MEMORANDUM OF LAW

THE RELOCATION AND INTERNMENT OF THE ALEUT PEOPLE
DURING WORLD WAR II:
A CASE IN LAW AND EQUITY FOR COMPENSATION

By

John C. Kirtland, Esq.
Catherine A. Novelli, Esq.
BISHOP, LIBERMAN, COOK, PURCESS & REYNOLDS
1200 Seventeenth Street, N.W.
Washington, D.C. 20036

Special Counsel to

Aleutian/Pribilof Islands Association, Inc.
The Aleut Corporation
The Aleutian Housing Authority

Submitted to

Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515

June 21, 1984

TABLE OF CONTENTS

I. THE HISTORICAL BASIS FOR CONSIDERAION OF ALEUT CLAIMS FOR COMPENSATION FOR INJUSTICES SUFFERED AS A RESULT OF RELOCATION AND INTERNMENT DURING WORLD WAR II -- 1

A. Sovereign Immunity -- 2

B. Special Statutes for Equitable Relief -- 5

C. Private Relief Legislation -- 6

D. Special Statutes Creating Claims Tribunals -- 10

II. THE INJUSTICES SUFFERED BY ALEUTS WHO WERE RELOCATED AND INTERNED BY THE UNITED STATES DURING WORLD WAR II -- 11

A. Property Taken or Destroyed Without Compensation -- 12

1. Restitution -- 13

2. Constitutional Right to Compensation -- 14

B. Quartering Troops in Houses and Other Structures -- 19

C. Liberty Restricted and Life Threatened -- 22

1. Constitutional Basis for Compensation -- 23

2. Tort Basis for Compensation -- 25

III. CONCLUSION -- 28

TABLE OF CASES

Cases / Page

Bolling v. Sharpe, 347 U.S. 497 (1954) -- 23, 24
Burkhardt v. United States, 113 Ct. Cl. 648, 84 F. Supp. 553 (1949) -- 8, 9
Chisholm v. Georgia, 2 Dall. 419 (1793) -- 2
Cohens v. Virginia, 6 Wheat. 264 (1821 -- 2
D'Ambra v. United States, 481 F.2d 14 (1973) -- 26, 27
Drake America Corp. v. United States, 168 Ct. Cl. 318 (1964) -- 9
Duncan v. United States, 43 Ct. Cl. 488 (1913) -- 21
Ghitescu v. United States, 201 Ct. Cl. 823 (1973) -- 8, 9
Kent v. Dulles, 357 U.S. 116 (1958) -- 25
Lance Industries, Inc. v. United States, 3 Ct. Cl. 762 (1983) -- 9
Messina v. United States, 193 Ct. Cl. 993 (1970) -- 9
Mitchell v. Harmony, 13 How. 115 (1851) -- 15, 16, 17, 18
Moses v. MacFerlan Court of King's Bench, 1760, 2 Burr. 1005, 97 Eng. Rep. 676 -- 13
Sea-Gate, Inc. v. United States, 4 Ct. Cl. 25 (1983) -- 9
Shane v. United States, 3 Ct. Cl. 294 (1983) -- 9
United States v. Caltex, 344 U.S. 149 (1952) -- 17, 18
United States v. Clarke, 8 Pet. 436 (1834) -- 2
United States v. Klein, 13 Wall, 128 (1871) -- 3

United States v. Lee, 106 U.S 196 (1882) -- 2
United States v. Pacific Railroad Co., 120 U.S. 227 (1887) -- 17
United States v. Russell, 13 Wall. 623 (1871) -- 16, 17, 18

I. THE HISTORICAL BASIS FOR CONSIDERATION OF ALEUT CLAIMS FOR COMPENSATION FOR INJUSTICES SUFFERED AS A RESULT OF RELOCATION AND INTERNMENT DURING WORLD WAR II

The Commission on Wartime Relocation and Internment of Civilians considered the injustices suffered by the Aleut people at the hands of the United States government during World War II. In considering legislation to implement the Commission's recommendations, Congress is following a long line of precedents to ensure that justice is done in the relationship of government with the people.

Only the Congress can consent to liability for claims against the United States. Under our system of laws, there is no other authority which can waive sovereign immunity. In the case of the injustices against the Aleut people, Congress sought the assistance of the distinguished Commission in determining how to proceed.

