Ngiraingas v. Sanchez/Dissent Brennan

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

Today the Court holds that neither a Territory nor an officer of the Territory acting in his or her official capacity is a "person" within the meaning of § 1983. I believe that the opposite conclusion is compelled by the history, legislative and otherwise, surrounding the passage of § 1983 and by the absence of any immunity on the part of Territories from congressional enactments. Therefore, I respectfully dissent.

* The Court's determination that "Congress did not intend to include Territories as persons who would be liable under § 1983," ante, at 192, rests primarily on its conclusion that "review of § 1983's history uncovers no sign that Congress was thinking of Territories when it enacted the statute over a century ago in 1871." Ante, at 187. The Court's review, however, is incomplete. Our decision in District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), set forth ample evidence that Congress had the Territories in mind when it enacted the predecessor of § 1983, the Civil Rights Act of 1871. Carter held that the District of Columbia is not a "State or Territory" for purposes of § 1983:

"[S]ince the District is itself the seat of the National     Government, Congress was in a position to observe and, to a large extent, supervise the activities of local officials.      Thus, the rationale underlying Congress' decision not to      enact legislation similar to § 1983 with respect to federal      officials-the assumption that the Federal Government could      keep its own officers under control-is equally applicable to      the situation then existing in the District of Columbia." Id., at 429-430, 93 S.Ct., at 608-609 (footnote omitted).

We noted, however, that the situation in the other Territories was dramatically different. While acknowledging that, as a legal matter, "Congress also possessed plenary power over the Territories," id., at 430, 93 S.Ct., at 609, we noted that "[f]or practical reasons, however, effective federal control over the activities of territorial officials was virtually impossible." Ibid. We explained:

" '[T]he territories were not ruled immediately from     Washington;  in a day of poor roads and slow mails, it was      unthinkable that they should be.  Rather, Congress left      municipal law 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 these delegations was nearly      as broad as that enjoyed by the States.' "  Id., at 430-431,      93 S.Ct., at 609, quoting Glidden Co. v. Zdanok, 370 U.S.      530, 546, 82 S.Ct. 1459, 1470-1471, 8 L.Ed.2d 671 (1962)     (opinion of Harlan, J.).

We also noted, contrary to the Court's implication today, see ante, at 189, that because territorial judges were appointed to a term of only four years, they "were peculiarly susceptible to local pressures, since their reappointments were often dependent upon favorable recommendations of the territorial legislatures." Carter, supra, at 431, n. 28, 93 S.Ct., at 609-610, n. 28; see also L. Friedman, A History of American Law 142 (1973) (noting the corruption common among territorial judges);  E. Pomeroy, The Territories and the United States 1861-1890, Studies in Colonial Administration pp. 52-56 (1947) (same). We concluded that "although 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." Carter, supra, at 431, 93 S.Ct., at 609 (footnote omitted), quoting E. Pomeroy, supra, at 4; see also Examining Board of Engineers, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 596, 96 S.Ct. 2264, 2278, 49 L.Ed.2d 65 (1976) ("Congress . . . lacked effective control over actions taken by territorial officials, although its authority to govern was plenary").

Our recognition in Carter that Congress was concerned with the protection of civil rights in the Territories when it fashioned the scope of § 1983 is fully supported by the historical events surrounding the statute's enactment. In the years preceding the passage of the Civil Rights Act of 1871, turmoil and racially motivated violence in the Territories focused Congress' attention on the need for federal protection of basic civil rights there. The Territories, of course, had been a principal source of friction between the North and the South before the Civil War. The idea of "squatter sovereignty," advanced by Stephen A. Douglas of Illinois and enshrined in the Compromise of 1850, allowed citizens of each Territory to decide for themselves whether they would join the Union as citizens of a slave or free State. The Compromise of 1850 provided that the admissions of Utah and New Mexico were to be governed by "squatter sovereignty," and the Kansas-Nebraska Act of 1854 extended the principle to those Territories as well. The resulting disputes within the Territories between abolitionist and proslavery groups gave rise to rampant acts of violence, the best illustration of which has come to be known as "bleeding Kansas."

In the 1855 elections for the Kansas Territorial Legislature, several thousand "border ruffians" crossed over from Missouri to stuff ballot boxes and ensure the election of a legislature that would, and did, pass a drastic slave code. See S. Morison, H. Commager, & W. Leuchtenburg, A Concise History of the American Republic 260 (2d ed. 1983). The free-state forces in Kansas responded by setting up their own rump government, and "by 1856 Kansas had two governments, both illegal." Ibid. What followed was a "savage conflict" between the two sides. Ibid. "Into Kansas thronged Southern and Northern zealots, brawlers, adventurers, and land jobbers. From New England, financed by Boston money, moved Abolitionist immigrants who were led by their ministers but who also brought their rifles with them." L. Hacker, The Shaping of the American Tradition 468 (1947). Public buildings were burned, and supporters of each side were murdered. In retaliation for the slaying of two Abolitionists, John Brown killed five proslavery men at Osawatomie Creek. In sum, in what "might almost be regarded as the opening battle of the civil war," 1 J. Blaine, Twenty Years of Congress: From Lincoln to Garfield 121 (1884), law and order broke down completely.

