FSM SUPREME COURT TRIAL DIVISION-STATE OF KOSRAE

Cite as Lonno v. Trust Territory (I), 1 FSM Intrm. 53 (Kosrae 1982)

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Service System and served at sea on vessels under control of the Trust Territory Government. He charges that he was unlawfully discharged by the Trust Territory Government. For purposes of this motion to dismiss, these allegations are deemed to be true. ¹

Lonno's legal claims here are grounded upon the Seaman's Protection Act, 19 T.T.C. Sections 201-32; and the Trust Territory Bill of Rights, 1 T.T.C. Section 4. He also generally claims violations of unspecified provisions of th e Trusteeship Agreement under which the United States serves as administering authority for the Trust Territory of the Pacific Islands ² and of the Charter of the United Nations. ³ Based upon these legal claims, he contends that this Court has jurisdiction over the litigation as an admiralty or maritime case under Article XI, Section 6(a) of the Federated States of Micronesia Constitution, and as a case arising under national law, or as a dispute between a citizen of a state and a foreign state, citizen, or subject, under Article XI, Section 6(b) of the constitution.

Effect of 6 T.T.C. Section 251

The Trust Territory Government argues that regardless of anything the Constitution of the Federated States of

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Micronesia may say, 6 T.T.C. Section 251 precludes this court from exercising jurisdiction over it. That statutory provision authorizes certain types of civil actions against the Trust Territory Government ⁴ but specifies that the Trial Division of the High Court shall have exclusive original jurisdiction thereof." The Trust Territory Government contends that this language means precisely what it says and that this court is barred from exercising jurisdiction in any civil action against the Trust Territory Government.

The defendant's straightforward argument has immense appeal and would in most circumstances be dispositive of this case. The pertinent statutory language is plain and unambiguous and the court would normally accept the argument without further thought or discussion.

Here however, extraordinary events have occurred since this legislation was enacted into the Trust Territory Code by the now defunct Congress of Micronesia in 1970. When these massive events are considered, and their impact upon the provisions of 6 T.T.C. Section 251 is assessed, it becomes clear that the question and answer are not nearly

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First, the development, adoption and implementation of the Constitution and constitutional governments of the Federated States of Micronesia demand our attention. Considerably after enacting 6 T.T.C. Section 251, the Congress of Micronesia authorized a constitutional convention looking toward self-government by the peoples of Micronesia. Delegates from throughout the Trust Territory of the Pacific Islands convened on Saipan in 1975 and approved the document which is now the Constitution of the Federated States of Micronesia. Thereafter, a constitutional referendum was held, on July 12, 1978, throughout all parts of the Trust Territory except the Northern Mariana Islands. Peoples of each of the four states of the present Federated States of Micronesia approved the constitution by majority vote.

Since that time the Constitution of the Federated States of Micronesia has been implemented by the Constitutional Government of the Federated States of Micronesia. ⁵

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In a subsequent portion of this opinion, this court concludes that Article XI, Section 6 of the constitution provides jurisdiction over the litigation here. If defendant's argument that 6 T.T.C. Section 251 retains its former meaning were accepted, this statute would therefore be in serious conflict with the Constitution, which in turn would presumably lead to the conclusion that the statute has been repealed by the Constitution. See FSM Const. art. XV, § 1.

Fortunately however, any potential conflict here between the statute and the constitution has been avoided through anticipation of the Secretary of Interior in Secretarial Order 3039, ⁶ which states in Section 2:

Delegation of Authority. Until the termination of the Trusteeship Agreement and subject to the limitations contained in this Order and in existing-treaties, laws, and regulations of the United States generally applicable in the Trust Territory of the Pacific Islands, executive, legislative, and judicial functions of the Government of the Trust Territory of the Pacific Islands are, except as otherwise provided herein, hereby delegated to the three political subdivisions of the Trust Territory known as the Federated States of Micronesia, the Marshall Islands, and Palau.

