Petitioners filed suit in the District Court under 42 U.S.C. §
1983 against respondents -- the Guam Government, the Guam Police
Department and its Director in her official capacity, and various
police officers in their official and individual capacities --
alleging that petitioners were arrested and assaulted by the
officers and forced to write and sign confessions. The District
Court dismissed the claims. The Court of Appeals affirmed the
dismissal with respect to the Government, the Police Department,
and the individual defendants in their official capacities.
Analogizing the Government of Guam to an administrative agency, the
court ruled that Guam and the Police Department are no more than
federal instrumentalities, and thus are not "persons" within the
meaning of § 1983, which, in its current version relates to
"[e]very person who [acts] under color of any statute . . . of any
State or Territory." The court also found that the Guam officials
could not be sued in their official capacities, because a judgment
against them in such capacities would affect the public treasury
and the suit essentially would be one against the Government
itself.
Held: Neither the Territory of Guam nor its officers
acting in their official capacities are "persons" under § 1983. Pp.
495 U. S.
186-192.
(a) Since § 1983's language affords no clue as to whether
"person" includes a Territory, indicia of congressional intent at
the time of enactment must be sought. Pp.
495 U. S.
186-192.
(b) The omission of Territories from the original version of §
1983 shows that Congress did not mean to subject them to liability.
Rather, in 1871, Congress was concerned with Ku Klux Klan
activities that were going unpunished in the Southern States and
designed § 1983's remedy to combat this evil, recognizing the need
for original federal court jurisdiction as a means to provide at
least indirect federal control over the unconstitutional acts of
state officials. Territorial courts, in contrast, were under the
Federal Government's general control, and would not have engendered
such immediate concern. Pp.
495 U. S.
187-189.
(c) The statute's successive enactments, in context, further
reveal the lack of any congressional intent to include Territories
as persons. In the 1871 version, persons could not possibly have
included Territories, because Territories are not States within the
meaning of the Fourteenth
Page 495 U. S. 183
Amendment, and could not have been persons acting under color of
state law.
Cf. Will v. Michigan Dept. of State Police,
491 U. S. 58,
495 U. S. 64.
This reading is supported by § 1983's next enactment in 1874, when
Congress first added the phrase "or Territory," thus making it
possible for a person acting under color of territorial law to be
held liable. At the same time, however, Congress pointedly
redefined the word "person" in the "Dictionary Act" -- which
supplied rules of construction for all legislation -- to exclude
Territories. Pp.
495 U. S.
189-192.
(d) Since Guam is not a person, neither are its officers acting
in their official capacity. P.
495 U. S.
192.
858 F.2d 1368 (CA 9 1988), affirmed.
BLACKMUN, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, STEVENS, and O'CONNOR, JJ., joined, and
in all but Part II-B of which SCALIA, J., joined. BRENNAN, J.,
filed a dissenting opinion, in which MARSHALL, J., joined,
post, p.
495 U. S. 193.
KENNEDY, J., took no part in the consideration or decision of the
case.
Justice BLACKMUN delivered the opinion of the Court.
In this case, we must decide whether a Territory or an officer
of the Territory acting in his or her official capacity is a
"person" within the meaning of 42 U.S.C. § 1983 (1982 ed.).
Page 495 U. S. 184
I
Petitioners Alex Ngiraingas, Oscar Ongklungel, Jimmy Moses,
Arthur Mechol, Jonas Ngeheed, and Bolandis Ngiraingas filed suit in
the United States District Court for the District of Guam, alleging
numerous constitutional violations and seeking damages under §
1983. [
Footnote 1] The named
defendants were the Government of Guam, the Guam Police Department,
the Director of the Police Department in her official capacity, and
various Guam police officers in their official and individual
capacities.
Petitioners were arrested by Guam police on suspicion of having
committed narcotics offenses. The complaint, as finally amended,
alleged that petitioners were taken to police headquarters in
Agana, where officers assaulted them and forced them to write and
sign statements confessing narcotics crimes.
