ALEX NGIRAINGAS, ET AL., PETITIONERS V. FRANCISCO Q. SANCHEZ, ET AL. No. 88-1281 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States As Amicus Curiae This brief is filed in response to the Court's order inviting the Solicitor General to express the views of the United States in this case. TABLE OF CONTENTS Question Presented Statutory provisions involved Statement Discussion Conclusion STATUTORY PROVISIONS INVOLVED 1. 42 U.S.C. 1983 provides as follows: 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. 2. Section 2 of the Organic Act of Guam, ch. 512, 64 Stat. 384 (codified at 48 U.S.C. 1421) provides as follows: The territory ceded to the United States in accordance with the provisions of the Treaty of Peace between the United States and Spain, signed at Paris, December 10, 1898, and proclaimed April 11, 1899, and known as the island of Guam in the Marianas Islands, shall continue to be known as Guam. 3. Section 3 of the Organic Act of Guam, ch. 512, 64 Stat. 384 (codified at 48 U.S.C. 1421a) provides in part as follows: Guam is declared to be an unincorporated territory of the United States * * *. The government of Guam shall have the powers set forth in this chapter, shall have the power to sue by such name, and, 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. QUESTION PRESENTED Whether the government of Guam or its officers, acting in their official capacities, are subject to suit under 42 U.S.C. 1983. STATEMENT 1. Petitioners, various residents of the Territory of Guam, brought this action under 42 U.S.C. 1983 against the government of Guam, the Guam Police Department, the director of the Guam Police Department in her official capacity, and various Guam police officers in their official and individual capacities. Pet. App. A2. The complaint alleged that the respondent police officers arrested petitioners and took them to Guam police headquarters, where petitioners were assaulted and forced against their will to sign "Rights Waiver" forms and to give incriminating statements. The complaint also alleged that these actions were "taken pursuant to a de facto policy of the government of Guam," Third Amended Complaint para. 53, at 13 (filed June 4, 1986), physically to harass and intimidate persons accused of crime, a policy that was allegedly "known to and encouraged by" the government. Id. para. 54, at 14. Petitioners claimed that these actions violated, inter alia, various rights protected by the Fifth and Fourteenth Amendments to the Constitution and various federal laws. They sought compensatory and punitive damages totaling $100 million. Id. at 17; Pet. App. A2. 2. The district court of Guam granted respondents' motion to dismiss. Pet. App. A1-A13. The court held that, by virtue of the Organic Act of Guam, 48 U.S.C. 1421 et seq., the government of Guam possesses sovereign immunity from suit, and that neither Congress nor the Guam legislature has waived that immunity with respect to suits brought under Section 1983. Pet. App. A4-A5. The court held that sovereign immunity also barred petitioners' action against the individual defendants in their official capacities, because any judgment against them "would expend itself on the public treasury." Id. at A5. /1/ 3. Petitioners appealed, and the court of appeals affirmed in part and reversed in part. Pet. App. A35-A51. /2/ a. The court held that the government of Guam could not be sued under Section 1983 because Guam is an instrumentality of the federal government similar to an administrative agency, and therefore is not a "person" within the meaning of 42 U.S.C. 1983. Pet. App. A40-A42. For the same reason, the court held that the Guam Police Department is not a "person" under Section 1983. Pet. App. A42. Finally, the court held that Guam police officials may not be sued in their official capacities under Section 1983. The court reasoned that a judgment against those respondents in their official capacities would expend itself against the public treasury and therefore was, in effect, a suit against the government of Guam itself. Pet. App. A43-A44. Because the court of appeals held that Guam is not a "person" for purposes of Section 1983, it did not decide whether Guam enjoyed sovereign immunity from suit under that statute. Pet. App. A25 n.2. b. The court held that respondent police officers could be sued under Section 1983 in their individual capacities to the extent they were not entitled to immunity. Pet. App. A44-A48. In the court's view, respondent officers were not entitled to immunity from suit in their individual capacities by virtue of the Organic Act of Guam, 48 U.S.C. 1421a, because that provision applied only to suits against the