Secretarial Order 3039 cleared the way for the assumption of jurisdiction by the courts of the Federated States of

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Micronesia by delegating the judicial functions of the Government of the Trust Territory of the Pacific Islands to the Federated States of Micronesia. Thus, the previous exclusive jurisdiction of the High Court under 6 T.T.C. Section 251 was effectively delegated to the Supreme Court of the Federated States of Micronesia, in so far as the Constitution of the Federated States of Micronesia authorizes such jurisdiction. That delegation became effective on May 5, 1981, when this court was certified pursuant to Section 5 of the Secretarial Order.

Defendant also asserts that Section 5(a) of Secretarial Order 3039 insulates the Trust Territory Government from this court's jurisdiction. That subsection provides:

a. Pending Cases. The present Community and District Courts and Trial and Appellate Divisions of the High Court of the Trust Territory of the Pacific Islands shall continue to function and operate in accordance with the present procedural and jurisdictional provisions of the Trust Territory law until the Federated States of Micronesia, the Marshall Islands, and Palau have established functioning Courts pursuant to the terms of their respective constitutions. The determination that such functioning courts exist shall be made in writing by the Chief Justice of the High Court of the Trust Territory of the Pacific Islands upon written request of the chief judicial officer of the respective jurisdictions. A denial of the request may be appealed to the Secretary.

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We have also been presented with an internal United States Department of the Interior memorandum, dated November 25, 1981, and apparently prepared with this case in mind, ⁷

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from Associate Solicitor William H. Satterfield of the Solicitor's Office of the United States Department of the Interior to Interior's Deputy Assistant Secretary of Territorial and International Affairs. ⁸ This memorandum states that George Milner, former Deputy Director of Interior's former Office of Territorial Affairs and the person who drafted the phrase has said that his intent was that the phrase, "except for suits against the Trust Territory of the Pacific Islands or the High Commissioner" was "not to be affected by the rest of the paragraph." From this the Satterfield memo concludes that the phrase was inserted "to retain in the High Court jurisdiction to hear not only all cases involving the Trust Territory or the High Commissioner then pending but also all similar cases filed later until the Trusteeship Agreement is terminated." (Memo's emphasis). Plaintiff has countered the Satterfield memorandum with an April 20, 1979 memorandum prepared by Mr. George R. Milner himself for then Secretary of Interior Cecil Andrus.

To accept the Satterfield memo's version of the intended "meaning of Secretarial Order 3039 would require us to engage

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in a most extraordinary grammatical exercise. The critical phrase, "except for suits against the Trust Territory of the Pacific Islands or the High Commissioner," appears in Section 5(a) of the Order in a sentence discussing the "transfer" of cases pending" before Trust Territory courts. As the Satterfield memo itself confesses, to find that the phrase somehow affects this case originally filed in this court, we would have to agree that this phrase "was not to be affected by the rest of the paragraph in which it appears. We can not impute to the Secretary such maladroit use of the English language. The Satterfield memo conflicts with the language of Secretarial Order 3039 and must be rejected.

There are numerous additional reasons why the Satterfield memo lacks persuasive force. Merely a few need be mentioned here. A Secretarial Order, issued by one responsible official with full authority to state his intentions and instructions precisely, typically should not require reference to other documents for explanation. It is not a product of compromises and discussions among numerous legislators, where contemporaneous discussion may be especially helpful in determining the intention of the legislature in using certain words. For interpretation of a Secretarial Order, then, we should be less willing to consider other documents in the nature of legislative history. In any event, the Satterfield memo, an internal and unofficial document prepared by an officer of

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an agency, three years after the action it purports to explain, for a specific lawsuit in which the agency is directing one of the parties, would not qualify as satisfactory "legislative history". It involves a tortured chain of information and deductions, indicating Mr. Satterfield's impression (without disclosing whether Mr. Milner spoke directly to Mr. Satterfield) of Mr. Milner's present recollection of his intention almost 3 years ago, leaving us merely to presume that Mr. Milner's intention at that time may have been identical with that of the Secretary. The Satterfield memo also conflicts with the Milner memo, prepared for review by Secretary Andrus just days before Secretarial Order 3039 was issued, which contains no hint that Mr. Milner felt the Order would bar the new courts from exercising jurisdiction over lawsuits involving the Trust Territory Government. Concerning transfer of judicial functions, the Milner memo merely says:

Judicial functions will be transferred to courts of the new jurisdiction created pursuant to their respective constitutions when such courts are established and functioning. Provision is made for the continued adjudication in the existing. High Court of cases that are in active trial when the new courts are established and ultimately, for appeals from the highest court of the new governments upon writ of certiorari. These provisions have been reviewed and approved by the Solicitor.

