is some confusion here about the courts of the territories, because the territories had Congress... Congress established the courts in the territories, and Congress... or the President appointed the judges that presided over those courts in the territories. In... you can see in the 1874 revision and consolidation of the Federal laws, the provisions common to all territories, it indicates that under Federal law the Congress had a Supreme Court in each territory with three judges who were appointed by the President. And then the territories were divided into three judicial districts. And one of those judges, then, would preside in that judicial district. And then the courts in those districts would... the judges in those districts would hold court "for the purpose of hearing and determining all matters and cases, except those which United States is a party. " So these were courts appointed by Congress, or created by Congress, and these were judges appointed by the President. And if a 1983 action was to be brought in the territories, it would be brought in those courts. So, we didn't have the same situation as we had in the states, where they needed to provide a Federal forum. In fact, the courts of the territories were, in the sense that they were created for the territories by the Federal Government with judges appointed by the President, a Federal forum. So that purpose really doesn't apply in the territories as it did in the states.
Speaker: Let me... let me just stop you there for a minute.
John Patrick Mason: Yes.
John Paul Stevens: Were there other courts besides the courts that you have just described in the territories on the continental... on the North American continent?
John Patrick Mason: There were justice of the peace courts and probate courts, but if you look at the provisions--
John Paul Stevens: What courts, in your view, were supposed to enforce 1983 in the territories?
John Patrick Mason: --That would be brought in the district court of the territory in 1874.
John Paul Stevens: The ones that you have just described?
John Patrick Mason: Yes.
John Paul Stevens: Then why wouldn't they also be brought in the similar courts in Guam?
John Patrick Mason: Well, on Guam... okay, the situation was on Guam, in 1950 when Congress gave Guam self-government under the Organic Act, they created the District Court of Guam, and it was the same. That district court had all jurisdiction, but then they allowed the legislature of Guam to create such other courts as it decided.
Speaker: Right.
John Patrick Mason: And so, one year later the legislature created well, basically the island court. But it... at that point it left jurisdiction in the district court for most felony cases and for cases... civil cases above $2,000. So, there again, if you had a civil rights action at that time brought in a court of Guam it would be brought in the district court unless it was less than $2,000. But, so... but in 18... in 1974 then the legislature went ahead and created the Superior Court of Guam, which at that time then actions under Federal law were brought in the district court and actions under local law were brought in the Superior Court of Guam. But the appeals from this superior court still go to the District Court of Guam before, and then to the Ninth Circuit. So District Court of Guam still has that jurisdiction. But in 1874, if we look at the intent of the Congress when it added territories, you can see that at that time... what they were trying to get at that a Federal forum did exist in the territories at that time. The situation on Guam that happened in 1974 didn't apply to the territories at that time. Another important thing, of course, in deciding what the intent of Congress was is the common law sovereign immunity that existed in the territories. And this Court has held that Congress did not intend to override established common law defenses and immunities without specific language to the contrary. In 1874 the territories had an established tradition of immunity from suit without its consent, and this Court so held in the Kawananakoa case. And in fact in that case this Court specifically rejected the argument that was made that territories are like municipal corporations. And the Court held that the territories had immunity by the nature of the type of government that was created in their Organic Act. And then in the Rosaly case in 1913, this Court then applied that reasoning to the unincorporated territories. There were, of course, only incorporated territories in 1874, but the reasoning was applied to the unincorporated territories, which Guam is, in 1913 by this Court. Now, Petitioners argue that Kawananakoa and Rosaly don't apply, because that means there is only sovereign immunity in the local courts under local law. Well, what that overlooks, of course, as I talked about a minute ago, is the nature of the court system in the territories. And in fact these congressionally created courts were the local courts, although they were created by Congress. And they were to hear all matters and cases, and that would include 19... Section 1983 actions. And also, Kawananakoa was a... the action where immunity was held... was upheld was actually brought in one of those congressionally created courts, and the immunity was upheld. And also, Kawananakoa cites with approval three prior territory cases, which are Wisconsin v. Doty, Langford v. King, and Fisk v. Cuthbert. And there again, those were cases in which immunity was upheld and the courts in which the cases were brought were these congressionally created territorial courts.
