The plea of Kwajalein landowners
Introduction
There appears to be a misunderstanding among the Marshallese public about the role of
Kwajalein landowners. This is most probably due to the lack of knowledge and
understanding about the long standing suffering that Kwajalein landowners have
experienced but which to date has not been addressed in a fair and just manner.
The objective of this article is to enlighten the general public in the Marshall Islands as well
as in the United States and the rest of the world about the injustice that the landowners have
suffered over the past fifty years or more. Briefly, this injustice arises from the fact that
Kwajalein landowners’ fundamental rights have been denied but no adequate compensation
has been paid for such denial. The situation is similar to that of the four atolls, specifically
of the Bikini Community. The Bikini Community was evacuated from their atoll for atomic
testing. One of the major forms of suffering of the Bikini Atoll has been that they have been
denied the use of their land and deprived of their traditional form of livelihood. While the
suffering of the Four Atolls has been addressed at least to some extent and is still being
addressed, that of the Kwajalein landowners has not been even brought to the attention of
the United States.
It is apparent, therefore, that what the landowners are asking for at this second time round is
not something new but a continuation of half-century struggle for what they believe to be
their just due. Irregular and ad hoc compensations over the pre-Compact periods and a
Compact agreement that failed to remedy their grievances and address compensation issues
have once again impelled them to renew the call and raise their voices for a fair and adequate
arrangement. As there does not seem to be any other alternative open to them, their voices
will continue to ring throughout the corridors of the RMI and U.S. as long as the injustices
remain unremedied.
This article is presented in the following order. Section 1 explains the major problems faced
by the Kwajalein land owners and the Marshallese community in Kwajalein Atoll and the
manner in which these problems have been created. Section 2 explains what a fair land rent
is and the fact that such a fair land rent is not being paid at present. The subject is discussed
on the basis of the fundamental rights guaranteed in the constitutions of the United States
and of RMI and on the basis of the standards adopted both internationally and by the U.S.
Federal Agencies. Section 3 explains the proposal made by the Kwajalein landowners to the
United States as a way of addressing the problems in a fair and just manner. Section 4
concludes the article with an appeal by the landowners.
1.
The problems and their genesis
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Following is the crux of the landowner grievance. In the years following the Second World
War, the Kwajalein landowners were forcibly evicted from their lands and forced to live in
the tiny island of Ebeye. The purpose was for the United States to build up its missile base in
Kwajlein Atoll. During the fifties Kwajalein military camp was used as a logistical base to
support the atomic testing program which the U.S. carried out in Bikini and Enewetak.
Kwajalein land was also used to provide a temporary home for the Bikini community who
were evacuated from their atoll. In 1964, when the missile testing program was taking shape,
the Marshallese communities living in the Mid-Corridor islands were also evacuated forcibly
and settled in Ebeye.
The forced uprooting of the Kwajalein Atoll landowners community in totality and using
their land for military purposes had two major types of adverse impact on the landowners
for which they are seeking fair and just compensation. The first type of adverse impact arose
as a result of their being uprooted from their lands and houses. The first and immediate
consequence under this category was the loss of lands and lagoon as the sources of
landowner livelihood. The second major consequence was that the landowners had to learn
to live under a completely alien form of livelihood in a cash economy. The third
consequence was the physical hardship in Ebeye which was a tiny island into which
thousands of people got crammed in. These hardships were due to lack of good housing,
inadequate water and sanitation inadequate electricity inadequate health facilities, inadequate
schools and loss of freedom. The second type of adverse impact was due to the fact their
lands and lagoon were being used for a new purpose. The missile program in addition to
attracting people from the rest of RMI to the already crowded Ebeye also results in
environmental damage and risks to the health and lives of Marshallese people.
2. a. A fair land rent: What is it?
First let us look at the suffering imposed on the landowners because they were forced out of
their lands. The most damaging consequence of this evacuation was that the landowners lost
their means of livelihood. For thousands of years the landowners made their livelihood from
their land and the lagoon. After their evacuation this was no longer possible. They were not
given an adequate compensation for their loss. They are seeking this now because half a
century of struggle has failed to bring justice to their legitimate cause.