If doubt remained that it was the intention in Secretarial Order 3039 to provide unrestricted constitutional jurisdiction

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The purpose of this Order is to provide the maximum permissible amount of self-government..., consistent with the responsibilities of the Secretary under Executive Order 11021 for the Federated States of Micronesia, the Marshall, Islands and Palau, pursuant to their respective constitutions when framed adopted, and ratified, pending termination of the 1947 Trusteeship Agreement under which the United States of America undertook to act as Administering Authority for the Trust Territory of the Pacific Islands.

The instruction of this paragraph is that the transfers of functions and delegations of authority within the Secretarial Order are to be construed as broadly as possible without violating Executive Order 11021. Delegation of former Trust Territory High Court judicial functions under 6 T.T.C. Section 251, to the courts of the Federated States of Micronesia did not violate Executive Order No. 11021. That Executive Order gives the Secretary of Interior responsibility for administration of civil government within the Trust but Section 2 broadly authorizes redelegation of judicial authority:

The ... judicial authority provided for in ... this order may be exercised.., through such...persons under the jurisdiction of the Secretary of Interior, as the Secretary may designate and shall be exercised in such a manner as the Secretary, or any person or persons acting under the authority of the Secretary, may direct or authorize.

The Secretary patently has authority to transfer judicial functions to the constitutional governments under his jurisdiction within the Trust Territory of the Pacific Islands. Moreover, such transfer more than 30 years after adoption of

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the Trusteeship Agreement plainly is appropriate, perhaps even essential, for compliance with the Trusteeship Agreement.

In discharging its obligations under Article 76(b) of the Charter, the administering authority shall:

l. foster the development of such political institutions as are suited to the Trust Territory and shall promote the development of the inhabitants of that Trust Territory toward self-government or independence as may be appropriate to particular circumstances of the trust territory and its peoples and the freely expressed wishes of the people concerned; and to this end shall give to the inhabitants of the trust territory a progressively increasing share in the administrative services in the territory; shall develop their participation in government; and give due recognition to the customs of the inhabitants in providing a system of law for the territory; and shall take other appropriate measures toward those ends.

Trusteeship Agreement, Article 6, Section 1, 1 T.T.C. 12 and 13 (1980 ed.).

The Secretarial Order interpretation here does not conflict with any residual United States obligation to oversee activities of this court pending termination of the Trusteeship Agreement, nor does this interpretation imperil any interest the United States Government may have in protecting the Trust Territory Government against unfair or overreaching actions by the courts of the new constitutional governments. The Secretarial Order retains High Court Appellate Division jurisdiction by writ of certiorari over appeals from the courts of last resort of the respective jurisdictions of the Federated States of Micronesia, the Marshall islands, and Palau. Section 5(b). This provision eliminates any possible risk which might otherwise be posed to the United States or its interests or responsibilities here by the full exercise of constitutional

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Recent precedent within the Trust Territory is also instructive in assessing the current import of 6 T.T.C. Section 251. In Sablan Construction Co. v. Government of the Trust Territory of the Pacific Islands, 526 F. Supp. 135 (D. N. Mar. I. App. Div. 1981), a taxpayer seeking refund of allegedly overpaid taxes sued the Trust Territory Government in the United States District Court for the Northern Mariana Islands. The Trust Territory Government contended, as it has here, that it could not be sued in that court because 6 T.T.C. Section 251 places exclusive jurisdiction of law suits against the Trust Territory Government in the Trust Territory High Court. Both the Trial Division and the Appellate Division of the District Court disagreed.