government of Guam (and perhaps to government officials acting in their official capacities). Pet. App. A45-A46. At the same time, the court held that the respondent officers were entitled to invoke qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800 (1982), for their actions. Pet. App. A46-A48. Because the district court had not addressed the merits of respondents' qualified immunity claims, the court of appeals ordered the district court on remand to determine whether the defendants were entitled to immunity on that ground. Id. at A48. /3/ DISCUSSION The question in this case is whether, as a "Territory" within the meaning of Section 1983, Guam is a "person" subject to suit under that provision. The court below held that it was not, reasoning that it was excluded from suit because of its status as an "instrumentality" of the federal government. Pet. App. A42. Although we have difficulty with that rationale, we believe the court's conclusion -- that Guam is not a "person" subject to suit under Section 1983 -- is correct, and that this view is strengthened by this Court's decision last Term in Will v. Michigan Dep't of State Police, 109 S. Ct. 2304 (1989). As a result of that decision, there is not presently any conflict among the circuits warranting this Court's review. We therefore submit that the petition for a writ of certiorari should be denied. 1. Section 1983 provides a remedy for an individual whose rights under federal law have been violated by any "person" who acts "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory." Petitioners contend that the government of Guam and the Guam Police Department are each a "person" within the meaning of Section 1983, and that Guam itself is a "Territory" under that statute. Petitioners therefore argue that the courts below erred in dismissing their Section 1983 claims against the government of Guam, the Guam Police Department, and its officers. We readily agree that Guam is a "Territory" for purposes of Section 1983. /4/ But that conclusion does not resolve this case, because the government of Guam cannot be sued under Section 1983 unless it is a "person" within the meaning of that law. The court below held that it was not, on the ground that the plenary control over Guam exercised by the federal government meant that "Guam, like the federal government, should not be held liable on the same terms as other entities." Pet. App. A41. As a "creature of the federal government," in other words, Guam was not one of the "bodies politic" intended to be included in that statute. Ibid. Although we have difficulty with the Ninth Circuit's reasoning, /5/ we agree with its conclusion that Guam is not a "person" within the meaning of Section 1983. This conclusion is strongly supported by this Court's recent decision in Will v. Michigan Dep't of State Police, supra, holding that a State is not a "person" within the meaning of that law. /6/ Will is not squarely controlling here, however, for several reasons. Section 1983 refers separately to States and Territories. Moreover, a Territory is not a State for purposes of the Fourteenth Amendment, which Section 1983 was designed to enforce. District of Columbia v. Carter, 409 U.S. 418, 423-425 & n.11 (1973). Finally, Will not only drew on the Eleventh Amendment as part of its reasoning, but also limited its holding to "States or governmental entities that are considered 'arms of the State' for Eleventh Amendment purposes," 109 S. Ct. at 2311, and the Eleventh Amendment does not apply to Guam, see 48 U.S.C. 1421b(u) (omitting the Eleventh Amendment from various constitutional amendments made applicable to Guam). That being said, the Will decision nonetheless supports the conclusion below in several respects. a. The text of Section 1983 uses the phrase "State or Territory" and implies that each entity has the same legal status as the other for purposes of that law. Because Will held that a "State" is not a "person" under Section 1983, it follows, as a straightforward matter of statutory construction, that a "Territory" is likewise not a "person" under that law. The contrary reading of Section 1983 would lead to the same interpretive oddity that Will discerned in construing the term "person" to include a "State." It is just as awkward to describe a "Territory" as acting "under color of" its own law as it is to describe a State in those terms. Compare Will, 109 S. Ct. at 2308. Thus, it is equally unlikely that Congress intended by this wording to impose liability on the territorial governments. And that is particularly true because, as explained below, holding Territories financially liable for the acts of their officers was no less novel in the 1870s than rendering States liable for such conduct. Compare Will, 109 S. Ct. at 2308. b. Will acknowledged this Court's consistent holdings that, in enacting Section 1983, "Congress did not intend to override well-established immunities or defenses under the common law." 109 S. Ct. at 2309 (collecting cases). That principle is directly applicable here, because this Court has held that Territories are entitled to invoke sovereign immunity for much the same reasons that the federal government and the States may do so. Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907); /7/ Porto Rico v. Rosaly, 227 U.S. 270, 273 (1913); Porto Rico v. Emmanuel, 235 U.S. 251, 257 (1914). Moreover, in 1874, when Section 1983 was amended to include Territories, the territorial courts had held that Territories, like States, are immune from suit absent their consent. Wisconsin v. Doty, 1 Pin. 396, 407 (Wis. 1844); /8/ Langford v. King, 1 Mont. 33, 38 (1868). /9/ See Beachy v. Lamkin, 1 Idaho 50, 52 (1866). /10/ See also Fisk v. Cuthbert, 2 Mont. 593, 598 (1877). Indeed, in Porto Rico v. Rosaly, 227 U.S. at 274, the Court noted that "the incorporated Territories have always been held to possess an immunity from suit." /11/ Thus, the state sovereign immunity principles that formed the background to the adoption of the original version of Section 1983 in 1871 have strong parallels in the case of a Territory. c. The legislative history of Section 1983 does not indicate that Congress sought to render territorial governments liable for the unlawful actions of their officers. Section 1983 was originally enacted as Section 1 of the Ku Klux Klan Act of 1871, ch. 22, 17 Stat. 13, which applied only to action taken under color of the law of any "State." The 1871 Act therefore did not apply to Territories at all. The phrase "or Territory" was added to the 1871 Act without explanation in the 1874 codification and revision of the Statutes at Large. Rev. Stat. Section 1979 (1874). See Examining Board v. Flores de Otero, 426 U.S. 572, 582 (1976); Carter, 409 U.S. at 424-425 n.11; pages 5-6 note 4, supra. Given the background of territorial sovereign immunity against which the 1874 amendment was adopted, that silence is as significant in this context as it was in Will, 109 S. Ct. at 2310 (noting that the legislative history of Section 1983 does not indicate an intent to abrogate the States' Eleventh Amendment immunity). Moreover, it would have been anomalous for a Reconstruction Congress to have intended to render federal Territories liable when the States (including, of course, the Southern States) were not. Accordingly, nothing in the 1874 amendment to the 1871 Act suggests an intent to make Territories liable under that law, or to treat Territories differently from States for liability purposes. d. Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978), held that a municipality is a "person" under Section 1983. In so ruling, the Court relied, 436 U.S. at 688-689 & nn. 51 & 53, on the Dictionary Act, Act of Feb. 25, 1871, ch. 71, Section 2, 16 Stat. 431, which stated that "in all acts hereafter passed * * * the word 'person' (extends to) bodies politic and corporate." Will ruled that the Dictionary Act definition of "person" did not include the States, because in the nineteenth century the term "public corporation" was understood to refer to municipal corporations and their equivalent local government units (towns, cities, and counties), rather than to the States, which were sovereign entities. 109 S. Ct. at 2310-2311. That interpretation of the Dictionary Act is also applicable here, since in the nineteenth century a Territory was also deemed to be a sovereign entity, even though it was subject to direct congressional regulation under the Territories Clause of the Constitution, Art. IV, Section 3, Cl. 2. Wisconsin v. Doty, 1 Pin. at 407; Langford v. King, 1 Mont. at 38. See Kawananakoa v. Polyblank, 205 U.S. at 353-354. Thus, for this purpose, too, a Territory is more analogous to a State than to a municipality. What is more, as Justice Brennan noted in his dissent in Will, 109 S. Ct. at 2317, in 1874, as part of the same revision and codification of federal law that included Territories within the scope of Section 1983, Congress repealed the Dictionary Act's definition of "person" as including bodies politic and corporate. Accordingly, the Dictionary Act supplies no ground for treating Section 1983 as an abrogation of the Territories' inherent sovereign immunity. e. Congress has legislated for the Territory of Guam with the foregoing sovereign immunity principles in mind. The Organic Act of Guam, enacted by Congress in 1950, did