The District Court dismissed the claims against the Government
of Guam and the Police Department on the ground that Guam was
immune from suit under the Organic Act of Guam, 64 Stat. 384, § 3,
as amended, 48 U.S.C. § 1421a, unless Congress or the Guam
Legislature waived Guam's immunity. App. to Pet. for Cert. A-4 to
A-6. The District Court also dismissed the action against the
individual defendants in their official capacities, explaining
that, because
Page 495 U. S. 185
a judgment against the individuals in their official capacities
would affect the public treasury, the real party in interest was
the Government of Guam.
Ibid.
The Court of Appeals for the Ninth Circuit affirmed in part and
reversed in part. 858 F.2d 1368 (1988) (superseding the opinion at
849 F.2d 372). Analogizing the Government to an administrative
agency, the court ruled that Guam is "no more than" a federal
instrumentality, and thus is not a person within the meaning of §
1983. 858 F.2d at 1371-1372. "For the same reasons," the Police
Department, also, is not a person under § 1983.
Id. at
1372. Finally, the Court of Appeals ruled that Guam officials may
not be sued in their official capacities under § 1983, because a
judgment against those defendants in their official capacities
would affect the public treasury, and the suit essentially would be
one against the Government itself.
Ibid. [
Footnote 2] Accordingly, the court affirmed
the District Court's dismissal of the claims against the Government
of Guam, the Guam Police Department, and the individual defendants
in their official capacities. [
Footnote 3]
Page 495 U. S. 186
Because of the importance of the question, and because at least
one other Court of Appeals has advanced a different view as to
whether a Territory is subject to liability under § 1983, [
Footnote 4] we granted certiorari. 493
U.S. 807 (1989).
II
A
Guam, an island of a little more than 200 square miles located
in the west central Pacific, became a United States possession at
the conclusion of the Spanish-American War by the Treaty of Paris,
Art. II, 30 Stat. 1755. Except for the period from December, 1941,
to July, 1944, when Japan invaded and occupied the island, the
United States Navy administered Guam's affairs from 1898 to 1950,
when the Organic Act was passed. [
Footnote 5] Among other things, the Act provided for an
elected governor and established Guam as an unincorporated
Territory. 48 U.S.C. §§ 1421a and 1422. It was said at the time
that this unincorporated status did not promise eventual statehood.
See H.R.Rep. No. 1365, App. No. 3, 81st Cong., 1st Sess.,
9 (1949). The United States continues to this day to have a
military presence in Guam, with an Air Force base, a Navy
communications base, air and weather stations, and a large complex
that serves the Seventh Fleet. [
Footnote 6]
To determine whether Guam constitutes a "person" within the
meaning of § 1983, we examine the statute's language and purpose.
The current version relates to "[e]very person who [acts] under
color of any statute . . . of any State or Territory."
Page 495 U. S. 187
The statute itself obviously affords no clue as to whether its
word "person" includes a Territory. We seek, therefore, indicia of
congressional intent at the time the statute was enacted.
See
District of Columbia v. Carter, 409 U.
S. 418,
409 U. S. 425
(1973) (analysis of purposes and scope of § 1983 must "take
cognizance of the events and passions of the time at which it was
enacted").
See also United States v. Price, 383 U.
S. 787,
383 U. S. 803
(1966).
B
Our 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. The historical background shows with stark
clarity that Congress was concerned only with events
"stateside."
"Section 1983 was originally enacted as § 1 of the Civil Rights
Act of 1871. The Act was enacted for the purpose of enforcing the
provisions of the Fourteenth Amendment."
Quern v. Jordan, 440 U. S. 332,
440 U. S. 354
(1979) (BRENNAN, J., concurring in the judgment);
see also
Carter, 409 U.S. at
409 U. S. 423.
("[Section] 1983 has its roots in § 1 of the Ku Klux Klan Act of
1871, Act of Apr. 20, 1871"). After the War Between the States,
race relations in the Southern States were troubled. The Ku Klux
Klan, organized by southern whites, commenced "a wave of murders
and assaults . . . against both blacks and Union sympathizers."
Id. at
409 U. S. 425.
Congress was worried "about the insecurity of life and property in
the South," and designed § 1 of the Act
"primarily in response to the unwillingness or inability of the
state governments to enforce their own laws against those
violating the civil rights of others."
Id. at
409 U. S.
425-426 (emphasis added). [
Footnote 7]
"The debates are replete with references to the
Page 495 U. S. 188
lawless conditions existing in the South in 1871. There was
available to Congress during these debates a report, nearly 600
pages in length, dealing with the activities of the Klan and the
inabilities of the state governments to cope with it. This report
was drawn on by many of the speakers"
(footnote omitted).