After extensive hearings, the Commission recommended that compensation be paid to the Aleuts in five ways: (1) establishment of a trust fund; (2) direct per capita payments to those relocated during World War II; (3) funds to rebuild and restore Aleut village churches destroyed during World War II; (4) funds to clear away debris which still remains from World War II; and (5) conveyance of Attu to the Aleuts through their Native corporation.

Because of the importance of the issues, this Memorandum has been prepared to assist the Committee in evaluating the pending bills to implement the Commission's recommendations. In our view, a concise review of traditional private relief remedies, based upon equity and law, will be required to place the Aleut's case in context and perspective.

A. Sovereign Immunity

The doctrine of sovereign immunity, that the judicial power does not extend to suit against the United States, was first introduced by Chief Justice Jay when he observed that a suit would not lie against the Government because "there is no power which the Courts can call to their aid." Chisholm v. Georgia, 2 Dall. 419, 478 (1793). Chief Justice Marshall concluded in a later case, as a matter of obiter dictum, that "no suit can be commenced or prosecuted against the United States." Cohens v. Virginia, 6 Wheat. 264, 411-412 (1821).

The doctrine was directly established in United States v. Clarke, where Chief Justice Marshall said that, as the United States is "not suable of common right, the party who institutes such suit must bring his case within the authority of some act of Congress, or the court cannot exercise jurisdiction over it." 8 Pet. 436, 444 (1834). In the case of United States v. Lee, 106 U.S 196 (1882), the Court examined the doctrine in depth, and confirmed Marshall's finding in Clarke that lawsuits against the United States

can be brought only in the manner prescribed by Congress and subject to any limitations that Congress might impose.

As no right of action against the government existed in the courts, the Congress in the early years of the Republic directly considered all claims as private bills. The evolution toward modern claims adjudication began in the mid-nineteenth century, and the initial steps of that process are described in United States v. Klein, 13 Wall. 128, 144 (1871):

It is as much the duty of the government as of individuals to fulfill its obligations. Before the establishment of the Court of Claims claimants could only be heard in Congress. That Court was established in 1855 [10 Stat. at Large, 612] for the triple purpose of relieving Congress, and of protecting the government by regular investigation, and of benefiting the claimants by affording them a certain mode of examining and adjudicating upon their claims. It was required to hear and determine upon claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States. Originally it was a court merely in name, for its power extended only to the preparation of bills to be submitted to Congress.

Congress authorized the Court of Claims (now, the U.S. Claims Court) to render final judgments in 1863 [12 Stat. at Large, 765], but the jurisdiction of the court remained limited, generally to the cases and controversies described in Klein above.

In contemporary practice Congress has waived sovereign immunity in a number of general laws, and has established judicial review of the claims authorized under the applicable statutes. See, e.g., the Tucker Act, 28 U.S.C. 1346 (a) (1976 and Supp. 1984), based on 36 Stat. 1093, approved March 3, 1911; the Federal Tort Claims Act, 28 U.S.C. 1346, 2671-2680 (1976 and Supp. 1984), approved June 15, 1948.

Those claims against the government which Congress has authorized and permitted under general laws are often narrow in scope and subject to selected rules of the law of the place where the conduct complained of occurred. Under the Federal Tort Claims Act, for example, the United States "shall not be liable for interest prior to judgment or for punitive damages," 28 U.S.C. 2674 (1976), notwithstanding state law. Otherwise, the law of the state where the tort occurred controls, except for the application of a Federal statute of limitations. 28 U.S.C. 1346(b) (1976 and Supp. 1984).

Despite the general laws of sovereign immunity waiver, the Congress has always reserved the privilege of considering, under special or ad hoc rules, those petitions for redress of grievances which the government has a moral obligation to resolve. Although the modern code is comprehensive and extensive regulatory authority to settle claims has been established, the Congress continues to give special consideration to injustices committed by Federal officials,

under lawful statutes, that offend the conscience of a civilized society.

B. Special Statutes for Equitable Relief

The Congress from time to time has enacted laws designed to provide equitable relief to a special class of petitioners whose remedies cannot be found under the general statutes. One notable example was the Act of August 13, 1946, 60 Stat. 1049, which established an Indian Claims Commission to redress grievances unique to the condition of Native Americans. That Act authorized the Commission to hear and determine any defense of laches or any statute of limitations, including claims:

...which would result if the treaties, contracts, and agreements between the claimant and the United States were revised on the ground of fraud, duress, unconscionable consideration, mutual or unilateral mistake, whether of law or fact, or any other ground cognizable by a court of equity; * * * and... claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity.

