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July 19, 1977.

Memorandum to: Hon. John Murphy.

(Attention to Bernard Tannenbaum/Terry Modglin.) From: American Law Division.

Subject: Role of the House of Representatives in the disposition of U.S. property in the Panama Canal Zone to Panama: Negating arguments denying applicability of article IV.

This report is forwarded in response to your request for information on the above mentioned subject. It supplements previous memoranda from this Division to your office on the same subject.

The material presented makes five major points.

(1) The status of the American Indian interest in land in the United States is unique, and the transfer of that interest by treaty is not at all analogous to the transfer of property in the Canal Zone to a foreign sovereign nation.

(2) In view of the unique nature of the Indian's interest, it may be argued that a disposition in the Article IV sense was never made or even contemplated. (3) Even if the transfer of interest effected by treaty be considered a "disposal", it was a disposal recognized by Congress, and that body seems to have delegated to the executive its exclusive right to dispose of property. That delegation is validated by its acquiescence to Executive action over a considerable period of time.

(4) By the 1860's, Congress had withdrawn its acquiescence to the transfer of property interests by treaty. Its disavowal of that procedure was clear, and the Senate, despite vocal opposition, assented to the House position on this matter.

(5) It has been the consistent practice of past administrations to obtain the consent of the House prior to transferring property in the Canal Zone to Panama. This express acknowledgement of the role of the House of Representatives in the disposal of federal property to Panama should be considered as the primary and overriding factor in determining the requirements of Article IV, Section 3, clause 2 of the Constitution as it impacts on the present situation.

Legislative Attorney.



It is contended that self-executing treaties have conveyed title to the Indian tribes, and that this practice supports the proposition that the assent of the House is not needed to effect the conveyance of property in the Canal Zone to Panama. It is our belief, however, that an analogy between recognition by treaty of Indian rights in land, and the disposal of property to a foreign nation, constitutes questionable use of precedent in constitutional interpretation. Two factors lead to this conclusion. First, the unique status of Indian tribes in this country and the principles of land ownership law relevant to their reservations, differentiates the actions of the Executive in Indian treaties from the actions involved in the cession of land to a foreign sovereign power. Second, the specific practice (transfer in interest by treaty) relied on to sustain disposal of the Canal Zone by treaty, was specifically repudiated by the House and Senate over a century ago.

A. Unique status of the Indians

It has long been recognized that:

"The relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to the people of the United States has always been an anomalous one and of a complex character." (United States v. Kagama 118 U.S. 375, 381 (1886)).


"Anomalous" and "complex" are certainly proper adjectives to be used in describing the nature of the interest in property possessed by the American Indians. In Johnson and Graham's Lessee v. McIntosh 8 Wheaton (21 U.S.) 543 (1823), Chief Justice Marshall described how the European countries, in order to establish a right of acquisition so as to limit contests among themselves, decided that "discovery" gave title to the sovereign of the explorer-title that was good against the title alleged by any other European nation. As to the Indians:

"In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy."

As a result of the Revolutionary War, the newly independent States acquired all of the rights to the soil formerly possessed by the Crown.

"The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise.

"The power now possessed by the government of the United States to grant lands, resided, while we were colonies, in the crown, or its grantees. The validity of the titles given by either has never been questioned in our Courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power must negative the existence of any right which may conflict with, and control it. An absolute title to lands cannot exist, at the same time, in different persons, or in different governments. An absolute, must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognise the absolute title of the crown, subject only to the Indian right of occupancy, and recognise the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians." (Id. at 587-588.)

What result did this theory have on the status of the Indian?

"That law which regulates, and ought to regulate in general, the relations between the conqueror and conquered, was incapable of application to a people under such circumstances. The resort to some new and different rule, better adapted to the actual state of things, was unavoidable. Every rule which can be suggested will be found to be attended with great difficulty.

"However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice." (Id. at 591-592.)