After 1964 the landowners have been paid some compensation from time to time after
much pain and suffering which have included sail-ins and other forms of campaign which
also resulted in various painful consequences. The 1986 Compact provided a form of
payment which has been grossly inadequate in view of the increase in the cost of living in
Ebeye and in view of the increase in the landowner population. The price level today in
Ebeye is four times higher than what it was in 1986 and the landowner population is four
times higher than what it was in 1986. The payment under the 1986 Compact is so
unsatisfactory that in real terms the per capita land rent payment in 2001 was only 38 percent
of what it was in 1986. In the year 2016 which is the end of the option, it will only be 17
percent of what it was 1986. While on a per capita basis the real value of the land rent is
declining rapidly every year, the value of Kwajalein land to the U.S. either remains the same
or continues to rise.
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The current land rent paid to the landowners has not been determined on any rational
ground. The Kwajalein landowners through a study funded by their voluntary financial
contributions have established such a rational basis. This basis is founded upon the
principles enshrined in the Constitutions of the United States and the RMI. The basis
follows the practices adopted by the U.S. Federal Government Agencies and by the
international community.
2. b. Rights Enshrined in the RMI and U.S. Constitutions
The Constitutions of the United States provides as follows: “nor shall private property be
taken for public use without just compensation” (Fifth Amendment). The RMI constitution
provides as follows: “Before any land right or any other form of private property is taken,
there must be a determination by the High Court that such taking is lawful and an order by
the High Court providing for prompt and just compensation”. The RMI constitution adds as
follows: “Where any land rights are taken, just compensation shall include reasonably
equivalent land rights for all interest holders or the means to obtain the subsistence and benefits that
such lands provide” (Emphasis added).
Having been deprived of their traditional means of livelihood, the landowners were forced
to face a second form of suffering. This is the second consequence that comes under the
first major type of adverse impact referred to earlier, i.e. the impact due to being evicted
from their lands. The second consequence was that the landowners were forced to lead a
form of life that was very much alien to them, namely to live in a cash economy. They were
huddled into hurriedly constructed shacks on Ebeye where the only means of life support
was cash. They were given a cash allowance that was hardly sufficient to meet their cost of
living. For example 194 landowners among the Mid-Corridor community were paid a living
allowance which amounted to $25 per person per month in 1964. It was so inadequate that
they had to petition the Congress of Micronesia of their plight. Two years later that amount
was increased to $40 per person per month. This amount worked out to an annual payment
of $480.00.
In this regard it is important to note the following provision in the RMI Constitution. “
Whenever the taking of land rights forces those who are dispossessed to live in
circumstances reasonably requiring a higher level of support, that fact shall be considered in
assessing whether the compensation provided is just” ( Title II, Section 5 (6)). Furthermore,
“In constructing this section, a court shall have due regard to the unique place of land rights
in the life and law of the Marshall Islands” (Title II, Section 5(5)).
The importance of a right of a person to fair and just compensation for his/her private land
was fully recognized in the Bill of Rights of the Trusteeship Agreement in the following
words: “no person shall be deprived of… property without just compensation”. It was also
given full recognition in the Trusteeship Agreement itself in the following words.
‘in discharging its obligations under article 76(b) of the Charter the administering authority
shall:
… protect the inhabitants against the loss of their lands and resources…”
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2. c. U.S. Federal Standards and International Standards of fair rent
The Study undertaken by the landowners established a rational basis for determining a fair
and just compensation for the Kwajalein lands now being used for the U.S. missile base by
following the standard adopted by the U.S. Federal Agencies in order to acquire or lease
lands. That standard is as follows. Fair compensation for any land acquired or leased is a
payment that adequately reflects the highest and best alternative use of the land so acquired
or leased.