John Paul Stevens: What was the source of the cause of action where immunity was upheld in that case? I don't remember it.
John Patrick Mason: What were the courts?
John Paul Stevens: No, no. What was the cause of action which was defeated by the--
John Patrick Mason: Okay, the cause of action... or causes of action... the Langford case was a writ of mandate to enforce... force the county treasurer to accept a writ in payment of taxes.
John Paul Stevens: --So that was a claim based on the territorial law that was sought to be enforced?
John Patrick Mason: Yes. I think all three... all three of those cases were based on territorial law.
John Paul Stevens: Would you claim that there would be immunity in Guam from a suit, say, by a resident of Hawaii for negligence committed by an agent of Guam in Hawaii?
John Patrick Mason: No, I don't think there would be.
John Paul Stevens: It would not be sovereign immunity there. I'm asking the--
John Patrick Mason: Well, the--
John Paul Stevens: --Then they had Nevada against Hall. You don't question the continuing validity of Nevada against Hall, do you?
John Patrick Mason: --Well, no, if the action--
John Paul Stevens: Or you don't claim that Guam has a greater immunity than Nevada claimed in that case?
John Patrick Mason: --No, I don't think that is necessarily true, no. Not at all. But as to laws, again, the jurisdiction of these courts was for all cases that were brought in the territory. And so when local... when Federal laws are created and made specifically applicable to the territory, then they are basically a law of the territory, if Congress makes them applicable.
John Paul Stevens: Well, if your emphasis is so much on the courts, I don't know if it will be possible or not, but if the Plaintiff could get jurisdiction over Guam by some form of process and sue them in the Federal court in Hawaii... would the Hawaiian... the Federal district court in Hawaii have jurisdiction over such a claim?
John Patrick Mason: Well, it would depend on Guam's immunity. I think, so it would depend--
John Paul Stevens: Well, then your... it doesn't seem to me your immunity has much to do with the court in which the action is brought. That is what I... I am puzzled about so much reliance on the nature of the tribunal.
John Patrick Mason: --The reason I am bringing up the courts is that they claim because... that these are... that these courts are somehow courts of a separate sovereign, and therefore the common law immunity doesn't apply, the common law immunity which was incorporated in the 1871 Civil Rights Act, it doesn't apply. But what we're saying is it does apply in those very courts. And those very courts were the ones in which the Kawananakoa case was brought. The other thing we can look at, and this is... this is... specifically is the definition of the word person. We can look at the act itself. And I think again there was some confusion because territories were not in the act in 1871. It was only prohibitions for persons acting under color of state law. It wasn't until 1874 that territories were added. And in 1874, when territories were added, that was, in that same act, was when the Dictionary Act was changed. And it was changed from bodies corporate, or politic and corporate to partnerships and corporations. Therefore, in that same act... and the reason for the change was stated by the committee, was so that the... a drafter of a Federal statute would not have to take care to exclude states, territories, foreign governments and the like from the definition. So here, when territories are specifically added, the definition under Federal law does not include territories. Another indication of congressional intent in both 1874, and this has to do with Guam also, is... and an indication that the Federal... the Congress is really treating territories like states, was the provision that was in the Organic Acts of the territories at the time. And this is in the provisions common to all territories, it is stated that the Constitution and all laws of the United States which are not locally inapplicable, of course 18... Section 1983 had been made locally applicable in 1874, those which are not locally inapplicable shall have the same force and effect in the organized territories as elsewhere in the United States. So those laws were to have the same force and effect. Then on Guam in 1968 the Fourteenth Amendment was specifically added to the Organic Act and those rights that were in the Fourteenth Amendment. And when the Congress added that provision it specifically stated in that same amendment the provisions, and that would include those provisions of the Fourteenth Amendment, shall have the same force and effect as in the United States or in any state of the United States. It went on to say in that same amendment all laws of Congress