The Northern Mariana Islands Appellate Division reasoned that since the High Court's jurisdiction was a "creation of delegated power emanating from the United States Congress," the High Court's exclusive jurisdiction remained "only until Congress provided otherwise." 529 F. Supp. at 139. The court concluded that the United States Congress had in fact "provided otherwise" albeit by indirection, by approving the Covenant for the Northern Mariana Islands, ⁹ and by enacting 48 U.S.C. Section 1694(a)(b), which gave the district court broad

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The Sablan Construction reasoning applies to the Federated States of Micronesia as well although, because the United States has executed documents looking toward the establishment of the Northern Mariana Islands as a commonwealth of the United States, there are slight variations in the identities of officials and governmental bodies involved. The Northern Mariana Islands of course are within the Trust Territory of the Pacific Islands and are administered under the same Trusteeship Agreement as is the Federated States of Micronesia. When the Congress of Micronesia acted in 1970 to adopt 6 T.T.C. Section 251 this action affected all parts of the Trust Territory equally, including the areas now known as the Northern Mariana Islands and the Federated States of Micronesia. It acted pursuant to legislative authority granted it by the Secretary of the Interior. ¹⁰ That legislative authority was granted to the United States by the Trusteeship Agreement, but was then passed or delegated from the United States Congress to the President of the United States to the United States Secretary of the Interior and then finally to

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As a creation of delegated power emanating from the [Secretary of Interior], the High Court's jurisdiction was exclusive in the [Federated States of Micronesia] only until the [Secretary of Interior] provided other-wise. The [Secretary of Interior] did exactly that when [he promulgated Secretarial Order 3039].

Trusteeship principles likewise call for similarity between the self-government accorded the peoples of the Northern Mariana Islands by the United States, and that granted other parts of the Trust Territory. If the administering authority were to permit those peoples selecting a closer and more dependent relationship with the administering authority a higher degree of autonomy than those seeking other relationships the dual standard could suggest an effort to discourage self-government and independence of the peoples within the Trust Territory. We should not lightly find disparities which could hint of Trusteeship Agreement violation.

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We conclude then that the former exclusive jurisdiction of the Trust Territory High Court over lawsuits against the Trust Territory Government has been delegated to the constitutional governments covered by Secretarial Order 3039. Within the Federated States of Micronesia, the allocation of this former exclusive High Court jurisdiction between the Supreme Court of the Federated States of Micronesia and the various state courts will be determined on the basis of jurisdictional provisions within the Constitution and laws of the Federated States of Micronesia and its respective states. In the meantime, until the state courts are established, the High Court itself retains that portion of its exclusive jurisdiction formerly held under 6 T.T.C. Section 251 which does not fall within the constitutional jurisdiction of the Supreme Court of the Federated States of Micronesia.

Jurisdictional Grounds

Having determined that the former exclusive jurisdiction of the High Court over lawsuits against the Trust Territory Government hag been delegated to this Court, but only in so far at this Court has jurisdiction under the Constitution and laws of the Federated States of Micronesia, we now consider the various constitutional and statutory grounds suggested by plaintiff as authorizing our jurisdiction over this litigation.

Admiralty Jurisdiction - This is the first case in which this court has been asked to accept jurisdiction on the basis that the case before it is one relating to admiralty

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or maritime matters within the meaning of Article XI, Section 6(a) of the Constitution of the Federated States of Micronesia. We find no guidance in the journals of the Constitutional Convention assisting us in determining the scope of our admiralty jurisdiction. We therefore look to other sources to determine the meaning of this provision.

There are various other guides which the court might reasonably heed in determining the meaning of particular provisions within the Constitution. ¹¹ First, because the Constitution of the Federated States of Micronesia has drawn upon numerous concepts established in the Constitution of the United States, ¹² interpretations of the United States Constitution, as of 1975 when the constitution here was adopted and as of 1978 when the constitution was ratified by plebiscite, are quite pertinent to our efforts here. To the extent that the Constitution of the Federated States of Micronesia has borrowed phrases, clauses or sections identical with or clearly patterned upon the United States

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Constitution, the reasonable expectation of the framers would be that the words in the Constitution of the Federated States of Micronesia would have substantially the effect those same words had been given in the United States Constitution as of the times that the convention was acting, or when the' ratifying vote occurred.