In Worcester v. Georgia 6 Pet. (31 U.S.) 515, 558 (1832), Chief Justice Marshall acknowledged that the Indians were a distinct people, were the equivalent of nations, and had been dealt with by treaty.

"The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed; and this was a restriction which those European potentates imposed on themselves, as well as on the Indians. The very term 'nation,' so generally applied to them, means 'a people distinct from others.' The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words 'treaty' and 'nation' are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense."

Although it was recognized that we would conclude treaties with the Indians as sovereigns, it soon became clear that they were, in fact, something less than sovereign in their relationship to the United States. In the case of Jones v. Mechan 175 U.S. 1, 10 (1899) the Court described their status in these words:

"The Indian tribes within the limits of the United States are not foreign nations; though distinct political communities, they are in a dependent condition; and Chief Justice Marshall's description, that they are in a state of pupilage,' and 'their relation to the United States resembles that of a ward to his guardian,' has become more and more appropriate as they have grown less powerful and more dependent." (Cherokee Nation v. Georgia, 5 Pet. 1, 17; Elk v. Wilkins, 112 U.S. 94, 99; United States v. Kagama, 118 U.S. 375, 382, 384; Stephens v. Choctaw Nation, 174 U.S. 445, 484.)

Other courts described the Indian tribes as "separate nations," "domestic dependent nations," "distinct political communities," "limited dependent sovereignties," and "quasi-sovereign governments." One of the most comprehensive analyses of their status is found in Cherokee Nation v. Southern Kansas Railway Co. 135 U.S. 641 (1890).

"The proposition that the Cherokee Nation is sovereign in the sense that the United States is sovereign, or in the sense that the several States are sovereign, and that that nation alone can exercise the power of eminent domain within its limits, finds no support in the numerous treaties with the Cherokee Indians, or in the decisions of this court, or in the acts of Congress defining the relations of that people with the United States. From the beginning of the government to the present time, they have been treated as 'wards of the nation,' 'in a state of pupilage,' 'dependent political communities,' holding such relations to the general government that they and their country, as declared by Chief Justice Marshall in Cherokee Nation v. Georgia, 5 Pet. 1, 17, 'are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connection with them, would be considered by all as an invasion of our territory and an act of hostility." (Id. at 653-654.)

Many courts have asserted that a guardian/ward relationship exists between the United States and the Indian tribes. "Their relation to the United States resembles that of a ward to his guardian." Cherokee Nation v. Georgia 5 Pet. (30 U.S. 1, 16 (1831). The courts have continually sustained those sentiments. Choctaw Nation v. United States 119 U.S. 1, 27 (1886); Klamath Indians v. United States 296 U.S. 244, 254 (1935); Seminole Nation v. United States 316 U.S. 286, 296-297 (1942); and most recently, Joint Tribal Council of Passamaquoddy Tribe v. Morton 528 F.2d 370, 375-380 (1st Cir. 1975). Since a guardian has certain rights and responsibilities that he must exercise in his ward's behalf, this relationship is indicative of the less than sovereign status of the tribes. The NonIntercourse Act (1 Stat. 137, originally passed in 1790, and currently codified at 25 U.S.C. 177) limits the situations in which an Indian can transfer tribal lands to those situations when the grant is effected ". . . by a treaty or convention entered into pursuant to the Constitution." That Act is also indicative of the trust relationship that exists between the U.S. Government and the Indians. B. Affect of treaties on title

Many treaties provided that the Indians had a right to continue living on their tribal lands; the title thus recognized was Indian Title. Although that title was to be respected by all other Indian tribes, by private citizens and by the States, ultimate federal power over the land was acknowledged.