in the Guam legislature inconsistent with this are repealed to the extent of their inconsistency. So I think that this indicates that the residents of Guam, like the residents of the states, in Section 1983 action were to have the same rights. They were to have rights against individuals who violated their constitutional rights. But it did not provide for damages against the territory governments, just like it didn't in the states. Now, if we... another indication, of course, is the role in 1874 that the Federal Government played in financing this... the territories. At that time there were, under the provisions common to all territories, there were direct appropriations by Congress to the territories. And they paid the expenses of the legislature and government appointed officials, and there was even a direct appropriation, a contingency expense for the Territory of Washington of $1,500 and of $1,000 for the other territories then existing. And because of the direct financial role that Congress played, it's doubtful that they would intend to incur liability for the territories without specifically saying so. Now, the other indication of intent, we go to the Organic Act of Guam. And when Congress exercised its plenary control and created the government of Guam in 1950, it created one of those entities it had under Kawananakoa: common law sovereign immunity. We have to remember, before 1950, if you brought a suit against the administering body of the territory of Guam, you brought it against the Navy. So it was a suit against the Department of the Navy. It wasn't until 1950 that the government of Guam was created. And they created one of those bodies in the tradition of the territories that had common law sovereign immunity with separate branches of government with separate powers. But there was a question then even whether you could sue the government of Guam, even if they consented. So in 1959 the Congress corrected that. And in corrected that, they gave... stated clearly in the situations in which immunity would be waived. They said that the government of Guam could be sued with the consent of the legislature evidenced by enacted law in contract and in tort. And the Assistant Secretary of the Interior submitted a letter with the bill when it went before the Congress, and he indicated in there the purpose was to allow the officials, or the elected officials of the territory to determine when the best interests of the territory would be served, you know, by balancing private litigants against public goals of government. Now, the Guam legislature has struck the balance under which authority they were given by Congress, and they have allowed negligence actions against the government with a maximum of $100,000 for wrongful death and $300,000 for personal injury. The petitioners' claim would allow unlimited damages for intentional torts under Section 1983. Now, this would negate the intent of Congress and negate the intent of Guam's duly elected officials. Therefore, we feel that since the intent of Congress, at least in 1959, it is explicitly clear with respect to torts, and it says we are going to let the Guam legislature balance the interests in this, in cases of tort. And the Guam legislature has done that--
Byron R. White: xxx use that to interpret 1983 as amended in 1874?
John Patrick Mason: --Well, it... what it does, it gives an intent of Congress in creating this entity called the government of Guam. I don't think it amends everything... anything. It just... it says how... how this would apply.
Byron R. White: But you say we should use... we should refer to this action in 1959 to interpret the 1974 as amended 1983... the 1874.
John Patrick Mason: Well, I think there is two indications of congressional intent. There is what happened with the territories in 1874, you can look at that, and then as to Guam specifically as to congressional intent, you have to look at the... because Guam didn't exist of course then. You have to--
Antonin Scalia: That isn't congressional intent as to what this statute means. You could, you can consider the 20th century action to be indication of what Congress believed 1983 meant. Right?
John Patrick Mason: --Well, I think--
Antonin Scalia: But Congress might have believed wrong.
John Patrick Mason: --Well, I think it is an indication of how... what liability Congress intended to create for the government of Guam, where they had not specifically stated there was liability.
Antonin Scalia: What liability it thought it was creating.
John Patrick Mason: Well, since this is--
Antonin Scalia: You're not saying that the act that created Guam amends 1983 insofar as Guam is concerned, are you?
John Patrick Mason: --No.
Antonin Scalia: Okay. So then all you are saying is that that shows what Congress thought the law was in 19... in the 1950s.