not expressly authorize suit against the government of Guam, nor did it empower Guam to waive its sovereign immunity. /12/ The failure to include such a provision in the Organic Act, Congress believed, made it "doubtful * * * whether the Legislature of Guam could authorize such suits to be brought." H.R. Rep. No. 214, 86th Cong., 1st Sess. 1 (1959); S. Rep. No. 969, 86th Cong., 1st Sess. 1 (1959). To remedy this situation, Congress in 1959 passed 48 U.S.C. 1421a to "permit the government of Guam, with the consent of its legislature, to be sued" in tort or contract with respect to the exercise by Guam of any of its lawful powers. H.R. Rep. No. 214, supra, at 1; S. Rep. No. 969, supra, at 1-2. As explained in a letter from the Assistant Secretary of the Interior incorporated in the House and Senate Reports accompanying the amendment, the amendment "enables the Legislature of Guam to waive the sovereign immunity which was conferred upon the government of Guam by the Congress through enactment of the Guam Organic Act when, in the legislature's opinion, the best interests of both the people and government of Guam would be served by allowing such an action to be brought." H.R. Rep. No. 214, supra, at 2 (emphasis added); S. Rep. No. 969, supra, at 2 (same). Thus, the 1959 measure confirms Congress's understanding that Territories like Guam, and the government of Guam in particular, may rely on the doctrine of sovereign immunity to protect themselves from suit without their consent. /13/ For all these reasons, we believe the judgment below was correct: a Territory, like a State, is not a "person" under Section 1983. /14/ 2. If Guam, like a State, is not a "person" for purposes of Section 1983, Will also resolves the question whether officers of Guam can be sued for damages in their official capacity. What the Court held in Will, 109 S. Ct. at 2311 (citation omitted), is fully applicable to territorial officers: "Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit the State itself." Petitioners therefore cannot "circumvent congressional intent by a mere pleading device," ibid. (footnote omitted), of suing the officers of Guam in their official capacity. 3. There is currently no conflict among the circuits warranting this Court's review. To be sure, the Third Circuit in Frett v. Government of Virgin Islands, 839 F.2d 968, 977 (1988), concluded that the Territory of the Virgin Islands was a "person" within the meaning of Section 1983. But that case was decided before this Court's decision in Will, and the Third Circuit assumed in reaching its conclusion that, after Monell, a State was a "person" under Section 1983. 839 F.2d at 977. Since Will has rendered this assumption incorrect, it is by no means clear that the Third Circuit would reach the same result today. Thus, even assuming that Guam and the Virgin Islands are indistinguishable for this purpose, no present conflict appears to exist. For the same reason, there is no present conflict between the decision below and the Ninth Circuit's earlier decision in Fleming v. Department of Public Safety, 837 F.2d 401, cert. denied, 109 S. Ct. 222 (1988). /15/ In that case, the Ninth Circuit, relying on this Court's decisions in Monell and Quern v. Jordan, 440 U.S. 332 (1979) (Section 1983 does not abrogate the States' Eleventh Amendment immunity), held that the Commonwealth of the Northern Marianas is a "person" under Section 1983, for two reasons. First, the court concluded that "governmental entities are persons for purposes of Section 1983, but * * * those entities protected by the eleventh amendment remain immune from suits brought in federal court without their consent." 837 F.2d at 406; see also id. at 406-407. Second, the court held that, even if a State were not a "person" under Section 1983, the Commonwealth of the Marianas is a "person," "because the argument that a state is not a person is premised exclusively upon the fact that states enjoy eleventh amendment immunity." 837 F.2d at 407 n.7 (emphasis added), citing Quern, 440 U.S. at 343. This Court's subsequent decision in Will, however, shows that both of those conclusions are in error. While the Court in Will drew on the Eleventh Amendment in concluding that a State is not a person for purposes of Section 1983, the Court did not in so ruling rely "exclusively" on the Eleventh Amendment. See pages 7-8 note 6, supra. Thus, the Ninth Circuit may well reconsider its reasoning in Fleming in light of this Court's decision in Will. /16/ 4. Finally, the question presented is not one that has arisen with such frequency, nor is it otherwise of such clear public importance, that review by this Court is warranted in the absence of a conflict among the circuits. In the past, the question whether a territorial government or its officers can be sued under Section 1983 has arisen in only a small number of cases. Moreover, it is an issue that, as a simple matter of geography, is likely to arise in the future only in a small number of circuits, such as the First, Third, or Ninth. In light of this Court's recent decision in Will, we see no need for the Court to consider the narrow question presented by this case unless and until the courts of appeals are unable to agree on Will's effect on that question. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART E. SCHIFFER Acting Assistant Attorney General DAVID L. SHAPIRO Deputy Solicitor General PAUL J. LARKIN, JR. Assistant to the Solicitor General BARBARA L. HERWIG MICHAEL E. ROBINSON Attorneys JULY 1989 /1/ The court dismissed the Section 1983 claims against the respondent police officers in their individual capacities on the ground that the suits were barred by the statute of limitations. Pet. App. A6-A9. The court also dismissed without prejudice petitioners' pendent claims based on Guam tort law. Id. at A9-A11. /2/ The court of appeals' initial opinion is reprinted at Pet. App. A17-A34. The court of appeals' revised opinion is reprinted in the petition appendix, but the pages are not numbered. We will refer to the court's revised opinion as if it were sequentially numbered from A35-A51. /3/ The court also held that petitioners' claims against the respondent police officers in their individual capacities were not barred on statute of limitations grounds. Pet. App. A48-A50. Because the court of appeals reinstated petitioners' Section 1983 claims against those respondents, the court also reversed the district court's dismissal of the pendent Guam law tort claims as to those respondents. Id. at A50. The court of appeals left to the district court on remand the question whether to exercise pendent jurisdiction over the Guam law tort claims as to the remaining defendants. Ibid. /4/ The text of 42 U.S.C. 1983 does not define the meaning of the term "Territory," and the legislative history of that law is not illuminating. Section 1983 stems from Section 1 of the Ku Klux Klan Act of 1871, ch. 22, 17 Stat. 13, which applied only to action taken under the color of law of any "State." The accompanying phrase "or Territory" was added to the 1871 Act without explanation in the 1874 codification and revision of the Statutes at Large, Rev. Stat. Section 1979. Examining Board v. Flores de Otero, 426 U.S. 572, 582 (1976); District of Columbia v. Carter, 409 U.S. 418, 424 n.11 (1973). Moreover, Congress could not have had Guam in mind when the Statutes at Large were adopted in 1874, since Guam did not become an American possession until it was ceded by Spain to the United States in 1898 in the Treaty of Paris. See the Organic Act of Guam, ch. 512, Section 2, 64 Stat. 384 (codified at 48 U.S.C. 1421). Nonetheless, we believe 42 U.S.C. 1983 is clearly applicable in Guam. Because a "Territory" is not a "State" within the meaning of the Fourteenth Amendment, the phrase "or Territory" was "presumably" added to Section 1983 as "an exercise of Congress' power to regulate the territories under Art. IV, Section 3, Cl. 2," Carter, 409 U.S. at 425 n.11, in order "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." Examining Board, 426 U.S. at 582-583 (footnote omitted). Guam qualifies as a "Territory" within the meaning of that law. Although Guam became a United States possession in 1898, 48 U.S.C. 1421, Congress enacted no legislation concerning the island until it passed the Organic Act of Guam in 1950 (codified as amended at 48 U.S.C. 1421-1424 (1982 & Supp. IV 1986)). See generally Liebowitz, The Applicability of Federal Law to Guam, 16 Va. J. Int'l L. 21, 21 (1975). The Guam Organic Act declares Guam to be an "unincorporated territory," and establishes its government with executive, legislative, and judicial branches. 48 U.S.C. 1421a. The Ninth Circuit has applied Section 1983 to Guam in the past. Bunyan v. Camacho, 770 F.2d 773 (1985) (applying Section 1983 without addressing the question whether Guam is a "Territory"), cert. denied, 477 U.S. 903 (1986). See Fleming v. Department of Public Safety, 837 F.2d 401, 404-405 & n.2 (construing Bunyan as having held that Section 1983 applies to Guam), cert. denied, 109 S. Ct. 222 (1988). See also House Comm. 