'Unquestionably it has been the policy of the Federal Government from the beginning to respect the Indian right of occupancy, which could only be interfered with or determined by the United States.' Cramer v. United States, 261 U.S. 219, 227. This policy was first recognized in Johnson v. M'Intosh, S Wheat. 543, and has been repeatedly reaffirmed. Worcester v. Georgia, 6 Pet. 515; Mitchel v. United States, 9 Pet. 711; Chouteau v. Molony, 16 How. 203; Holden v. Joy, 17 Wall. 211; Buttz v. Northern Pacific Railroad, supra; United States v. Shoshone Tribe, 304 U.S. 111. As stated in Mitchel v. United States, supra, p. 746, Indian 'right of occupancy is considered as sacred as the fee simple of the whites.' Whatever may have been the rights of the Walapais under Spanish law, the Cramer case assumed that lands within the Mexican Cession were not excepted from the policy to respect Indian right of occupancy.

"Extinguishment of Indian title based on aboriginal possession is of course a different matter. The power of Congress in that regard is supreme. The manner, method and time of such extinguishment raise political, not justiciable, issues. Buttz v Northern Pacific Railroad, supra, p. 66. As stated by Chief Justice Marshall in Johnson v. M'Intosh, supra, p. 586, "the exclusive right of the United States to extinguish" Indian title has never been doubted. And whether it be done by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise, its justness is not open to inquiry in the courts. Beecher v. Wetherby, 95 U.S. 517, 525." (United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 345, 347 (1941).

An earlier court had described the situation in this manner:

"Now, it is true that in decisions of this court, the Indian right of occupancy of tribal lands, whether declared in a treaty or otherwise created, has been stated to be sacred, or, as sometimes expressed, as sacred as the fee of the United States in the same lands. Johnson v. McIntosh, (1823) S. Wheat. 543, 574; Cherokee Nation v. Georgia, (1831) 5 Pet. 1, 4S; Worcester v. Georgia, (1832) 6 Pet. 515, 581; United States v. Cook, (1873) 19 Wall. 591, 592; Leavenworth &c. R. R. Co. v. United States, (1875) 92 U.S. 733, 755; Beecher v. Wetherby, (1877) 95 U.S. 517, 525. But in none of these cases was there involved a controversy between Indians and the government respecting the power of Congress to administer the property of the Indians. The questions considered in the cases referred to, which either directly or indirectly had relation to the nature of the property rights of the Indians, concerned the character and extent of such rights as respected States or individuals. In one of the cited cases it was clearly pointed out that Congress possessed a paramount power over the property of the Indians, by reason of its exercise of guardianship over their interests, and that such authority might be implied, even though opposed to the strict letter of a treaty with the Indians. Thus, in Beecher v. Wetherby, 95 U. S. 517, discussing the claim that there had been a prior reservation of land by treaty to the use of a certain tribe of Indians, the court said (p. 525) :


"But the right which the Indians held was only that of occupancy. The fee was in the United States, subject to that right, and could be transferred by them whenever they chose. The grantee, it is true, would take only the naked fee, and could not disturb the occupancy of the Indians; that occupancy could only by interfered with or determined by the United States. It is to be presumed in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race. Be that as it may, the propriety or justice of their action towards the Indians with respect to their lands is a question of governmental policy, and is not a matter open to discussion in a controversy between third parties, neither of whom derives title from the Indians.'" (Lone Wolf v. Hitchcock, 187 U.S. 533, 564-565, (1903).)

Indian title, or "aboriginal title," or "right of occupancy" was the original, or basic, source of Indian right in the land. However certain tribes later received a fee simply title:

"The right of occupancy was originally the sole title of the Indian to the land, but later, in consideration of cessions of lands, title in fee simple was passed to certain tribes, particularly the Cherokees, Chickasaws, Choctaws, Creeks, and Seminoles. This was not in conflict with the original principle that the primary title of the Indian was confined to occupancy. It merely indicated that the government considered it good policy to pass a title in fee to land which it already held in fee and to which the original Indian right of occupancy had been extinguished. Most of these fee grants to the tribes, however, contained a provision that the fee should revert to the United States if the tribe became extinct. Still later, when the principle of allotment in severalty was adopted and the land divided

among the individual Indians, the tribal title was extinguished and titles in fee passed to the individuals of the tribe. This process is still going on, the patent being held in trust by the government if the Indian is incompetent to manage his affairs." (The Office of Indian Affairs, Laurence Schmeckebier, AMS Press, 1927, pgs. 5-6.)