Monroe v. Pape, 365 U.
S. 167,
365 U. S. 174
(1961) (overruled in certain other respects by
Monell v. New
York City Dept. of Social Services, 436 U.
S. 658 (1978)).
Because Congress was directly concerned with this unrest in the
Southern States, it specifically focused on States in the
legislation aimed at solving the problem. "As initially enacted, §
1 of the 1871 Act applied only to action under color of the law of
any
State.' 17 Stat. 13." [Footnote 8] Carter, 409 U.S. at 409 U. S. 424,
n. 11. Persons acting under color of law of any Territory were not
included. Viewed against "the events and passions of the time,"
id. at 409 U. S. 425,
it is evident that Congress was not concerned with Territories when
it enacted the Civil Rights Act of 1871, but was concerned,
instead, with the "hundreds of outrages committed . . . through the
agency of this Ku Klux organization [that had not been] punished"
in the Southern States. Cong. Globe, 42d Cong., 1st Sess., 505
(1871) (remarks of Sen. Pratt). As to Congress' failure to include
persons acting under color of law of any Territory,
Page 495 U. S. 189
"[w]e can only conclude that this silence on the matter is
itself a significant indication of the legislative intent of § 1."
Quern, 440 U.S. at
440 U. S. 343.
The omission demonstrates that Congress did not mean to subject
Territories to liability under this statute.
Further, the remedy provided by § 1983 was designed to combat
the perceived evil.
"Congress recognized the need for original federal court
jurisdiction as a means to provide at least indirect federal
control over the unconstitutional acts of state officials."
Carter, 409 U.S. at
409 U. S.
428.
"'The United States courts are further above mere local
influence than the county courts; their judges can act with more
independence, cannot be put under terror, as local judges can;
their sympathies are not so nearly identified with those of the
vicinage. . . .'"
Ibid. (quoting Cong. Globe, 42d Cong., 1st Sess., 460
(1871) (remarks of Rep. Coburn)). Because the organization of the
judicial system of a Territory was unlike those of the States, it
would not have engendered such immediate concern.
"Under the organic acts, each territory had three justices
appointed by the president for four-year terms. Sitting together,
they constituted a supreme court; sitting separately, they acted as
district judges. In both capacities, they had jurisdiction over
cases arising under United States or territorial law."
E. Pomeroy, The Territories and the United States 1861-1890,
Studies in Colonial Administration 51 (1947). Thus, unlike the
state courts, over which the Federal Government had no control, the
territorial courts were created by acts of Congress, with judges
appointed by the President, and were under the general control of
the Federal Government.
C
Finally, the successive enactments of the statute, in context,
further reveal the lack of any intent on the part of Congress to
include Territories as persons. In 1871, the Act exposed to
liability "any person [acting] under color of any law . . . of any
State." Act of Apr. 20, 1871, § 1, 17 Stat. 13.
Page 495 U. S. 190
Such persons in the 1871 Act could not possibly have included a
Territory, because "Territories are not
States' within the
meaning of the Fourteenth Amendment," and a Territory could not
have been a "person [acting] under color of" any state law.
Carter, 409 U.S. at 409 U. S. 424,
n. 11. Any attempt to interpret "person" as including a "Territory"
would be too strained a reading of the statute, and would lead to a
far more "awkward" interpretation than what a majority of the Court
found significant in Will v. Michigan Dept. of State
Police, 491 U. S. 58,
491 U. S. 64
(1989) (to read § 1983 as saying that "`every person including a
State, who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects . . . '" would be "a decidedly awkward way of
expressing an intent to subject the States to liability").
This reading of the original statute is supported by its next
enactment. In 1874, the phrase "or Territory" was added to § 1,
without explanation, in the 1874 codification and revision of the
United States Statutes at Large. Rev.Stat. § 1979 (1874).
See
Carter, 409 U.S. at
409 U. S. 424,
n. 11. But while the 1874 amendment exposed to liability "[e]very
person [acting] under color of any [law] . . . of any . . .