25 U.S.C. 70a. The strong emphasis on fair dealings, and equitable considerations in resolving claims against the United States, was incorporated to reflect the Congressional view that government, regardless of any arbitrary statute of limitations or defense of laches, has a moral obligation to right those wrongs which, upon reflection, are unconsciona-

ble and violate an express or implied covenant with the people.

C. Private Relief Legislation

All claims against the United States were considered directly by Congress, as noted in A above, before 1855. These claims were decided upon consideration of private relief legislation, and equitable as well as legal principles were taken into account. Although most claims are resolved today under the general laws, private relief legislation continues to play an important role in unique cases involving equitable considerations which cannot be ignored.

In reporting legislation to facilitate review of private relief petitions by the Court of Claims in so-called Congressional reference cases, the Senate Committee on the Judiciary stated:

The contention that general legislation is preferable and should be sufficient to cover all cases attributes to the legislative branch a degree of omniscience and prescience that this committee is unwilling to claim for itself. It is impossible, particularly in legislation regulating the relationship between the government and private parties to take account of all eventualities.

It should also be remembered that in the special area with which private relief legislation deals, factors that in other areas ameliorate the possible harsh effects of general laws may not exist. Government officials are understandably unwilling to spend the taxpayers' money in situations in which they are not clearly authorized by statute to do so, whereas in a comparable situation a private party might well decide that, although under the law his obligation is not clear, he will pay another person what he feels that

equity and fair play dictate he pay. Conversely, a Government official -- despite his personal view of the equities of a particular situation -- will be extremely reluctant to fail to press the Government's rights under a general statute, while a private party might decide that in good conscience he should forego what is legally his due.

In addition, in applying statutes regulating the rights and obligations of the Government the courts have less freedom to adjust their decisions than they do in developing the common law of relationships among private parties. For all these reason, the committee is of the opinion that private relief legislation is both useful and necessary, and that... legislation is needed in order to facilitate congressional action on such private legislation.

S. Rep. No. 1643, 89th Cong., 2d Sess. 4-5 (1966). The Congress will not be bound by rigid administrative or statutory guidelines in fixing remedies for claims based upon considerations or circumstances so unique that justice cannot be done without direct consideration of the moral and equitable issues involved.

As noted in the rules of the House Subcommittee on Administrative Law and Governmental Relations, House Committee on the Judiciary:

In connection with its jurisdiction over claims, the subcommittee considers private bills extending relief to individuals who have no other existing remedy. The right to petition for a redress of grievances, the subcommittee is guided by principles of equity and justice. The task of the subcommittee is to determine whether the equities and circumstances of a case create a moral obligation on

the part of the Government so that an individual merits relief.

Subcommittee Rules, Rule 5 (94th Cong.). The conscience of the American people, in the final analysis, is reflected in the conscience of the Congress. As courts are limited in the relief which they can grant by the limitations of the sovereign immunity statutes, only the Congress has power to structure a remedy in certain cases where so remedy in law can be defined.

Although the precedents and the parameters of general statutes may serve to guide the Congress in fashioning private relief, these benchmarks have been considered illustrative of justice, not dispositive under all circumstances.

In adjudicating private relief legislation referred by Congress under 28 U.S.C. 1492 (1976 and Supp. 1984) and predecessor statutes, the Claims Court has followed the doctrine established in Burkhardt v. United States, 113 Ct. Cl. 648, 84 F. Supp. 553 (1949), which held that "the term 'equitable claim' ... is no used in a strict technical sense meaning a claim involving consideration of principles of right and justice as administered by courts of equity, but the broader moral sense based upon equitable considerations." Id. At 667, 84 F. Supp. At 559.

The Claims Court resists the construction of rigid formulae in deciding the basis of an equitable claim. An equitable claim might be one that offends "the conscience and honor of the sovereign," Ghitescu v. United States, 201

Ct. Cl. 823, 827 (1973) or one involving "the sort of fundamental fairness which would impose on the Government a moral obligation," Messina v. United States, 193 Ct. Cl. 993, 993, 998 (1970).

The Court in Drake America Corp. v. United States, 168 Ct. Cl. 318, 326 (1964), stated its position in the following terms:

The elements which constitute an equitable claim as broadly defined in Burkhardt... cannot be itemized in an inflexible formula. The facts and circumstances of each case must be weighed to determine whether the conscience and honor of the sovereign dictate that plaintiff should receive compensation that is not recoverable under a legal cause of action.