However, even rights held in fee by the Indian tribes as the result of treaties were still subject to the control of the United States Government:

"By the treaty of New Echota, 1835, the United States covenanted and agreed that the lands ceded to the Cherokee Nation should at no future time, without their consent, be included within the territorial limits or jurisdiction of any State or Territory, and that the government would secure to that nation 'the right by their national councils to make and carry into effect all such laws as they may deem necessary for the government of the persons and property within their own country, belonging to their people, or such persons as have connected themselves with them;' and, by the treaties of Washington, 1816 and 1866, the United States guaranteed to the Cherokees the title and possession of their lands, and jurisdiction over their country. Revision of Indian Treaties, pp. 65, 79, 85. But neither these nor any previous treaties evinced any intention, upon the part of the government, to discharge them from their condition of pupilage or dependency, and constitute them a separate, independent, sovereign people, with no superior within its limits. This is made clear by the decisions of this court, rendered since the cases already cited.

"In view of these authorities, the contention that the lands through which the defendant was authorized by Congress to construct its railway, are held by the Cherokees as a sovereign nation, without dependence on any other, and that the right of eminent domain within its territory can only be exercised by it, and not by the United States, except with the consent of the Cherokee Nation, cannot be sustained. The fact that the Cherokee Nation holds these lands in fee simple under patents from the United States, is of no consequence in the present discussion; for the United States may exercise the right of eminent domain, even within the limits of the several States, for purposes necessary to the execution of the powers granted to the general government by the Constitution. Such an authority, as was said in Kohl v. United States, 91 U.S. 367, is essential to the independent existence and perpetuity of the United States, and is not dependent upon the consent of the States. United States v. Fox, 94 U.S. 315, 320; United States v. Jones, 109 U.S. 513; United States v. Great Falls Manufacturing Co., 112 U.S. 645; Van Brecklin v. State of Tennessee, 117 U.S. 151, 154. As was said by Mr. Justice Bradley in Stockton v. Baltimore &c. Railroad, 35 Fed. Rep. 9, 19: "The argument based upon the doctrine that the States have the eminent domain or highest dominion in the lands comprised within their limits, and that the United States have no dominion in such lands, cannot avail to frustrate the supremacy given by the Constitution to the government of the United States in all matters within the scope of is sovereignty. This is not a matter of words, but of things. If it is necessary that the United States government should have an eminent domain still higher than that of the State, in order that it may fully carry out the objects and purposes of the Constitution, then it has it. Whatever may be the necessities or conclusions of theoretical law as to eminent domain or anything else, it must be received as a postulate of the Constitution that the government of the United States is invested with full and complete power to execute and carry out its purposes." It would be very strange if the national government, in the execution of its rightful authority, could exercise the power of eminent domain in the several States, and could not exercise the same power in a Territory occupied by an Indian nation or tribe, the members of which were wards of the United States, and directly subject to its political control. The lands in the Cherokee territory, like the lands held by private owners everywhere within the geographical limits of the United States, are held subject to the authority of the general government to take them for such objects as are germane to the execution of the powers granted to it; provided only, that they are not taken without just compensation being made to the owner." (Cherokee v. Kansas 175 U.S., supra, at 654, 655–657.)

And in Tee-Hit-Ton Indians v. United States 348 U.S. 272, 288-289 (1955), the court noted that:

"The line of cases adjudicating Indian rights on American soil leads to the conclusion that Indian occupancy, not specifically recognized as ownership by action authorized by Congress, may be extinguished by the Government without compensation."

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