But a Washington, D.C.-based attorney for the Bikini islanders said Friday after the decision that the ruling does not exonerate the U.S. government for removing the islanders from their homeland and leaving the atoll uninhabitable after 23 nuclear weapons test.
A three-member panel of judges from the United States Court of Appeals for the Federal Circuit on Friday upheld a lower courts ruling dismissing claims filed in 2006 by the people of Bikini and Enewetak, the sites of 67 American nuclear tests from 1946 to 1958. The two atolls had been awarded more than $1 billion for hardship, loss of use and clean up by the Nuclear Claims Tribunal, a body created by a 1986 test settlement agreement with the U.S. government. But the Tribunal lacked funds to pay the award and the two communities sought U.S. court action to force the U.S. government to pay the compensation.
The appeals court said the 1986 settlement agreement between the U.S. and Marshall Islands governments was approved by the U.S. Congress and, in providing a $150 million trust fund for nuclear compensation, removed U.S. judicial jurisdiction with the provisions that this compensation constituted “the full settlement of all claims, past, present and future” and “no court of the United States shall have jurisdiction to entertain such claims.”
“It is indeed sad that the Court of Appeals for the Federal Circuit has closed its doors to the people of Bikini,” said Bikini attorney Jonathan Weisgall. “Its action, however, neither removes nor exonerates America’s stain of displacing the people of Bikini more than 60 years ago, rendering the atoll uninhabitable as a result of 23 atomic and hydrogen tests, and then using the atoll to help win the Cold War but taking completely inadequate measures to clean up the islands.”
The American judges did suggest the case had merit, but they couldnt get past the jurisdiction barrier.
“This court observes that its sense of justice, of course, makes it difficult to turn away from a case of constitutional dimension,” the judges wrote in the nine-page decision. “However, the same sense of justice recognizes that this court cannot act without jurisdiction. In sum, this court cannot hear, let alone remedy, a wrong that is not within its power to adjudicate.”
Weisgall said the judges ignored the U.S. Constitution with this statement.
“That seemingly well-intentioned statement ignores the very simple fact that the Fifth Amendment to the Constitution is self-executing, and Congress therefore does not need to grant jurisdiction to the court for a legal action seeking to enforce the Constitution,” he said. The Fifth Amendment bars the taking of property without compensation.
The affirmation of the dismissal of the Bikini and Enewetak claims virtually ends any hope of success through the U.S. courts. “The historical success rate (for appeals to the full Court of Appeals for the Federal Circuit or to the U.S. Supreme Court) runs at about one percent,” Weisgall said.
But, he said, the Bikinians are not giving up. “This odyssey will not end until the people of Bikini are back living safely on their islands,” he said. “The people will therefore continue to seek justice from the other branches of the U.S. government.”