John Patrick Mason: Well, as to Guam it shows what Congress... the law that Congress made, and that it's... the 1874 act's applicability, you have to look at the two to determine congressional... Congress could have said in 18... in 1959, the territory of Guam shall be liable for Section 1983 suits. And, you know, you can say did that amend the law or not. It just made them specifically liable. But what they did say is, in tort, we are going to let the Guam legislature say whether there is liability.
William H. Rehnquist: When did the United States acquire dominion over Guam?
John Patrick Mason: That was in 1890... 1898, in the Treaty of Paris. It was Guam, Puerto Rico--
William H. Rehnquist: The end of the Spanish-American War.
John Patrick Mason: --Yes. Yes. And at that time Guam was placed under the jurisdiction of the Navy, and it continued that way until 1950. And basically the naval governor had total authority on Guam, administrative authority. It wasn't until 1950 that Guam was able to obtain self-government, in 1950.
Antonin Scalia: xxx the years, wasn't it, too?
John Patrick Mason: Well, there wasn't... Puerto Rico obtained self-government a lot sooner than that.
Antonin Scalia: Sooner, but for quite a time there was a naval governor there.
John Patrick Mason: Yes. Guam waited 50 years. I don't think Puerto Rico waited nearly that long. And so we would ask this Court then to uphold the decision of the Ninth Circuit, that Guam is not subject to liability under Section 1983. Thank you.
William H. Rehnquist: Thank you, Mr. Mason. Mr. Feldman, we'll hear now from you.
James A. Feldman: Thank you, Mr. Chief Justice, and may it please the Court: The position of the United States is that, for the reasons given in our brief, first, Guam is not a person for purposes of Section 1983, and second, Guam is entitled to assert sovereign immunity as a defense to this suit. In other words, because Guam is a self-governing entity much like states, it is entitled to be treated as a state would be treated for purposes of 1983. I would like to make three major points this afternoon, other... among those that are made in our brief. First, with respect to the question of whether Guam is to be considered a person, there is direct and rather conclusive evidence that the Congress that added the words 1874 did not intend to include territories within the scope of the word person. And, in addition, that that Congress did intend that states and territories be treated alike for purposes of Section 1983. Second, this Court has repeatedly stated that 19... that Section 1983 was not intended to override well accepted common law notions of immunities and defenses. In 1874, in fact both in 1874 and before and after that date, the idea of territorial sovereign immunity was well accepted in our law. Congress would therefore not have expected that a territory would be liable under Section 1983, and under this Court's reasoning in Will and a whole line of other cases, did not intend to make a territory liable under Section 1983.
Sandra Day O'Connor: Mr. Feldman, is there any significant difference between incorporated territories and unincorporated territories?
James A. Feldman: No, I don't believe there is. For one thing, in 1874 when this Congress acted, there was no such distinction in the law. But, in any event, when that distinction came into the law just after the turn of the century, it was primarily for purposes of determining which constitutional rights apply to a territory. It was not for purposes of determining whether sovereign immunity applied to a territory. And, indeed, when... as has already been pointed out, when the Court reached those issues in the Hawaii case, Hawaii was an incorporated territory, I believe at the time, and the Court held that it was entitled to the sovereign immunity. And when the Court reached it in Puerto Rico, which was not an incorporated territory, the Court held the same thing.
Sandra Day O'Connor: Would your position on whether the territory is a person be the same in the case of the Northern Marianas?
James A. Feldman: I think, as a general matter, the arguments that we have advanced in support of Guam's immunity in this case would apply to the other territories, if it is a self-governing entity.
Sandra Day O'Connor: How about the District of Columbia?