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), among the statutes of the United States that are applicable to Guam). /5/ The Ninth Circuit relied on its earlier decision in Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1289 (1985), cert. denied, 475 U.S. 1081 (1986), which characterized Guam as a federal instrumentality for purposes of the federal antitrust laws. Pet. App. A41. The question in this case, however, involves a different law, and whether Guam is a person under that law should be considered in light of the text, purposes, and legislative history of that different statute. Cf. Carter, 409 U.S. at 420. Congress's decision in 1874 to add the Territories to the scope of Section 1983 indicates that Congress intended to treat them not as part of the federal government for purposes of this law, but in the same manner as the States. Thus, it seems more appropriate to analogize Territories to the States than to the federal government when determining their suability. Nor do we believe that this question should turn on the degree of independence that may be afforded to a particular Territory by its organic legislation. /6/ The Court in Will reasoned as follows: First, if a State were a "person," the wording of the 1871 Act (which refers to a person acting "under color of" state law) would be "a decidedly awkward way of expressing an intent to subject the States to liability." Will, 109 S. Ct. at 2308. Thus, the statute provides no reason to depart from the "often-expressed understanding that '* * * the term "person" does not include the sovereign.'" Ibid. (citations omitted). This awkwardness is especially significant because the liability created by the Act was novel. Ibid. Second, the text of Section 1983 falls far short of the clarity necessary to satisfy the clear statement rule articulated in Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985) (a case involving the Eleventh Amendment), and similar cases affecting state interests and the federal-state balance. Will, 109 S. Ct. at 2308-2309. Third, since one purpose of Section 1983 was to make a federal forum available for plaintiffs, and since Section 1983 did not abrogate the States' Eleventh Amendment immunity, Quern v. Jordan, 440 U.S. 332 (1979), it appears that Congress did not intend to provide a remedy against the States that was not available in federal court. Will, 109 S. Ct. at 2309. Fourth, Section 1983 does not override well-established common law immunities or defenses, and sovereign immunity was a familiar principle at common law. Will, 109 S. Ct. at 2309. Fifth, nothing in the legislative history of Section 1983 suggests that Congress intended to bring the States within the scope of that Section's coverage. Will, 109 S. Ct. at 2309-2310. Sixth, the Dictionary Act, Act of Feb. 25, 1871, ch. 71, Section 2, 16 Stat. 431, which provided in 1871 that "in all acts hereafter passed * * * the word 'person' (extends to) bodies politic and corporate," referred to such public corporations as municipalities, not to the States. Will, 109 S. Ct. at 2310-2311. Finally, the holding of Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978), that municipalities are "persons" under Section 1983, is not controlling, because municipalities are not considered part of the State for Eleventh Amendment purposes. Will, 109 S. Ct. at 2311. /7/ This Court's reasoning in Kawananakoa parallels the reasons given by the territorial courts why Territories may invoke sovereign immunity, see Wisconsin v. Doty, 1 Pin. 396, 407 (Wis. 1844); Langford v. King, 1 Mont. 33, 38 (1868), as well as the reasons given by this Court why the States cannot be sued without their consent, see Beers v. Arkansas, 61 U.S. (20 How.) 527, 529 (1857). As Justice Holmes wrote for the Court in Kawananakoa v. Polyblank, 205 U.S. at 353-354 (citations omitted): Some doubts have been expressed as to the source of the immunity of a sovereign power from suit without its own permission, but the answer has been public property since before the days of Hobbes. A 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. * * * As the ground is thus logical and practical, the doctrine is not confined to powers that are sovereign in the full sense of juridicial theory, but naturally is extended to those that in actual administration originate and change at their will the law of contract and property, from which persons within the jurisdiction derive their rights. A suit presupposes that the defendants are subject to the law invoked. Of course it cannot be maintained unless they are so. But that is not the case with a territory of of the United States, because the Territory itself is the fountain from which rights ordinarily flow. It is true that Congress might intervene, just as in the case of a State the Constitution does, and the power that can alter the Constitution might. But the rights that exist are not created by Congress or the