This and other examples of turbulence in the Territories were very much on Congress' mind when it enacted the Civil Rights Act of 1871. Congress would not have discussed the Territories so often in its deliberations unless it intended the Act to apply there. Proponents of the measure stressed the important role the Federal Government had played in curbing the prewar spread of slavery in the Territories. See, e.g., Cong.Globe, 42d Cong., 1st Sess., 335 (1871) (remarks of Rep. Hoar) ("[T]he great Northwest was saved from slavery by the national power. . . . If it had not been for the benignant interposition of the national authority against the local desire to establish despotism, those great States of Illinois, Indiana, Ohio, Michigan, and Wisconsin would have been today slave-holding States"). Some legislators drew an explicit linkage between the Civil Rights Act and violence in the Territories, characterizing opponents of the legislation as "[t]he same men [who] were wont to ridicule 'bleeding Kansas.' " Id., at 414 (remarks of Rep. Roberts). Others emphasized the importance of extending to "every individual citizen of the Republic in every State and Territory of the Union . . . the extent of the rights guarantied to him by the Constitution." See id., at App. 81 (remarks of Rep. Bingham) (emphasis added); see also id., at App. 86 (remarks of Rep. Bingham) (referring to "justice for all . . . on the frontiers of your widely extended domain"). The Civil Rights Act was intended "to protect and defend and give remedies for their wrongs to all the people" and thus to be "liberally and beneficently construed." Id., at App. 68 (remarks of Rep. Shellabarger) (emphasis added). In sum, Congress contemplated that the Civil Rights Act of 1871 would extend to the Territories.

This conclusion is bolstered by the fact that in 1867 Congress had extended suffrage to all adult males in the Territories, including Afro-Americans, at a time when the States were still permitted to deny the right to vote on account of race. See Cong.Globe, 39th Cong., 1st Sess. 2600-2602 (1866). The organic Acts establishing territorial governments were amended to provide that:

"[T]here shall be no denial of the elective franchise in any     of the Territories of the United States, now, or hereafter to      be organized, to any citizen thereof, on account of race,      color, or previous condition of servitude;  and all acts or      parts of acts, either of Congress or the Legislative      Assemblies of said Territories, inconsistent with the      provisions of this act, are hereby declared null and void." 14 Stat. 380 (1867).

See also E. McPherson, The Political History of the United States of America During the Period of Reconstruction 184 (1871); E. Foner, Reconstruction: America's Unfinished Revolution 1863-1877, p. 272 (1988). In 1874, Congress passed legislation to ensure that every Territory's organic Act included the protections of the Constitution and civil rights embodied in other federal laws. See Rev.Stat. § 1891 (1874).

The extension of these basic federal rights and the recognition of the concomitant need for federal enforcement demonstrate that Congress intended Territories to be considered "persons" for purposes of § 1983. Of course, the specific reference to "Territory" in § 1983's predecessor was not added until 1874, some three years after the initial passage of the Civil Rights Act. But this is of no moment. Although there is no legislative history to explain the addition, see Carter, 409 U.S., at 424, n. 11, 93 S.Ct., at 606, n. 11, we have noted that "[t]he evident aim was to insure that all persons residing in the Territories not be denied, by persons acting under color of territorial law, rights guaranteed them by the Constitution and laws of the United States." Flores de Otero, 426 U.S., at 582-583, 96 S.Ct., at 2271-2272. Congress' overriding concern lay in providing strong remedies for civil rights violations in the Territories. Because few measures are more effective than suing the government directly for damages, see Owen v. City of Independence, 445 U.S. 622, 650-656, 100 S.Ct. 1398, 1415-1418, 63 L.Ed.2d 673 (1980); Quern v. Jordan, 440 U.S. 332, 357-365, 99 S.Ct. 1139, 1153-1157, 59 L.Ed.2d 358 (1979) (BRENNAN, J., concurring in judgment), I believe that Congress intended a Territory to fall within the class of "persons" potentially liable under § 1983.