Territory," it did not expose a Territory itself to liability. In
the same revision that added "Territory" to § 1, Congress amended §
2 of the Act of Feb. 25, 1871, 16 Stat. 431 (the "Dictionary Act"),
"which supplied rules of construction for all legislation."
Monell v. New York City Dept. of Social Services,
436 U. S. 658,
436 U. S. 719
(1978) (REHNQUIST, J., dissenting);
see also Will, 491
U.S. at
491 U. S. 78
(BRENNAN, J. dissenting). In 1871, § 2 of the Dictionary Act
defined "person" as including "bodies politic and corporate."
[
Footnote 9] The 1874
recodification omitted those three words and substituted
"partnerships and corporations." [
Footnote 10]
Page 495 U. S. 191
It is significant that, at the time Congress added "Territory"
to § 1983, so that a person acting under color of territorial law
could be liable under the statute, Congress clarified the
definition of those whose actions could give rise to § 1983
liability. Most significant is the asserted reason for doing
so:
"The reasons for the latter change [substituting 'partnerships
and corporations' for 'bodies politic and corporate'] are that
partnerships ought to be included; and that even if the phrase
'bodies politic' is precisely equivalent to 'corporations,' it is
redundant; but if, on the contrary, 'body politic' is somewhat
broader, and should be understood to include a government, such as
a State, while 'corporation' should be confined to an association
of natural persons on whom government has conferred continuous
succession, then the provision goes further than is convenient. It
requires the draughtsman, in the majority of cases of employing the
word 'person,' to take care that States, Territories, foreign
governments, &c., appear to be excluded."
1 Revision of the United States Statutes as Drafted 19
(1872).
As these comments make clear, at the time Congress first made it
possible for a person acting under color of territorial law to be
held liable, the very same Congress pointedly redefined the word
"person" to make it clear that a Territory would not be included.
[
Footnote 11] It is evident
that Congress did not
Page 495 U. S. 192
intend to encompass a Territory among those "persons" who could
be exposed to § 1983 liability.
"Just as '[w]e are not at liberty to seek ingenious analytical
instruments' to avoid giving a congressional enactment the broad
scope its language and origins may require,
United States v.
Price, 383 U.S. at
383 U. S. 801, so too are we
not at liberty to recast the statute to expand its application
beyond the limited reach Congress gave it."
Carter, 409 U.S. at
409 U. S.
432.
In conclusion, when we examine the confluence of § 1983's
language, its purpose, and its successive enactments, together with
the fact that Congress has defined "person" to exclude Territories,
it becomes clear that Congress did not intend to include
Territories as persons who would be liable under § 1983.
Petitioners concede, Brief for Petitioners 4, 50, and we agree,
that if Guam is not a person, neither are its officers acting in
their official capacity.
We hold that neither the Territory of Guam nor its officers
acting in their official capacities are "persons" under § 1983.
[
Footnote 12] The judgment
of the Court of Appeals is affirmed.
It is so ordered.
Page 495 U. S. 193
Justice KENNEDY took no part in the consideration or decision of
this case.
** Justice SCALIA does not join Part II-B of this opinion.
[
Footnote 1]
Title 42 U.S.C. § 1983 reads in full:
"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of 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 action at law, suit in equity, or other
proper proceeding for redress. For the purposes of this section,
any Act of Congress applicable exclusively to the District of
Columbia shall be considered a statute of the District of
Columbia."
Petitioners also sought damages under 42 U.S.C. §§ 1981, 1985,
and 1986.
[
Footnote 2]
Inasmuch as the Court of Appeals held that Guam is not a person
for purposes of § 1983, it did not decide whether Guam enjoyed
sovereign immunity under the Eleventh Amendment. 858 F.2d at 1372,
n. 2.
[
Footnote 3]
The Court of Appeals ruled that respondent police officers could
be sued under § 1983 in their individual capacities to the extent
they were not entitled to immunity. The court determined that the
police officers were not entitled to immunity from suit in their
individual capacities by virtue of § 3 of the Organic Act,
as
amended, 48 U.S.C. § 1421 A. 858 F.2d at 1373. In the court's
view, that provision applied only to suits against the Government
of Guam and, perhaps, suits against Government officers acting in
their official capacities.
Ibid. Nevertheless, the court
held that the defendant officers were entitled to invoke qualified
immunity under
Harlow v. Fitzgerald, 457 U.