Since Drake, the Court has refined the definition of "equitable." The most recent cases have adopted the rule that the United States must commit some 'wrong' in order to incur liability under an equitable claim. Shane v. United States, 3 Ct. Cl. 294, 304 (1983); Lance Industries, Inc. v. United States, 3 Ct. Cl. 762, 779 (1983).

In Sea-Gate, Inc. v. United States, 4 Ct. Cl. 25 (1983), the Court stated:

An equitable claim on a Congressional reference must rest on some unjustified governmental act that caused damage to the claimants.

Id. at 30. In the Court's view, the absence of a negligent or wrongful action on the part of the government would result in an award which is a mere gratuity. Id. See also 28 U.S.C. 2509(c) (1976).

D. Special Statutes Creating Claims Tribunals

Under circumstances where a class of persons has endured special hardships not compensable under law, the Congress as a matter of equity has occasionally established tribunals as a matter of equity has occasionally established tribunals to consider the claims of those persons, and to fix damages in compensation or to report back to Congress with findings and recommendations.

The Act of July 3, 1948, 62 Stat. 931, 50 U.S.C. App. 2001 et seq. (1976 and Supp. 1984), established a War Claims Commission to determine the compensation due, based upon equitable considerations, to persons who, as civilians, were captured by Imperial Japanese forces during World War II. Certain claims of religious organizations, prisoners of war, employees of contractors, and others were adjusted by this ad hoc Commission as well.

Under another statute, Congress established the Philippine War Damage Commission, and authorized that panel to make compensation "on account of physical loss or destruction of or damage to property in the Philippines ... as a result of ... enemy attack, ... action taken by or at the request of the military, naval, or air forces of the United States to prevent such property from coming into the possession of the enemy ... [and other perils]." 50 U.S.C. App. 1752(a) (1976).

The present Commission on Wartime Relocation and Internment of Civilians was established, pursuant to Public

Law 96-317, 94 Stat. 964, approved July 31, 1980, not to determine levels of compensation for the victims of official abuse and neglect, but to find the facts, and make recommendations to Congress concerning the appropriate remedies for those victims. See, Pub. L. 96-317, section 4(a)(3), 4(c), 94 Stat. at 965, 28 U.S.C. 2415 (1976 and Supp. 1984).

In the time-honored tradition of private relief legislation, Congress has the opportunity to fashion remedies from the Commission's recommendations for those who were relocated and interned during World War II, both of Japanese ancestry and Aleut heritage.

II. THE INJUSTICES SUFFERED BY ALEUTS WHO WERE RELOCATED AND INTERNED DURING WORLD WAR II

This Memorandum is accompanied by eight volumes of evidence compiled by the Aleutian/Pribilof Islands Association submitted to the Commission on Wartime Relocation and Internment of Civilians an extensive factual narrative of the Aleuts' experience during World War II. That narrative, entitled "The Reloca-

tion and Internment of the Aleuts During World War II," is footnoted to the evidence volumes and to other works. It is indexed by proper name, by place and by major subject. A copy of the Narrative has been separately provided to each subcommittee member and to the committee majority and minority staffs.

The evidence volumes and factual narrative set forth the facts of the Aleuts' case for compensation and other equitable relief from Congress for the injustices they suffered in the war. This Memorandum will describe some of the legal principles that may be considered by Congress in establishing the appropriate remedies under the facts and circumstances of this unique and tragic case.

A. Property Taken or Destroyed Without Compensation

The evidence demonstrates conclusively that (1) the Aleuts' personal property was left behind by military order when they were evacuated by military personnel from their villages; (2) this personal property was extensively vandalized, appropriated for official use, or taken by armed forces personnel as souvenirs; and (3) just compensation for much of this personal property was never made by the United States.

The Aleuts have an equitable claim for restitution and a claim against the United States on Constitutional grounds for full compensation for their personal property losses.

1. Restitution. President Roosevelt recognized the right of the Aleuts to restitution for property losses sustained during military occupation of their villages and homes by U.S. forces. As shown in the evidence provided to the Committee, the President directed that appropriations out of his emergency fund be expended to rehabilitate the villages and to satisfy claims against the government for property loss.

Unfortunately, the depositions from surviving Aleuts and the limitations on payment of claims for property loss demonstrate that the Aleut villagers were not compensated for much of the personal property lost, taken or destroyed by government agents and employees, including members of the armed forces.