The majority urges that this construction would create a somewhat "awkward" interpretation of the statute, ante, at 190, since Territories by definition act "under color of" their own laws. I do not find this awkwardness determinative, however, because § 1983 also extends to natural persons who act under color of territorial law. The under-color-of-law requirement serves to ensure that not every act of these natural persons in their private capacities gives rise to § 1983 liability. The only method of avoiding the redundancy of which the majority complains would have been to replace the catchall term "persons" with a detailed list of each separate category of possible defendants. That approach would have been even more "awkward" than the one ultimately chosen by Congress. In any event, I thought that we enforced the statutes drafted by Congress whether or not they flowed "trippingly on the tongue."

Neither is my conclusion that Territories are "persons" under § 1983 undermined by the 1874 recodification of the Dictionary Act, which altered the definition of "person" by replacing the phrase "bodies politic and corporate" with "partnerships and corporations." 1 Revision of the United States Statutes as Drafted 19 (1872) (hereinafter Draft). The Court suggests that Congress clarified the definition of "person" in the Dictionary Act to exclude Territories even while at the same time making clear that § 1983 covered civil rights abuses in the Territories. See ante, at 189-192. The notion that Congress would have moved simultaneously in such contrary directions is implausible. At any rate, there is little authoritative support for the Court's view, since the recodification of the Dictionary Act was accompanied not by legislative history from Congress itself but only by comments from commissioners appointed to revise the United States Code. See ante, at 190-191 (citing the remarks of the commissioners). "Under established canons of statutory construction, 'it will not be inferred that Congress, in revising and consolidating the laws, intended to change their effect unless such intention is clearly expressed.' " Finley v. United States, 490 U.S. 545, 554, 109 S.Ct. 2003, 2009, 104 L.Ed.2d 593 (1989), quoting Anderson v. Pacific Coast S.S.C.o., 225 U.S. 187, 199, 32 S.Ct. 626, 630, 56 L.Ed. 1047 (1912). The revision of the Dictionary Act surely does not evince a clear intent to change the scope of § 1983. To the contrary, the preface to the revision explains that the definitions supplied are merely presumptive in the sense that "the provisions of this Title are peculiarly provisional and experimental. They are put forward as questions, not as decisions.  They are to guide in commencing the task of revision, and are in turn to be revised and developed as that task proceeds." 1 Draft, at 1. I do not think that Congress would have undertaken so tentatively the substantial alterations described by the majority.

Even were I to accept the Court's premise that whether Territories are "persons" for purposes of § 1983 must be analyzed in light of the 1874 recodification of the Dictionary Act, I would reach the same conclusion. Although the recodification eliminated the reference to "body politic," this change did not exclude Territories from the scope of § 1983 because the recodification also provided that "the word 'person' may extend and be applied to partnerships and corporations," id., at 19 (emphasis added). At the time of the revision the term "corporation" generally was thought to include political entities such as a Territory. See Cong.Globe, 39th Cong., 2d Sess., 451 (1867) (remarks of Rep. Bingham) (referring to the Territory of Nebraska as "a corporation"). "The word 'corporations,' in its largest sense, has a more extensive meaning than people generally are aware of. Any body politic (sole or aggregate) whether its power be restricted or transcendent is in this sense 'a corporation.' " Chisholm v. Georgia, 2 Dall. 419, 447, 1 L.Ed. 440 (1793) (Iredell, J.). A Territory thus would qualify as a "person" even under the 1874 recodification of the Dictionary Act.

Respondents argue that any congressional intent to subject Territories to liability as "persons" under § 1983 is belied by our previous conclusion that "in enacting § 1983, Congress did not intend to override well-established immunities or defenses under the common law." Will v. Michigan Department of State Police, 491 U.S. 58, 67, 109 S.Ct. 2304, 2310, 105 L.Ed.2d 45 (1989); see also Quern v. Jordan, 440 U.S., at 341-343, 99 S.Ct., at 1145-1146. Respondents note that in Will, we relied heavily on such a rule of construction in holding that States are not "persons" within the meaning of § 1983. We reasoned that "in deciphering congressional intent as to the scope of § 1983, the scope of the Eleventh Amendment is a consideration," because "Congress, in passing § 1983, had no intention to disturb the States' Eleventh Amendment immunity and so to alter the Federal-State balance in that respect." 491 U.S., at 66, 109 S.Ct., at 2310.

The concerns animating this rule of interpretation, however, are absent here because Territories have never possessed the type of immunity thought to be enjoyed by States. The Eleventh Amendment does not of its own force apply to the Territories, and the Organic Act of Guam, 64 Stat. 384 (codified at 48 U.S.C. § 1421 et seq. (1982 ed.)), which makes applicable to Guam numerous specific sections of the Constitution and Bill of Rights, expressly does not confer Eleventh Amendment immunity on the Territory. See 48 U.S.C. § 1421b(u) (1982 ed.). Even if the Eleventh Amendment reflects a common-law principle of state sovereign immunity against actions in federal court-a view I do not accept, see Atascadero State Hospital v. Scanlon, 473 U.S. 234, 258-302, 105 S.Ct. 3142, 3155-3177, 87 L.Ed.2d 171 (1985) (BRENNAN, J., dissenting)-the Constitution certainly does not embody such a form of common-law immunity applicable to Territories.