S. 800 (1982). The Ninth Circuit therefore reversed the
District Court's dismissal of the action against the police
officers in their individual' capacities, and directed the District
Court partially to reinstate the complaint and to consider whether
the individual officers were entitled to qualified immunity. 858
F.2d at 1374.
[
Footnote 4]
See Frett v. Government of Virgin Islands, 839 F.2d 968
(CA3 1988) (Government of Virgin Islands is subject to same
liability under § 1983 as any other governmental entity).
See
also Fleming v. Department of Public Safety, Commonwealth of the
Northern Mariana Islands, 837 F.2d 401 (CA9),
cert.
denied, 488 U.S. 889 (1988), discussed by the Ninth Circuit in
the instant case, 858 F.2d at 1371, n. 1.
[
Footnote 5]
See A. Leibowitz, Defining Status: A Comprehensive
Analysis of United States Territorial Relations 313, 323
(1989).
[
Footnote 6]
See Leibowitz,
supra at 348.
[
Footnote 7]
The Ku Klux Klan Act grew out of a message sent to Congress by
President Grant on March 23, 1871. It said:
"A condition of affairs now exists in some States of the Union
rendering life and property insecure and the carrying of the mails
and the collection of the revenue dangerous. The proof that such a
condition of affairs exists in some localities is now before the
Senate. That the power to correct these evils is beyond the control
of State authorities I do not doubt; that the power of the
Executive of the United States, acting within the limits of
existing laws, is sufficient for present emergencies, is not
clear."
See Cong.Globe, 42d Cong., 1st Sess., 244.
See also
Monroe v. Pape, 365 U. S. 167,
365 U. S.
172-173 (1961).
[
Footnote 8]
The Act of Apr. 20, 1871, § 1, 17 Stat. 13, read:
"That any person who, under color of any law, statute,
ordinance, regulation, custom, or usage of any State, shall
subject, or cause to be subjected, any person within the
jurisdiction of the United States to the deprivation of any rights,
privileges, or immunities secured by the Constitution of the United
States, shall, any such law, statute, ordinance, regulation,
custom, or usage of the State to the contrary notwithstanding, be
liable to the party injured in any action at law, suit in equity,
or other proper proceeding for redress; such proceeding to be
prosecuted in the several district or circuit courts of the United
States. . . ."
[
Footnote 9]
"That in all acts hereafter passed . . . the word
person'
may extend and be applied to bodies politic and corporate. . . . "
16 Stat. 431 (1871).
[
Footnote 10]
"In determining the meaning of the revised statutes or of any
act or resolution of Congress passed subsequent to February
twenty-fifth, eighteen hundred and seventy-one, . . . the word
'person' may extend and be applied to partnerships and
corporations. . . ."
Rev.Stat. § 1 (1874). Because the words "or Territory" were
added in the very "revised statutes" to which the language in the
Dictionary Act refers, we conclude that the amended definition of
"person" is the definition to which we look in determining whether
a Territory is included in that definition.
[
Footnote 11]
This reasoning is fully consistent with the Court's decision in
Monell v. New York City Dept. of Social Services,
436 U. S. 658
(1978). There the Court held that a municipality could be a "person
[acting] under color of any law . . . of any State," Act of Apr.
20, 1871, § 1, 17 Stat. 13, and thus was exposed to liability under
the 1871 statute. In concluding that the 1871 Congress specifically
intended to subject municipalities to § 1983 liability, we relied,
among other things, on indications in the legislative history that
municipal liability was contemplated, on the general treatment of
corporations (including municipal corporations) as "persons," and
on the 1871 version of the Dictionary Act. 436 U.S. at
436 U. S.
686-689. As has been explained, the 1871 Congress had no
similar intent with respect to Territories, and, when it did
address Territories in 1874, Congress intended not to subject them
to liability. The 1874 revisions of the Dictionary Act, however,
must be considered in light of the previously and more specifically
expressed intent to subject municipalities to liability.
More recently, there have been at least two attempts in Congress
to amend § 1983 to include States and Territories within the
meaning of persons. The bills did not leave Committee.
See
Sagafi-Nejad, Proposed Amendments to Section 1983 Introduced in the
Senate, 27 St. Louis U.L.J. 373, 374, 376, n. 21 (1983).