The Aleuts left their property, unprotected, in their homes and villages under the exigencies of the military situation. The possession, protection and care of that property was assumed by the United States, but due care was not taken and the property was lost or destroyed beyond use.

The earliest cases in equity provide the guidelines for the Congress in judging whether restitution to the Aleuts for heretofore uncompensated property losses is appropriate. In Moses v. Macferlan, Court of King's Bench, 1760, 2 Burr. 1005, 97 Eng. Rep. 676, Lord Mansfield considered the question whether an action in equity, or on the agreement between the parties, would lie when defendant unjustly held

the property (in this case, money) of plaintiff, notwithstanding an oral understanding that plaintiff would not suffer loss by virtue of certain circumstances beyond his control:

This kind of equitable action, to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money which, ex aequo et bono, the defendant ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money which, ex aequo et bono, the defendant ought to refund: it does not lie for money paid by the plaintiff, which is claimed of him as payable in point of honor and honesty, although it could not have been recovered from him as payable in point of honor and honesty, although it could not have been recovered from him by any course of law; as in payment of a debt barred by the Statute of Limitations, or contracted during his infancy, or to the extent of principal and legal interest upon an usurious contract, or, for money fairly lost at play: because in all these cases, the defendant may retain it with a safe conscience, though by positive law he was barred from recovering. But it lies for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition, (express, or implied;) or extortion; or oppression; or an undue advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under those circumstances.

In one word, the gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money.

Notwithstanding any defense the United States may now have against Aleut claims for property losses, the equitable principles defined by Lord Mansfield above cannot be ignored in the conscience of the Congress.

2. Constitutional Right to Compensation. The Fifth Amendment to the U.S. Constitution provides that "No person shall be... deprived of life, liberty, or property, with-

out due process of law; nor shall private property be taken for public use without just compensation." The United States has permitted itself to be sued on Constitutional grounds since enactment of the Tucker Act in 1911, 28 U.S.C. 1346(a)(2) (1976 and Supp. 1984), and Congress should not permit any defense of laches or limitations statute interfere with compensation to the Aleuts for their property losses during the war years.

Assuming that the initial decision to evacuate the villages was occasioned by military necessity, the principles of law applicable under early cases and cited in later cases as of continuing validity demand, nevertheless, compensation for the Aleuts' losses.

One precedent that parallels the Aleuts' situation is the case of Mitchell v. Harmony, 13 How. 115 (1851). In that case, plaintiff was a trader forced to accompany a column of U.S. Army troops through hostile territory in the Mexican War. The defendant officer in charge seized plaintiff's wagons, mules and goods. As in the course of the operation, plaintiff's property was destroyed, he sued the commanding officer in charge seized plaintiff's wagons, mules and goods. As in the course of the operation, plaintiff's property was destroyed, he sued the commanding officer in trespass for the value of his losses.

The Supreme Court affirmed the verdict for plaintiff, and described in the course of its opinion the limits of military power under such circumstances:

...[I]t must be remembered that the question here is not as to the discretion [the military commander] may exercise in his military operations or in relation to those who are under his command. His distance from

home, and the duties in which he is engaged, cannot enlarge his power over the property of a citizen, nor give to him, in that respect, any authority which he would not, under similar circumstances, possess at home. And where the owner had done nothing to forfeit his rights, every public officer is bound to respect them, whether he finds the property in a foreign or hostile country, or in his own.

There are, without doubt, occasions in which private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy; and also where a military officer, charged with a particular duty, may impress private property into the public service or take it for public use. Unquestionably, in such cases, the government is bound to make full compensation to the owner...

13 How. at 134. Under waiver of sovereign immunity procedures, the Court was not reluctant to affirm the holding in Mitchell when it considered the claim of a steamboat fleet owner whose vessels had been taken into service by military authorities in the Civil War. In the case of United States v. Russell, 13 Wall. 623 (1871), the Court held, under the facts, that officers of the United States were justified in pressing the steamboats into service on the grounds of military necessity.

The Court in Russell stated that "[p]rivate property, the Constitution provides, shall not be taken for public use without just compensation, and it is clear that there are few safeguards ordained in the fundamental law against oppression and the exercise of arbitrary power of more ancient origin or of greater value to the citizen..."