The plenary nature of federal authority over the Territories dispels any suggestion that they may assert a common-law immunity against a federal claim in a federal court. The Territories Clause provides without qualification that "[t]he Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." U.S.C.onst., Art. IV, § 3, cl. 2. An unincorporated Territory "exists at the behest of Congress.  By a simple vote of the Congress, the Organic Act under which the unincorporated territory exists may be repealed and the limited self government which it enjoys nullified." Brief for Government of Virgin Islands as Amicus Curiae 8. "The Government of a State does not derive its powers from the United States, while the Government of [a Territory] owes its existence wholly to the United States. . . . The jurisdiction and authority of the United States over that [T]erritory and its inhabitants, for all legitimate purposes of government, is paramount." Grafton v. United States, 206 U.S. 333, 354, 27 S.Ct. 749, 755, 51 L.Ed. 1084 (1907). Congress has "entire dominion and sovereignty" and "full legislative power" over the Territories. Simms v. Simms, 175 U.S. 162, 168, 20 S.Ct. 58, 60, 44 L.Ed. 115 (1899); see also Binns v. United States, 194 U.S. 486, 491, 24 S.Ct. 816, 817, 48 L.Ed. 1087 (1904); Late Corp. of Church of Jesus Christ of Latter-day Saints v. United States, 136 U.S. 1, 42-43, 45, 10 S.Ct. 792, 802-803, 34 L.Ed. 478 (1890). "[Congress] may make a void Act of the territorial government valid, and a valid Act void.  In other words, it has full and complete legislative authority over the People of the Territories and all the departments of the territorial governments." National Bank v. County of Yankton, 101 U.S. 129, 133, 25 L.Ed. 1046 (1880); see also Sere v. Pitot, 6 Cranch 332, 336-337, 3 L.Ed. 240 (1810); American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 542-543, 7 L.Ed. 242 (1828). Whatever limits the Constitution imposes on the exercise of federal power in the Territories, see United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (discussing the Insular Cases), sovereign immunity is not one of them.

We have recognized the concept of sovereign immunity "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." Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S.Ct. 526, 527, 51 L.Ed. 834 (1907). Our understanding of common-law sovereign immunity does not protect against liability under the laws of a superior governmental authority. See Owen v. City of Independence, 445 U.S., at 647-648 and n. 30, 100 S.Ct., at 1413, and n. 30. In addition, while the concept of immunity may afford a sovereign protection from suit "in its own courts without its consent, . . . it affords no support for a claim of immunity in another sovereign's courts." Nevada v. Hall, 440 U.S. 410, 416, 99 S.Ct. 1182, 1186, 59 L.Ed.2d 416 (1979). These principles lead ineluctably to the conclusion that although a Territory may retain common-law sovereign immunity against claims raised in its own courts under its own local laws, see Puerto Rico v. Shell Co. (P.R.), 302 U.S. 253, 262, 264, 58 S.Ct. 167, 171, 172, 82 L.Ed. 235 (1937); Porto Rico v. Rosaly, 227 U.S. 270, 273-274, 33 S.Ct. 352, 353, 57 L.Ed. 507 (1913); Kawananakoa, supra, 205 U.S., at 353-354, 27 S.Ct., at 527, a Territory, particularly an unincorporated Territory such as Guam that is not destined for statehood, see Rosaly, supra, 227 U.S., at 274, 33 S.Ct., at 353, can have no immunity against a claim like the one here-a suit in federal court based on federal law.

The Court in Will reasoned that Congress would not have abrogated state sovereign immunity, exemplified by the Eleventh Amendment, without a clearer statement of its intent to do so; today, the Court finds that a Territory lacking such sovereign immunity, either under the common law or by congressional grace, is not a "person" either. These conclusions are in tension. To the extent that our decision in Will reasoned that States are not "persons" within the meaning of § 1983 because Congress presumably would not have abrogated state sovereign immunity without a clear statement of its intent to do so, the opposite presumption should control this case: Because Congress has such plenary legal authority over a Territory's affairs and because a Territory can assert no immunity against the laws of Congress (except insofar as Congress itself grants immunity), we ought to presume that Territories are "persons" for purposes of § 1983.

I would hold that both Territories and territorial officers acting in their official capacities are "persons" within the meaning of § 1983 and that Guam has no sovereign immunity from suits in federal court under federal law. I therefore respectfully dissent.