[
Footnote 12]
This conclusion makes it unnecessary to consider Guam's claim of
immunity under the Eleventh Amendment.
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. [
Footnote
2/1] 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.
I
The Court's determination that "Congress did not intend to
include Territories as persons who would be liable under § 1983,"
ante at
495 U. S. 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
495 U. S. 187.
The Court's review, however, is incomplete. Our decision in
District of Columbia v. Carter, 409 U.
S. 418 (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
Page 495 U. S. 194
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
409 U. S.
429-430.
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
409 U. S. 430,
we noted that "[f]or practical reasons, however, effective federal
control over the activities of territorial officials was virtually
impossible."
Ibid. We explained that:
"'[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
409 U. S.
430-431, quoting
Glidden Co. v. Zdanok,
370 U. S. 530,
370 U. S. 546
(1962) (opinion of Harlan, J.). We also noted, contrary to the
Court's implication today,
see ante at
495 U. S. 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, 409 U.S. at
409 U. S. 431,
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, pp. 52-56
(1947) (same). We concluded
Page 495 U. S. 195
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
409 U. S. 431,
quoting E. Pomeroy,
supra, at 4;
see also Examining
Board v. Flores de Otero, 426 U. S. 572,
426 U. S. 596
(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. [
Footnote 2/2] 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
Page 495 U. S. 196
the Kansas-Nebraska Act of 1854 extended the principle to those
Territories as well. The resulting disputes within the Territories
between abolitionist and pro-slavery 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
[
Footnote 2/3] 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
Page 495 U. S. 197
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) ("the 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 slaveholding
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"). [
Footnote
2/4] 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.
Page 495 U. S. 198
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. [
Footnote 2/5] See Cong.Globe, 39th Cong.,
1st Sess. 2600-2602 (1866). The organic acts establishing
territorial governments were amended to provide that:
"there 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. 379-380 (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 [
Footnote 2/6] demonstrate
Page 495 U. S. 199
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, [
Footnote
2/7]
see Carter, 409 U.S. at
409 U. S. 424,
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
426 U. S.
582-583. 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,
445 U. S.
650-656 (1980);
Quern v. Jordan, 440 U.
S. 332,
440 U. S.
357-365 (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
495 U. S. 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
Page 495 U. S. 200
catch-all 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
495 U. S.
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
495 U. S.
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,
490 U. S. 554
(1989) quoting
Anderson v. Pacific Coast S.S. Co.,
225 U. S. 187,
225 U. S. 199
(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 a guide commencing the task of revision, and are in turn
to
Page 495 U. S. 201
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,
2 U. S. 447
(1793) (Iredell, J.). [
Footnote
2/8] A Territory thus would
Page 495 U. S. 202
qualify as a "person" even under the 1874 recodification of the
Dictionary Act.
II
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,
491 U. S. 66-67
(1989);
see also Quern v. Jordan, 440 U.
S. 332,
440 U. S.
341-343 (1979). 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 alter the Federal-State
balance in that respect."
491 U.S. at
491 U. S.
66.
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.). [
Footnote 2/9] Even if the Eleventh
Page 495 U. S. 203
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,
473 U. S.
258-302 (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. Const., 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
Page 495 U. S. 204
enjoys nullified."
Brief for Government of the Virgin Islands as
Amicus
Curiae 8. [
Footnote
2/10]
"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,
206 U. S. 354
(1907). Congress has "entire dominion and sovereignty" and "full
legislative power" over the Territories.
Simms v. Simms,
175 U. S. 162,
175 U. S. 168
(1899);
see also Binns v. United States, 194 U.
S. 486,
194 U. S. 491
(1904);
Late Corp. of the Church of Jesus Christ of Latterday
Saints v. United States, 136 U. S. 1,
136 U. S. 42-43,
45 (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,
101 U. S. 133
(1880);
See also Sere v. Pitot,
6 Cranch 332,
10 U. S.
336-337 (1810);
American Ins. Co. v. 356 Bales
of Cotton, 1 Pet. 511,
26 U. S.
542-543 (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,
494 U. S.
268-269
Page 495 U. S. 205
(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,
205 U. S. 353
(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. 622,
445 U. S.
647-648 and n. 30 (1980). 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,
440 U. S. 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,
302 U. S. 262,
302 U. S. 264
(1937);
Porto Rico v. Rosaly, 227 U.