Constitution, except to the extent of certain limitations of power. The District of Columbia is different, because there the body of private rights is created and controlled by Congress and not by a legislature of the District. But for the Territory of Hawaii it is enough to refer to the organic act. /8/ "For all necessary purposes of government, Wisconsin is as a sovereignty, and should be entitled to the same immunities. It is a territory of the United States, and is considered thereby a part of the United States or immediately connected therewith. For these reasons we come to the conclusion that, the Territory of Wisconsin cannot be sued in the courts of the Territory in the absence of express authority of law for that purpose." Wisconsin v. Doty, 1 Pinn. at 407. /9/ "Montana Territory is a government created, it is true, by a law of Congress. Yet that law gives it very extensive powers. The reason of the law, which declares that no government can be sued without its consent, applies to this territorial government as well as to any other government." Langford v. King, 1 Mont. at 38. /10/ "In no event could this court render a judgment against the territory for costs. We have no means of enforcing it, there being no process by which it could be made effective." Beachy v. Lamkin, 1 Idaho at 52. /11/ In using the term "incorporated Territories," Rosaly referred to the two-part classification scheme developed by this Court in a series of cases decided at the turn of the century that has come to be known as the Insular Cases, e.g., De Lima v. Bidwell, 182 U.S. 1 (1901); Dooley v. United States, 182 U.S. 222 (1901); Armstrong v. United States, 182 U.S. 243 (1901); Downes v. Bidwell, 182 U.S. 244 (1901). "Incorporated Territories" are Territories destined for statehood from the time of their acquisition (such as Wisconsin and Montana), while "unincorporated Territories" are Territories that are not acquired in anticipation of statehood. Examining Board, 426 U.S. at 599 n.30. Guam fits into the latter category, because Guam is expressly defined by Section 3 of the Organic Act of Guam, ch. 512, 64 Stat. 384 (codified at 48 U.S.C. 1421a) as an "unincorporated territory." That distinction, however, is immaterial in this case. The difference between incorporated and unincorporated territories did not exist in 1874, and Congress could not have had in mind a distinction this Court did not announce until a quarter century later. The relevant question is the state of the law in 1874, and the law then was that all Territories could invoke sovereign immunity. /12/ Section 3 of the Organic Act of Guam originally provided that "(t)he government of Guam shall have the powers set forth in this chapter and shall have power to sue by such name." 64 Stat. 384, 48 U.S.C. 1421a (1958). The Organic Act did not also provide that the government of Guam could itself be sued. /13/ Neither the text of that law nor its legislative history specifically addresses the question whether Guam should be immune from constitutional torts. Moreover, this Court's decisions in Porto Rico v. Rosaly, 227 U.S. at 273, and Kawananakoa v. Polyblank, 205 U.S. at 353, did not involve federal constitutional claims. Nonetheless, it seems reasonable to conclude that, just as the federal government and the States enjoy sovereign immunity from nonconsensual damage actions based on federal constitutional claims, so, too, Territories should be immune from such nonconsensual suits. /14/ Even if Guam were a "person" for purposes of Section 1983, the question would still remain, as Justice Brennan noted with respect to the State in his dissent in Will, 109 S. Ct. at 2320, whether and to what extent the defense of sovereign immunity could be invoked. That question -- which would raise various issues regarding the scope of Guam's sovereign immunity, the effect of Section 1983 on that immunity, and the interrelationship between Section 1983 and 48 U.S.C. 1421a -- was not discussed by the court below. /15/ In any event, an intracircuit conflict provides no basis for this Court's review. Wisniewski v. United States, 353 U.S. 901, 902 (1957). /16/ The decision below does not conflict with Carter v. District of Columbia, 795 F.2d 116 (D.C. Cir. 1986). See Pet. 33. In Kawananakoa v. Polyblank, 205 U.S. at 352-354, this Court distinguished the District of Columbia from the Territories for sovereign immunity purposes. In any event, Carter did not address the question whether the District of Columbia is a person under Section 1983. See 795 F.2d at 122-126 (upholding a directed verdict for the city on the ground that the plaintiff did not establish an official custom or policy under Monell).