This principle has also been well established in respect of land acquisition for public sector
sponsored private sector projects. Closer to home in Papua new Guinea where land has been
taken over by private companies through the sponsorship of the national government for
mining and petroleum industries compensation has been paid on the principle on which
“fairness to all parties prevails unconditionally”. All compensation for the landowners has
been determined and paid on the following basis. “…the purpose of compensation is to put
persons who have suffered a loss back in the original position they would have been in, if
they had not suffered the loss” and “those who cause the loss to those who suffer it pay
compensation and the amount of compensation is the replacement value of that loss”. In
this case compensation was determined on the following principle. “…the amount of
compensation should be determined purely by the value of the thing damaged, rather than the negotiating skills
of the landowners, or the organization’s ability to pay” (emphasis added)
It is the view of the landowners that these standards provide the floor level for determining
fair compensation for Kwajalein land. For, as the RMI constitution provides and commonly
accepted by the Marshallese people, the value of land of his/her land to a Marshallese
person is much more than what is reflected in the Western concept of private property.
2. d. Value of land to the Marshallese
Numerous statements by Marshallese traditional chiefs as well as common people as well as
from U.S. anthropologists can be quoted here to illustrate this point. It would suffice to
make just three quotations. In a petition submitted to the U.N. Trusteeship Council on April
20, 1954, the Bikini community stated as follows: “land means a great deal to Marshallese. It
means more than just a place where you can plant your food crops and build your houses; or
a place where you can bury your dead. It is the very life of the people. Take away their land
and their very spirits go also…” One time District Anthropologist of the TTPI, the well
known anthropologist Jack Tobin described the value of land in the Marshallese context as
follows: “… the Marshallese system of land tenure provides for all eventualities and takes
care of the needs of all members of the Marshallese society. It is, in effect its social security.
Under normal conditions no one needs to go hungry for lack of land from which to draw
food. There are no poor houses or old people’s homes in the Marshall Islands. The system
provides for all members of the Marshallese society, each of whom is born into land rights”.
In a recent study commissioned by the Public Advocate of the Nuclear Claims Tribunal,
authors Barbara Rose Johnston, Ph.D. and Holly M. Barker Ph.D. have explained the value
of land to the Marshallese as follows: “In the Marshall Islands land is not a commodity that
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can be bought or sold but an integral component in the ‘natural capital’ that sustains a way
of life. In Western property law, loss of land means loss of income. But for the Marshallese,
loss of land represents the loss of the means to sustain social institutions, to reinforce
kinship systems and to survive and thrive as a self-sufficient entity. And, while Marshallese
generally refer to inherited rights as ‘land rights’--- land includes the lagoon, reefs, clam beds
and broader atoll ecosystems as well as the marine arboreal and terrestrial life within…”.
2. e. Minimum Fair land rent based on Western Concept
Based on the Western concepts given above (which as stated earlier is only a floor level), the
landowners adopted a number of approaches to arrive at a fair and just compensation for
their lands leased to the U.S. These approaches included the following.
1.
2.
3.
4.
5.
The monthly per capita living allowance paid by the United States to the MidCorridor land owners in the sixties;
Past land rent payments;
Recent market trends in Majuro
Compact payments fully adjusted for inflation on Ebeye and land owner
population growth; and
Rent for both the land and the lagoon
In these approaches the landowners took into consideration the method adopted by the land
value appraisal study submitted to the Nuclear Claims Tribunal by the Bikini Atoll
Community.
Based on this analysis the landowner study shows that the minimum fair land rent that the
Kwajalein landowners should have received in the year 2001 was in the range of $ 14.7
million to $28.4 million. The actual payment in 2001 including the $1.9 million KADA
payment was about $12.7 million. However, when the payment to KADA is subtracted, the
land rent that was received by the landowners as a means of livelihood was only about $8.6
million. This amount is 59 percent of the lower end of the estimated range of fair rent and
30.3 percent of the higher end of the estimated fair rent range.
It is important to note the following in regard to the land rent paid under the 1986 Compact.