S. 270,
227 U. S.
273-274 (1913);
Kawananakoa, 205 U.S. at
205 U. S.
353-354, a Territory, particularly an unincorporated
Territory such as Guam that is not destined for Statehood,
see
Rosaly, supra, 227 U.S. at
227 U. S. 274,
can have no immunity against a claim like the one here -- a suit in
federal court based on federal law. [
Footnote 2/11]
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
Page 495 U. S. 206
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.
[
Footnote 2/1]
42 U.S.C. § 1983 (1982 ed.) provides:
"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of 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 action at law, suit in equity, or other
proper proceeding for redress. For the purposes of this section,
any Act of Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the District of
Columbia."
[
Footnote 2/2]
The 1820 Missouri Compromise established that Territories would
be admitted to Statehood in pairs, one slave and one free, and that
slavery was forever to be prohibited in that part of the Louisiana
Purchase north of the southern boundary of Missouri (36� 30').
Following this pattern, in 1837, Arkansas and Michigan were
admitted as a slave and free State, respectively. In 1845, Florida
from the South and, in 1846, Iowa from the Northwest became States.
Texas entered the Union as a slave State in 1845, and California as
a free State in 1850. Thereafter, balance was impossible: Minnesota
in 1858 and Oregon in 1859 were both admitted as free States.
[
Footnote 2/3]
See, e.g., E. Pomeroy, The Territories and the United
States 1861-1890, p. 107 (1947) ("
A State signifies law and
order, . . . a Territory, violence and disorder'"), quoting the
Colorado Springs Gazette, June 10, 1876.
[
Footnote 2/4]
Critics of the proposal were quick to point out that "th[e] bill
applie[d] to the punishment of offenses in all the country," and
that the type of "offenses of a mob character" at which § 1983 was
directed were
"by no means confined to the South, but [also extended] to the
North and West, where undetected and unprincipled perpetrators of
crimes, both singly and in couples, or in larger numbers, ha[d] a
remarkable ingenuity in their dark and criminal transactions."
Cong.Globe, 42d Cong., 1st Sess., 416 (1871) (remarks of Rep.
Biggs) (also discussing the possibility that the Mormons in Utah,
then a Territory, would be liable under the Civil Rights Act for
their actions because they were in "a standing state of
insurrection against fundamental principles of public policy, if
not of law").
[
Footnote 2/5]
The Fifteenth Amendment, prohibiting racial discrimination in
suffrage, was not ratified until 1870.
[
Footnote 2/6]
See, e.g., Cong.Globe, 39th Cong., 2d Sess., 452 (1867)
(remarks of Rep. Dawes) ("[N]ever in the history of territorial
governments have the rights of the citizen, without distinction of
race or color, been so guarant[eed] and protected, . . . as they
are at this hour in [the Territory of Colorado and the Territory of
Nebraska]. The civil rights bill, which is above any territorial
legislation or any adverse judicial decision in a Territory where
our power is supreme, has guarantied to him beyond peril every
civil right known under the Constitution of the United States, . .
. so that every citizen of the United States, be he high or be he
low, be he white or be he black, of whatsoever name or nation or
color or clime, today in the Territory of Nebraska enjoys, beyond
the power of local laws or adverse judicial decisions, every right,
civil or political, known under the Constitution of the United
States").
[
Footnote 2/7]
The absence of fanfare surrounding the 1874 amendment suggests
that the amendment was perceived as a technical correction that did
not alter the statute's intended meaning, bolstering the conclusion
that Congress had meant to include Territories all along.
[
Footnote 2/8]
At common law, a "corporation" was an "artificial perso[n]
endowed with the legal capacity of perpetual succession" consisting
either of a single individual (termed a "corporation sole") or of a
collection of several individuals (a "corporation aggregate"). 3 H.
Stephen, Commentaries on the Laws of England 166, 168 (1st Am.
Ed.1845). The sovereign was considered a corporation.
See
id. at 170;
see also 1 W. Blackstone, Commentaries
*467. Under the definitions supplied by contemporary law
dictionaries, Territories would have been classified as
"corporations" (and hence as "persons") at the time that § 1983 was
enacted and the Dictionary Act recodified.