The United States Constitution employs language similar to that of the Constitution of the Federated States of Micronesia, stating that the "Judicial Power shall extend . . . to all cases of admiralty and maritime jurisdiction." U.S. Const. art. III, § 2, cl. 1. Employing this language, United States federal courts have long asserted jurisdiction over cases involving the rights of seamen. See Isbrandtsen Co. v. Johnson, 343 U.S. 779, 72 S. Ct. 1011, 96 L. Ed. 1294 (1952). Indeed, the federal courts of the United States have looked upon seamen as favored objects or wards of the law of admiralty. Warner v. Goltra, 293 U.S. 155, 162, 55 S. Ct. 46, 49, 79 L. Ed. 254 (1934); Bainbridge v. Merchants & Miners Transp. Co., 287 U.S. 278, 53 S. Ct. 159, 77 L. Ed. 302 (1932). These authorities establish that a case such as the present one, involving a seaman's contract claim against the owner of the vessel upon which he served, would be regarded as falling within the admiralty and maritime jurisdiction of the United States federal courts. This is a powerful indication that the framers intended the Constitution

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The Trust Territory Government has suggested no basis for disputing that this lawsuit falls within the court's constitutional jurisdiction over admiralty or maritime cases and none has made itself apparent to this court. Consequently, we find that this court has original and exclusive jurisdiction over this litigation as an admiralty or maritime case within the meaning of Article XI, Section 6(a) of the constitution.

National Law Jurisdiction - Lonno asserts rights here under the Seamen's Protection Act, 19 T.T.C. Sections 201-32. While this legislation was originally enacted for the entire Trust Territory by the Congress of Micronesia, it relates to matters that now fall within the legislative powers of the national government, FSM Const. art. IX, § 2, and has therefore become a national law of the Federated States of Micronesia. Id. art. XV. That being so, a claim asserting rights under the Act falls within the jurisdiction of this court under Article XI, Section 6(b) of the constitution as a case arising under national law.

Foreign Citizenship - Plaintiff contends that, in addition to the two grounds of jurisdiction already found here, we are also free to find jurisdiction under Article XI, Section 6(b). The plaintiff, a citizen of a state, urges this court to hold that the Trust Territory Government is a "foreign state citizen or subject." Id.

Except perhaps in some metaphysical sense beyond the range of constitutional interpretation, the Trust Territory Government cannot be viewed as a state or entity "foreign"

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to the Federated States of Micronesia. See Neimes v. Maeda Construction Co., 1 FSM Intrm. 47(Truk 1982) (Benson, J.). Although it is being displaced by the new constitutional government, the Trust Territory Government retains critical governmental functions throughout the Trust Territory. The High Commissioner continues to play a major role in the budget, auditing and accounting, and grant-in-aid programs, Secretarial Order 3039, Section 3, and retains power to suspend legislation enacted by the President. Id. § 4. As already stated, Section 5(b) of Secretarial Order 3039 authorizes the Appellate Division of the High Court to entertain appeals from the courts of last resorts of the constitutional government. Thus the Trust Territory Government has the power to overrule and set aside decisions and actions of the heads of each of the three branches of the constitutional government of the Federated States of Micronesia. These awesome powers are calculated to allow the Trust Territory Government to control or override virtually every action of any constitutional government within the Trust Territory. Retention of these powers, the very essence of government, suggests that the Trust Territory Government even today remains, not a foreign state, but an integral part of the national government here.

We have found two grounds for exercising jurisdiction in this litigation. It is then unnecessary here to determine whether this court may exercise jurisdiction over this lawsuit against the Trust Territory Government as an action in

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which the "national government" is a party within the meaning of Article XI, Section 6(a) of the constitution. We conclude, however, that under the present state of affairs, the Trust Territory Government cannot be considered a foreign state, citizen or subject thereof within the meaning of Article XI, Section 6(b) of the Constitution of the Federated States of Micronesia.

Conclusion

The court has jurisdiction of this litigation as a case within our admiralty or maritime jurisdiction and as a case arising under national law. Therefore, defendant's motion to-dismiss is denied.

So ordered this 28th day of January, 1982.

