(concurring).
I fully concur in Judge GALSTON’s opinion but also place reliance on additional considerations. As was recognized in Cobb v. United States, 9 Cir., 191 F.2d 604, whether the Pacific Islands are a “foreign country” within the meaning of the Federal Tort Claims Act is a question of considerable difficulty. But whether the problem is reached by the common-sense approach advocated by Judge Pope in his concurring opinion in the Cobb case (which strongly appeals to me) or by the more legalistic approach of the majority opinion, the result here is the same. For if Okinawa was properly classified as a “foreign country” notwithstanding the unlimited power of the United States which had occupied and thereafter (until the date of the Cobb decision) maintained absolute control of the island by force of arms, a fortiori is Kwajalein a foreign country. For the comparable power which the United States had acquired over Kwa-jalein was voluntarily translated into a fiduciary responsibility to the United Nations which carried specified accountability to its Security Council through an express trust agreement, 61 Stat. 3301, approved by the Joint Eesolution of Congress of July 18, 1947, c. 271, 61 Stat. 397, Historical Note to § 1435 of Title 48 U.S.C.A.
By the terms of this trust agreement the United States became the “administering authority of the trust territory,” which included Kwajalein, Article 2, and as such was to have “full powers of administration, legislation, and jurisdiction over the territory subject to [see Article 6] the provisions of this agreement, and may apply to the trust territory * * * such of the law of the United States as it may deem appropriate to local conditions and requirements.” Article 3. However, Article 6 provided that the administering authority “shall give due recognition to the customs of the inhabitants in providing a system of law for the territory * * *.” Article 11 provided that “the administering authority shall take the necessary steps to provide the status of citizenship of the trust territory for the inhabitants of the trust territory.” And by Article 13 the United States agreed that subject only to security restrictions, Articles 87 and 88 of the United Nations Charter (59 Stat. 1050-1) should be applicable under which it was provided that the administering authority (the United States) would annually submit to the Security Council, under its direction, annual reports on the “political, economic, social, and educational advancement of the inhabitants of the trust territory ”
In view of the foregoing outline of the powers and responsibilities of an administering authority of the mandated islands, it seems clear that as to Kwa-jalein sovereignty did not devolve upon the United States. The limited functions and the supervised responsibilities which it assumed under its trust agreement were fundamentally incompatible with sovereign status.
“In spite of the unsolved question of exactly where sovereignty over mandated territories and over trust territories rests, there is general agreement with respect to certain aspects of the question. In the first *842place, there seems to be general concurrence with respect to the present trust territories, as there was with respect to mandated territories, that wherever sovereignty does rest it is not with the administering power. This view has been reenforced by statements of the United States, the United Kingdom and Australia as administering authorities of trust territories. Each of these has stated on separate occasions that it does not regard its administration of the trust territory as implying any claim of sovereignty.” Francis B. Sayre, “Legal Problems Arising From the United Nations Trusteeship System,” 42 Amer.J.Int’l Law 269, 271.
The same considerations go far to persuade me that within the meaning of the Federal Tort Claims Act, even if applicability of that Act depends on factors other than United States sovereignty over the place of the delict, Kwa-jalein is a foreign country. Other considerations add persuasive corroboration to that conclusion. In its 8th Annual Report to the Security Council pursuant to Article 88 of the United Nations Charter, the United States declared that the inhabitants of the trust territory of the Pacific Islands were citizens thereof and might acquire United States citizenship in the same manner as other immigrants to the United States. By the President’s Proclamation, No. 2980, of June 30, 1952, 17 F.R. 6019, July 4, 1952, published beneath 8 U.S.C.A. § 1151, under § 201(b) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1151(b), “Pacific Islands (trust territory, United States administered)” was assigned an immigration quota. This assignment was in conformity with the definition of § 101 of said Act, 8 U.S.C.A. § 1101, that “ * * * territories under mandate or trusteeship shall be regarded as separate foreign states.” Cf. Hichino Uyeno v. Acheson, D.C., 96 F.Supp. 510, 515. That natives of Kwajalein are thus classified with natives concededly “foreign” and treated as aliens for purposes of our immigration laws, is a factor which strongly suggests that that island comes within the purview of a “foreign country” as that term was used in the Tort Claims Act. Moreover, the distant location of the island, its customs and the ethnic strain and language of its natives, are further factors which, I think, in the absence of cession or de jure annexation1 tend to bring it within the ordinary American concept of a “foreign country.”
I find no precedent whatever for reversing the decision below. On the other hand, in addition to the cases we have cited Burna v. United States, 4 Cir., 240 F.2d 720, lends powerful support to Judge Byers’ thoughtful opinion below. I agree with the rationale of the opinion in that case. That the administration of Kwajalein by the United States was under international trusteeship is a fact which does not remove this case from the reach of the Burna opinion.
. Cf. Downes v. Bidwell, 182 U.S. 244, 346, 21 S.Ct. 770, 45 L.Ed. 1088.