13 Wall. at 627. The Court recognized the need for extraordinary action in time of emergency:

Extraordinary and unforeseen occasions arise, however, beyond all doubt, in cases of extreme necessity in time of war or of immediate and impending public danger, in which private property may be seized and appropriated to the public use, or may even be destroyed without the consent of the owner * * *. [T]he rule is well settled that the officer taking private property for such a purpose, if the emergency is fully proved, is not a trespasser, and that the government is bound to make full compensation to the owner.

13 Wall. at 627-628. Although the Court noted in United States v. Pacific Railroad Co., 120 U.S. 227, 234 (1887), that the "...destruction or injury of private property in battle, or in the bombardment of cities and towns, and in many other ways in the [Civil] war, had to be borne by the sufferers alone," that case was clearly distinguishable from Mitchell and Russell. The destruction caused by raging battle, of course, cannot be considered a compensable loss except by special dispensation of the Congress.

A more difficult case, which does not reverse Mitchell or Russell, but narrows the holdings in those cases, involves property destroyed in the Philippines by retreating U.S. forces in World War II. Under the facts of United States v. Caltex, 344 U.S. 149 (1952), American Army forces destroyed the property of respondent oil companies to prevent its imminent capture by the enemy. The Army's purpose was limited "...to the sole objective of destroy-

ing property of strategic value to prevent the enemy from using it to wage war the more successfully." 344 U.S. at 153.

The Court held that the oil companies' property losses were not compensable under the Fifth Amendment, but stressed that "[n]o rigid rules can be laid down to distinguish compensable losses from noncompensable losses. Each case muse be judged on its own facts." 344 U.S. at 156. In the Caltex case, the court confirmed in dicta that "...equipment which had been impressed by the Army for use by the Army," as in Mitchell and Russell, would be compensable losses to the owners. Id. at 153.

The Philippine War Damage Commission, of course, was established precisely to resolve equitable claims in close questions of law and fact, such as presented in Caltex. See, 50 U.S.C. App. 1752(a) (1976). The present Commission had a comparable mandate, to the extent that precedent, in the case of some Aleut villages, would not directly assure compensation to the victims.

The treatment of the Aleuts' personal property, of course, varied from village to village, house to house, room to room. In some cases, as the evidence demonstrates, personal property was appropriated for official use without proper recordkeeping. In other cases, servicemen looted and wantonly destroyed the Aleuts' prized possessions and heirlooms, and no adequate effort was made by officers to

Prevent such looting and destruction. And finally, the Atka situation involved the intentional (and irrationally precipitate) burning of Aleut property and homes, putatively to prevent such property and homes from falling into the hands of the enemy. One universal principle applies, however, to all Aleut villages and homes that suffered from the occupation of U.S. servicemen and civilian employees. That principle is that compensation was due, and compensation was not adequately provided following the war.

The Committee now has the opportunity, and the obligation, to recommend full restitution to the Aleuts for property lost, but not restored or replaced, during the period of their tenure in the Southeastern Alaska camps.

B. Quartering Troops in Houses and Other Structures

The Third Amendment to the United States Constitution states in its entirety:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in manner prescribed by law.

This Amendment has not had the benefit of judicial construction, although it is clear that the language reflects the Founding Fathers' preference for the civilian authority in governance over the military establishment.

On Atka those Aleut homes that were not destroyed by fire were dismantled for use of the lumber or used to quarter troops or troop-support equipment. The soldiers lived

in Aleut homes in Nikolski after the evacuation of the Aleut owners, and the removal of the people to the camps. In Unalaska and Akutan, the Aleuts' homes apparently were not used to billet troops, but property from the homes was "officially used" by the occupying American military personnel, or looted and ransacked by such personnel for no purpose whatsoever.

The Pribilof Islands present a special circumstance. As the Fish and Wildlife Service administered the islands for the protection of the North Pacific fur seal, the structures on the islands apparently were considered Federal property, notwithstanding the Aleuts' inherent right of occupancy, since recognized by Congress in the Alaska Native Claims Settlement Act, Pub. L. 92-203, 85 Stat. 688, approved December 18, 1971. The Aleuts' homes on St. Paul were used to quarter troops; on St. George Island, certain facilities shared by the Aleuts and non-Aleut supervisors were used by the armed forces. In the case of both islands, all Aleut homes were vandalized by the occupying American servicemen.

Although no case has been decided directly on Third Amendment grounds, the Court of Claims has considered and decided one landmark case in which soldiers occupied without compensation the facilities of a private citizen in time of war.