See W.
Anderson, A Dictionary of Law 261 (1893) ("All corporations were
originally modeled upon a state or nation"); J. Bouvier, 1 A Law
Dictionary Adapted to the Constitution and Laws of the United
States of America 318-319 (11th ed. 1866) ("In this extensive
sense, the United States may be termed a corporation. . . . ");
Van Brocklin v. Tennessee, 117 U.
S. 151,
117 U. S. 154
(1886) ("
The United States is a . . . great corporation . . .
ordained and established by the American people. . . . '") (quoting
United States v. Maurice, 26 F. Cas. 1211, 1216 (No.
15,747) (CC Va.1823) (Marshall, C.J.)); Cotton v.
United States, 11 How. 229, 52 U. S. 231
(1851) (United States is "a corporation"). See generally
Trustees of Dartmouth College v. Woodward, 4 Wheat. 518,
(1819) (explaining history of term "corporation") [argument of
counsel - omitted in electronic version].
[
Footnote 2/9]
The Organic Act of Guam, enacted in 1950, established that the
government of Guam "shall have power to sue" under its own name.
See § 1421a. The Organic Act originally was silent
concerning the Territory's ability to be sued. In 1959, Congress
amended the Organic Act to provide that the government,
"with the consent of the legislature evidenced by enacted law,
may be sued upon any contract entered into with respect to, or any
tort committed incident to, the exercise by the government of Guam
of any of its lawful powers."
Ibid. Respondents contend that the 1959 amendment
provides the only exceptions to an otherwise universally applicable
sovereign immunity bestowed by the Organic Act itself.
I disagree. The limited authorization for legislative waiver of
sovereign immunity refers solely to claims arising under
territorial law. The scheme is therefore fully consistent with the
understanding that the 1950 Act granted Guam
only immunity
from suit in its own courts for violations of its own law. The
immunity conferred by the 1950 Act corresponded to the common law
notion of sovereign immunity.
See Kawananakoa v.
Polyblank, 205 U. S. 349,
205 U. S. 353
(1907). In 1959, Congress carved out a potential waiver of some of
that immunity, but nowhere in either law did Congress suggest that
it intended Guam to be immune from suit in federal court under
federal law.
See H.R.Rep. No. 214, 86th Cong., 1st Sess.,
1-3 (1959); S.Rep. No. 969, 86th Cong., 1st Sess., 1-3 (1959),
U.S.Code Cong. & Admin.News 1959, p. 2659; H.R.Rep. No. 1677,
81st Cong., 2d Sess., 12 (1950); S.Rep. No. 2109, 81st Cong., 2d
Sess., 13 (1950), U.S.Code Cong. Serv.1950, p. 2840.
[
Footnote 2/10]
Congressional supremacy, however, does not support the Court of
Appeals' conclusion that Guam is outside the coverage of § 1983
because it is an instrumentality of the Federal Government. Under
the Court of Appeals' approach, even a natural person acting under
color of Guam law would be beyond the scope of § 1983 -- a result
flatly inconsistent with any view of the statute.
See Examining
Board of Engineers, Architects and Surveyors v. Flores de
Otero, 426 U. S. 572,
426 U. S.
582-584 (1916) (referring to the availability of § 1983
actions against persons "acting under color of territorial law"). I
read the majority opinion today as rejecting the Court of Appeals'
analysis.
See also e.g., House Committee on Interior and
Insular Affairs, Report of the Commission on the Application of
Federal Laws to Guam H.R.Doc. No. 212, 82d Cong., 1st Sess., 15
(1951) (listing 42 U.S.C. § 1983, then codified at 8 U.S.C. § 43
(1946), as among the statutes of the United States applicable to
Guam).
[
Footnote 2/11]
Cases cited by respondents as evidence of territorial immunity,
such as
Wisconsin v. Doty, 1 Wis. 396, 407 (1844);
Langford v. King, 1 Mont. 33, 38 (1868);
Beachy v.
Lamkin, 1 Idaho 50, 52 (1866);
Fisk v. Cuttabert, 2
Mont. 593, 598 (1877), are irrelevant, because they involve claims
asserted under territorial, rather than federal, law.