/s/ Edward C. King

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Chief Justice
Supreme Court of the Federated
States of Micronesia
Trial Division

Filed January 28, 1982
             /s/ EM

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Footnotes:

^1. After filing this case on September 28, 1981, plaintiff has twice amended his complaint. The most recent amendment was submitted, without objection of opposing counsel, in open court during the January 20, 1982 hearing on this motion to dismiss.

^2. Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, 61 Stat. 3301, T.I.A.S. No. 1665, codified at 1 TTC 11 (1980 ed.).

^3. United Nations Charter, 59 Stat. 1031, T.S. No. 993 (1945).

^4. The Trust Territory Government does not contend that the claims of the plaintiff here fall outside the purview of 6 T.T.C. Section 251. In any event, plaintiff's aims plainly fall within the statutory language, which authorizes civil actions founded upon any law, or express or implied contract, 6 T.T.C. Section 251(1)(b), and actions for loss of property caused by an act or omission of an employee of the government. 6 T.T.C. Section 251(1)(c).

^5. A general election for the Congress of the Federated States was held on March 27, 1979. The first Congress convened on May 10, 1979 and elected from its membership the nation's first President, Tosiwo Nakayama, and Vice President, Petrus Tun. The executive and legislative branches of this new government were then formed. Establishment of the judicial branch of the constitutional government of the Federated States of Micronesia followed, with the March 24, 1981 administration of oaths by President Nakayama in Truk to the two justices previously nominated by President Nakayama and confirmed by the Congress of the Federated States of Micronesia. The Supreme Court of the Federated States of Micronesia was certified as a "functioning court pursuant to the terms of the...Federated States of Micronesia Constitution" by Trust Territory High Court Chief Justice Harold Burnett on May 51 1981. This certification was in compliance with requirements of the Judiciary Act of the Federated States of Micronesia, Public Law 1-31, and Section 5 of Secretarial Order 3039 issued by the Secretary of the United States Department of the Interior on April 25, 1979.

^6. United States Department of Interior Secretarial Order 3039, April 25, 1979, codified at 1 T.T.C. 47. Authority of the Secretary of Interior of the United States to issue "Secretarial Orders" concern domestic affairs of the Federated States of Micronesia is traceable from the 1947 Trusteeship Agreement, which designated the United States as administering authority for the Trust Territory of the Pacific Islands, through a United States Congressional grant of authority to the United States President to establish a system of government for the Trust Territory, 48 U.S.C. Section 1618, to United States Presidential delegation of "responsibility for the administration of civil government in all of the Trust Territory" Executive Order No. 11021, May 8, 196.2, 3 C.F.R. 600 (1058-63 Comp.), 1 T.T.C. 20 to the Secretary of the Interior of the United States.

^7. The Satterfield memo was filed by the defendant with a November 17, 1981 TTPI dispatch sent to Interior through the U.S. State Department, seeking guidance. The memo appears to have been prepared in response to that request.

^8. The parties stipulated in open court, at the hearing on the motion to dismiss, that the various documents filed by both parties may be deemed authentic for purposes of this motion.

^9. Covenant to Form a Commonwealth of the Northern Mariana Islands In Political Union With the United States of America. Pub. L. No. 94-241, 90 Stat. 263, 48 U.S.C. § 1618 note.

^10. Department of Interior Secretarial Order No. 2918, 34 Fed. Reg. 169, Dec. 27, 1968.

^11. This list of categories for consideration in constitutional interpretation is not exhaustive. Additional sources my be helpful in certain circumstances. In yet other situations, it may be inappropriate to rely upon some or all of the authorities referred to here. In particular, we must bear in mind the "judicial guidance" provision of the constitution telling us that our decision must be consistent with the "customs and traditions, and the social and geographical configuration of Micronesia." FSM Const. art. XI, § 11. Thus, we must remain sensitive to the unique circumstances of the Federated States of Micronesia and may not slavishly follow interpretations of similar language by United States, Trust Territory, or other tribunals in different contexts. II J. of Micro. Con. Con. 821-22 SCREP No. 34 (1975).

^12. For example, a federal system of government, checks and balances, and separation of powers among three branches of government, and an enumeration of rights based upon those in the bill of rights of the Constitution of the United States.