A substantial proportion or 40 percent of the gross land rent paid from Section 211
payments is not received by the landowners as disposable income but is siphoned away to
the KADA. It should be understood that the problems in Ebeye were the other major type
adverse consequences resulting from the forced evacuation of the landowners and the use of
their land for military purposes. Hence they were not problems created by the landowners.
They were the spillover adverse effects of the U.S. activities in Kwajalein Atoll. The solution
of those problems is the responsibility of the United States and the financial burden of such
solution must fall squarely on the shoulders of the United States and not on the landowners
who have already paid a price twice over by losing their land and by going through the
suffering in Ebeye. When this position is accepted it is quite clear that 40% land rent
siphoned away to KADA is virtually a tax imposed by the U.S and the RMI governments on
the landowners to deal with a situation which in the first place was NOT created by the
landowners. The landowners are penalized not once, not twice but three times over.
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A simple way to point out that the effective land rent received by Kwajalein landowners
under the 1986 Compact is not a fair and just rent, is the following. It could be argued that
as a very basic minimum, a fair rent for Kwajalein land can be established on the basis of the
following line of argument. A fair rent for the land is the value of the highest and best use
of such land. If the Kwajalein land was not used for U.S. military purposes such land would
have been used by the land owners to create an income to make a living. What would be the
value of that income? The estimate of that income would be a good indicator of the
minimum fair rent for land. One way to measure the value of such income is the following.
In 1966 a living allowance of $480 per person per year was paid out by the U.S. authorities to
the Mid-Corridor landowners.
The assumption here is that according to U.S. authorities this amount was sufficient the
cover the cost of living of one person per year in 1966. In other words, it was considered as
cash economy equivalent of the value of subsistence income that the landowners would have
generated from their own land. In order to estimate the minimum fair land rent today, the
above amount has to be converted to current dollars.
Using the U.S. and RMI official figures of inflation, the value of that amount in 2001 dollars
was $2352. This is an estimate of the value of the subsistence income that one landowner
would have created in the year 2001. In order to estimate the value of the total income
created by the landowner community as a whole, this amount has to be multiplied by the
number of landowners in 2001. The estimated number of landowners in 2001 was 12063.
Multiplying this number by $2352 we derive an estimated total value of subsistence
production of $28.4 million. This is an estimate of the minimum fair rent that the
landowners should have received in their hands as disposable income. As earlier mentioned,
the actual land rent received by the landowners in 2001 was about $8.6 million which was
only about 30.3 percent of the estimated minimum fair rent.
3. a. The Kwajalein Landowners’ Proposal to the United States
The landowners in their proposal for a 50 year lease of Kwajalein land to the United States
has asked for an upfront payment as fair rent for their land for that period. That amount was
derived in the following manner. The estimates derived by the five methods described above
were averaged for the year 2001. Then that average was used to derive a stream of land rent
payments for the next fifty years on a current year basis by providing for an annual inflation
rate of 4.0 percent and an annual population growth rate of 3.5 percent. The current year
basis stream of payments thus derived was next discounted at 5.3 percent (prevailing 30-U.S.
Bond rate) to derive the present value of that stream.
Considering the principles involved, the long time period for which the land will be used,
this amount is quite reasonable. Moreover, the money will go a long way in improving the
living conditions of the landowners whose per capita income at present is around $1577.
Those who are familiar with the landowners’ proposal will recognize that a very substantial
amount of the compensation is to be distributed for the benefit of the non-titled
landowners, elevating thereby their per capita income. That new level which will be a
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significant improvement on the landowners’ present pitifully low income will still be
marginally below the U.S. basic minimum wage.
3. b. Adverse Environmental Impact and Risks
Another major landowner concern relates not merely to the landowners but for every
Marshallese citizen living in Kwajalein Atoll and in the neighboring Atolls. There has been a
continuing concern about the adverse environmental impact of the Kwajalein missile testing
program among Marshallese leadership. But assurances have been given all along by the U.S.
authorities that there is no serious adverse environmental impact resulting from the missile
testing program. Every year the U.S. army produces and submits to the RMI government.