In Duncan v. United States, 43 Ct. Cl. 488 (1913), the Court had under consideration a claim referred by the House of Representatives for payment of compensation for use of property. The property, owned by John Duncan and his father, was a machine shop in Charleston, South Carolina, and Union soldiers occupied the shop for 169 days during the year 1865. This occupation was temporary, and there was no suggestion, express or implied, that the soldiers had appropriated the shop for public use on a permanent basis.

While the soldiers occupied the shop, they paid Duncan and his father a fair wage for working under the direction and supervision, but they did not pay rent for the facility itself. The Court of Claims had little trouble deciding the issue:

On the merits the court finds that the reasonable value of the machine shops and machinery, including the material taken and the wear and tear of the machinery belonging to these claimants, was then and there the sum of $8,450.

The court decides, as a conclusion, that the claim herein is equitable, in that the Government of the United States received the benefits from the use of the machine shops and machinery, tools, and materials of the claimants.

The foregoing findings, together with a copy of this opinion, will be reported to Congress.

43 Ct. Cl. at 497-498. Thus the Court found that the fair rental value of a machine shop in Charleston, South Carolina, in the midst of Civil War, was the incredible sum of $50 per day. And it was the obligation of the United

States, having used the property, to provide full compensation -- forty-eight years later -- to the aggrieved owners. There is no less a duty today, about forty years after the fact, on the part of the Government to compensate the Aleut owners for the occupancy of their homes during the war years. The principles involved are at least equitable, and should fall within the Third Amendment's proscription as well.

Unquestionably, the facts and circumstances of the occupation of the Aleuts' houses by U.S. military forces imply an act of lawlessness. Congress now has the opportunity to compensate the Aleuts for the use of their property during the war, as Duncan was compensated under almost identical circumstances following the Civil War.

C. Liberty Restricted and Life Threatened

The Aleut experience in World War II is unique in the annals of the modern American history. These citizens were neither accused nor suspected of any disloyalty to the United States in time of war. They were relocated while their non-Aleut neighbors, in Unalaska/Dutch Harbor at least, were permitted to remain at home and pursue their occupations.

The Aleuts were segregated in camps hundreds of miles from their homes, and were coerced by a variety of means into remaining in those camps by government officials. As white civilians of the Aleutians were conducting their lives

under relatively normal circumstances, the Aleut evacuees were suffering from deprivation and disease. They died in the camps established for their "care."

1. Constitutional Basis for Compensation. The Supreme Court has recognized that official discrimination by the Government can be so unjustifiable as to be violative of the Fifth Amendment to the Constitution. As noted above, the Fifth Amendment provides that "No person shall ... be deprived of life, liberty, or property without due process of law..."

The leading case involving the question of official discrimination by Federal officials, so offensive as to be violative of the Fifth Amendment's due process clause, is Bolling v. Sharpe, 347 U.S. 497 (1954). The issue was whether segregation of public schools in the District of Columbia, a Federal preserve, was violative of the Fifth Amendment, as such segregation had been determined to be violative of the Fourteenth Amendment's equal protection clause applicable to the several states. The Court discussed the meaning of "liberty" in the Fifth Amendment sense:

Although the Court has not assumed to define "liberty" with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of liberty in violation of the Due Process Clause.

347 U.S. at 499-500. If the government of the United States cannot segregate school children by race under the mandate of the Fifth Amendment, then certainly the government cannot segregate people by race in internment camps, regardless of the original justification of the removal of those people from their homes. The official discrimination, the segregation suffered by the Aleuts, was at least as extreme as that condemned in Bolling v. Sharpe.

The government recognized the income loss to the Attuans by virtue of their internment in Japanese detention camps on Hokkaido Island during World War II. In a letter dated January 29, 1946 to the Commissioner of Indian Affairs, the General Superintendent of the Alaska Indian Service, Don C. Foster, recommended compensation to the surviving Attuans of lost income from trapping in the amount of $74,425.00 for the years they were detained on Hokkaido Island. See, Evidence, Vol. IV, p. 241. Unfortunately, the lost income suffered by those Aleuts detained by the United States was not recognized as compensable on the same basis.

Because of inadequate medical care, housing, potable water and sanitation facilities, the ravages of disease took an unconscionable toll among the Aleut people. The government may not deprive a person of life without due process. Although no judicial construction of this aspect of due process exists outside the criminal cases, it should be apparent that physical restraint under life-threatening

Conditions is a deprivation not only of liberty, but of life itself, and violative of the most solemn commitments to citizens made by the Founding Fathers.