James A. Feldman: The District of Columbia is a bit more difficult a case for a number of reasons. First, the District... the statute, as it reads now, includes states, territories and the District of Columbia. Now, states and territories are categories of entities, but the District of Columbia is an individual unit. There is only one of them. And that possibly may indicate that the District of Columbia after all does have a sui generis quality. But in any event, the relevant congressional intent with respect to the District of Columbia was that of the 1979 Congress that added the District of Columbia to the statute. And that Congress was acting in a rather different legal environment than were the Reconstruction Congresses in the 1870s. Therefore, in short, I don't... I think you would have to look specifically at that action to determine the status of the District of Columbia. But insofar as the District of Columbia is a fully self-governing entity, and Congress intended to make it such, I think many of our arguments would apply to the District of Columbia. It... my third point... well, my third point I wanted to make today was that with respect to sovereign immunity issues, there is no substantial dispute that Guam is, as a general matter, entitled to assert sovereign immunity, both as a result of the Organic Acts and as a result of the long-established tradition of territorial common law sovereign immunity. Petitioner asserts, however, that Guam is not entitled to assert its sovereign immunity in the courts of a separate sovereign or in cases arising under the laws of a separate sovereign. Now, in fact, Guam is not an entirely separate sovereign from the United States. But even if it were seen as a separate sovereign, the law has been fairly clear since the very early years of this country, and you could look at Judge... at Chief Justice Marshall's decision in The Schooner Exchange case, that a sovereign that is entitled to assert immunity is entitled to do so both in its own courts and in the courts of the United States, and both with respect to causes of action arising under its own laws and under those arising under the laws of the United States.
Sandra Day O'Connor: Well, Mr. Feldman, if the... if Guam is not a person under the meaning of Section 1983, do we have to go further and deal with sovereign immunity?
James A. Feldman: No, I would... you don't... I would suggest you don't. It really... the sovereign immunity issue arises... was not passed on by the court of appeals, and arises only if the Court were to determine, contrary to our argument, that Guam were a person. Then it... you... it... the issue of sovereign immunity would have to be confronted by someone. It could be remanded to the court of appeals, but it has been fully briefed here and this Court could choose to decide it also. With respect to the Dictionary Act, I think most of the important points have been made. It was the 18... the very same Congress, in fact in the very same piece of legislation that added the word "or territory" to the statute. It was that very same Congress at the same time that changed the Dictionary Act. Now, although we don't have any specific commentary relating to the addition of the word "or territory", we do have specific commentary cited in the brief of Respondent for the meaning of the word person at that time. And the Revision Commission indicated both, that the word person should not ordinarily apply to states, territories or foreign governments, and that that why... that was why it was recommending the change in the Dictionary Act. I would suggest that this is relevant both because it establishes that that Congress did not intend to include territories within the scope of the word person, and because that Congress intended that states and territories be treated alike for purposes of Section 1983. There is no indication of any contrary congressional intent about this issue, and indeed, this Revision Commission note is in full accord with the statement in Will that the word person does not ordinarily include the sovereign. In fact, it applies... it supplies conclusive evidence that that Congress felt that those entities entitled to sovereign immunity, states, territories and foreign governments, were not... were not generally intended to be encompassed within the word person. With respect to the... with respect to the sovereign... a second basis for holding that that Congress did not intend to include territories within the scope of the word person, is the long history of sovereign immunity that is cited in the briefs and that has been discussed. I would point out, in addition to that, that having decided... made... having decided the Will case the way the Court did, the evidence that Congress intended states and territories to be treated the same for this statute, and in fact that the Court had in the past and has in the past treated territories and states as a general matter of common law sovereign immunity in identical fashion, would suggest that the same result should be reached here as was reached in the Will state... Will case. It would be odd to say that the Congress that was interested in protecting civil rights in the southern states in the 1870s intended that Section 1983 apply with greater force to territories than to states, when the addition of territories to the statute was, after all, just an afterthought on Congress' part, made three years later, and was not... the focus of Congress's intention, of course, at that time was on enforcement of constitutional rights in the states. With respect to the sovereign immunity issue, if the Court were to reach it, the... I don't think, in response to Justice Stevens' question before, that Nevada v. Hall establishes that Guam could not... that Guam sovereign immunity should not be recognized. Nevada v. Hall recognized the long tradition of comity, and recognized that the general rule is that sovereign immunity would be recognized in the courts of a different sovereign. Of course, in the case of Nevada v. Hall, California had specific reasons of policy relating to California's own lack of sovereign immunity that it asserts itself, and also the fact that Nevada... what was at issue in the case was a car driven by someone from Nevada in California, not to apply sovereign immunity. I don't think in this case there is any overriding policy concerning the application of sovereign immunity. In fact, all of the considerations are that this Court and Congress--
John Paul Stevens: Well, if we thought Congress had meant to include Guam as a person, that would be a fairly strong overriding policy, wouldn't it? If we... because your argument is making that assumption now, I think.