EIA reports that seem to show no serious adverse consequences. However these EIA
reports are not verified by competent third party scientists. To have such evaluations done is
too costly and beyond the financial capability of both the RMI Government and the
landowners.
In a report initiated by the U.S. Air Force, Space and Missile Systems center and Aerospace
Corporation in 2001 shows that DoD launch sites can be impacted by perchlorate releases
from missile launch operations. The U.S. EPA has declared perchlorate ion (C104) as a
contaminant and that it can exist for decades under typical groundwater or surface water
conditions. Perchlorate contamination can lead to thyroid and can harm the health of
children and pregnant women.
The landowner proposal is requesting $6 million annually from the U.S. to fund third party
evaluation of the EIA reports prepared by the Army to be undertaken by competent
scientists. Such funds will also be earmarked for any repair of damages caused by adverse
environment impact and to meet the cost of any clean-up operations that might be needed.
The landowner Proposal also requests that the U.S provides adequate funding to pay for
annual insurance of life and property in Kwajalein Atoll as a means of insuring the lives and
property of the Marshallese community against possible accidents that might result from the
missile testing program. These programs will benefit the entire Marshallese community in
Kwajalein atoll and not just the landowners.
3. c. Consequential Damages and Problems of Ebeye
Two major problems faced by the landowners are the following. As a result of being
dispossessed of their lands, the landowners have suffered in two ways. Firstly they were
deprived of their traditional, communal way of life freedom and culture. These losses and
deprivations are tantamount to a loss of such magnitude that the evaluation of the loss in
monetary terms is virtually impossible. Secondly, the landowners had to undergo immense
suffering not only because they had to get used to an entirely new way of life dependent on a
cash economy but also because many physical hardships were created because of the lack of
good housing, infrastructure services, health and sanitation services. These problems came
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to be compounded and shared by the influx of outsiders to Ebeye in search of jobs in
Kwajalein missile range.
The problems created in Ebeye were never resolved by the U.S. despite the many promises.
Hence the landowners have requested in their Proposal for funding by the United States to
solve these socio-economic problems once and for all.
The purpose of the landowners’ proposal to the U.S. is to seek a permanent solution to the
problems of the entire Marshallese community in the Kwajalein Atoll and not just those of
the landowners. The landowners are asking that the consequential damages that are due to
the landowners be dedicated totally for providing the needed infrastructures, housing,
education, health services and for economic development aimed at increasing income and
job opportunities. These programs will benefit over 20 percent of the population of RMI.
4.
Where do we go from here?
The landowners make the following appeal.
1.
They appeal to the people of the RMI to understand the plight of the landowners in
its proper perspective. There has been a historical injustice suffered by the Kwajalein
landowners similar to those suffered by the four atolls, especially Bikini Atoll but which has
not been addressed thus far. The landowners believe that the correction of this injustice is
tantamount to doing justice by the entire population of RMI. It will be a landmark in our
progress towards sovereignty and self-reliance. It will bring substantive real benefits not just
to the landowners but also to a large proportion of RMI population in Kwajalein Atoll, the
surrounding Atolls. It will also assist substantially the rest of RMI population by relieving the
financial burden of the national government of having to spend its scarce capital resources
on Ebeye. The resources thus released can be diverted to the development of the remaining
atolls in RMI.
2.
The landowners appeal to the RMI Government to submit their proposal to the U.S
Government officially with its own recommendation.
3.
The landowners appeal to the U.S Government, the U.S. Congress and the U.S.
citizens for an understanding of the injustice suffered by the landowners and to take
adequate measures to rectify this injustice.
4.
The landowners have full faith in the good judgment and the sense of fairness in the
U.S. legislature, Executive, the Judiciary and the general public. This amply proven by the
numerous cases in which fair compensations has been awarded by the U.S. Courts to the
injured parties.
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