Among other rights, the "right to travel" is explicitly protected as a fundamental liberty under the due process clause. In Kent v. Dulles, 357 U.S. 116, 126 (1958), the Supreme Court recognized "[f]reedom of movement across frontiers in either direction, and inside frontiers as well, as a part of our heritage. Travel abroad, like travel within the country, ... may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values."

As enjoyed by their non-Native compatriots, the liberty to move freely was denied the Aleuts without basis in military necessity or any other doctrine. It was simply convenient to segregate the Aleut population, to limit their personal freedoms while in the camps, and to manage them as a herd of animals would be managed.

Under the principles of the Constitution, Congress should compensate those Aleuts under United States jurisdiction during World War II on a per capita basis in recognition during World War II on a per capita basis in recognition of lost income not recovered in alternative employment in or near the camps, deprivation of life and restriction on freedom of movement.

2. Tort Basis for Compensation. Under the Federal Tort Claims Act, discussed above, the United States has

consented to be sued in wrongful death actions under certain limitations not universally applicable under state law. In the cases brought under this statute, there are a number of guidelines in determining compensation to the victims' survivors that would be of use to the Congress in evaluating the Commission's recommendations.

One leading case asks the question, whether "Congress intended in a wrongful death case to accept liability over and above compensating the survivors to the extent of their loss; viz, if a state statute so provided, to pay an additional sum computed on some concept of the ultimate value of the estate, which, demonstrably, the survivors would never have received." D'Ambra v. United States, 481 F. 2d 14, 16 (1973).

The Court answered the question with the following statement:

We start with the proposition that while the measure of recovery must be compensatory to the survivors of a deceased child, it need not be only a measure of pecuniary loss. ***

An equally realistic but more limited element of compensation for the loss of a minor child, capable of responsible judicial application, seems to us to lie in the loss of society and companionship of the child. ***

The difficulty of assessing this element of damage is not intrinsically greater than that of putting a figure on the loss of nurture, intellectual, moral and physical training which a child suffers with the loss of a parents. ***

...therefore, the district court will [on remand], on the basis of such factors as the remaining period of minority and likely inti-

mate association with the family, had the child lived, the cohesiveness of the family unit, and recoveries realized in similar cases, attempt to measure compensation by the loss of the companionship and society of the infant victim.

481 F.2d at 20-21. As the Court established in D'Ambra, there are principles in wrongful death actions which transcend the survivors' mere pecuniary loss. This is especially true in the case of young children, and it was especially true in the case of the Aleut internment.

As established beyond doubt in the evidence, the Aleut people suffered in the camps from lack of adequate shelter, lack of medical care, lack of proper sanitation facilities, and lack of potable water supplies. The resulting deaths were inexcusable, and must constitute a basis for compensation to the survivors of the victims, and to the Aleut community as a whole.

While it would not be appropriate to apply the Federal Tort Claims Act directly under Congressional waiver to the deaths in the Aleuts' camps, it would be appropriate to use principles derived from cases decided under that Act in determining the proper damages for the inexcusable loss of life that occurred in those places.

Congress should provide an appropriate measure of damages for the loss of life and physical debilitation suffered by the Aleuts in their years of internment.

III. CONCLUSION

Five methods of compensation have been determined by the Commission on Wartime Relocation and Internment of Civilians to be appropriate:

1. The establishment of a trust fund for community and individual purposes to compensate the Aleuts for injuries suffered as a result of the evacuation;

2. A direct per capita payment to each of the few hundred surviving Aleuts who were evacuated from the Aleutian or Pribilof Islands by the federal government during World War II;

3. The appropriation of funds to rebuilt and restore the churches damaged or destroyed in the Aleutian Islands during World War II;

4. The appropriation of funds to clear away the debris that remains from World War II in and around populated areas of the Aleutian Islands; and

5. A Congressional declaration that Attu is native land and as such be conveyed to the Aleuts through their native corporation upon condition that the native corporation is able to negotiate an agreement with the Coast Guard which will allow that service to continue essential functions on the island.

As has been shown, these recommendations are in keeping with both the facts and the law. The Aleut people therefore respectfully do petition the Congress for legislative relief

that would give effect to the Commission's recommendations. Such action will demonstrate that Congress and the American people will never again permit such events to occur or such conditions to exist. By taking this action, Congress can make a concrete expression of profound regret that cannot be ignored by administrators and high officials whenever their duties in future years include the exercise of such great power over their fellow citizens.