James A. Feldman: --If--
John Paul Stevens: If Congress had specifically intended Guam to be treated as a person, you would still say there is a sovereign immunity defense?
James A. Feldman: --Well, Congress may have intended that Guam be treated as a person. First of all, I think the two issues of sovereign immunity and as treatment as a person are independent. The Court said that, I think both the majority and the dissent in the Will case, and it said that a number of other times. In fact, in the pre-Will cases where the Court held, for instance in Alabama v. Pugh, that a state could be sued only with its consent, it must have been assuming at that point that even if a state were a person it would still be entitled to a sovereign immunity defense. And therefore it could waive it. So I think that they are two independent issues. In addition, that would have some bite. Guam has waived its sovereign immunity for some purposes, as was pointed out, and Guam could waive its... might waive sovereign immunity in such a way as to bring it within Section 1983, even though it might assert sovereign immunity in other cases.
William H. Rehnquist: Thank you, Mr. Feldman. Mr. Siegel, you have 14 minutes remaining.
Jeffrey R. Siegel: Thank you, Your Honor. This Court stated in Polyblank that the sovereign is exempt from suit not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. I think it's clear that it was the intention of the Court, and the only tradition of immunity with respect to territories is for acts arising under territorial law. I think amicus has a problem. It says on one hand that Guam is sovereign enough, has enough self-government to be treated for a state... as a state for Section 1983 purposes. However, when this argument is raised, that it is not an immunity which extends to acts under Federal law, amicus says well, it is not really a separate sovereign. And I think that points up the reasoning of this Court's prior decisions concerning Section 1983 in the Eleventh Amendment, specifically that it is... the Eleventh Amendment had always... has always played an enormous role in determining governmental liability under Section 1983. Indeed, the Court did not hold in Monell that simply cities are liable. It said that arms of the state, arms... entities which are not arms of the state for Eleventh Amendment purposes, is liable. I will suggest that there will be no finding, if we review the legislative history, of any comment in that regard. But that is the conclusion that the Court drew from the use of the word person and the legislative context of the act. I think it's appropriate to maintain that as a... as at least a guide or a consideration, as the Court said in Will, in determining the scope of Section 1983. With respect to Respondent's point that initially the only courts existing in territories were Federal courts, I will suggest that in 1871 or 1874 Congress was well aware that the territories were going to become states, and at some point state courts would be established in what would become states, formerly territories. I'd suggest, then, that that in no way diminishes the Court's point in Will that the purpose... one of the purposes of Section 1983 was to provide a Federal forum for vindication of civil rights. Much has also been made of the 1874 revision of the Dictionary Act. But the more specific and applicable revision was to Section 1983, declaring that acts under color of territoriel law were now subject to liability.
Speaker: At the suit of a person.
Jeffrey R. Siegel: Correct. But there is some intention demonstrated--
Speaker: At the suit of a person.
Jeffrey R. Siegel: --Right.
William H. Rehnquist: Against a person.
Jeffrey R. Siegel: Against a person. But it was... there was a clear intention to apply whatever the original scope of the word person was in 1871, because that is the Congress that passed the law, to territories. Thank you very much.
William H. Rehnquist: Thank you, Mr. Siegel. The case is submitted.
Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.