After the Senate and House Conferees had agreed to the final form of the legislation, (and prior to passage of the bill), members of the House discussed its significance:

"Mr. SARGENT. Mr. Speaker, I call the attention of the House to the fact that the contest which has now proceeded for some five or six years over the question whether the Senate had the right, or should continue to exercise the power, to make treaties with the scattered bands of Indians within our own territory has been yielded by the Senate by the result of the committee of conference now reported to the House, the Senate having agreed to that report. We have incorporated in the bill, with the consent of the Senate, these words:

“That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: Provided, That nothing herein contained shall be considered to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe.

"I think it is a matter of congratulation for the House that this result has been attained. The consequences will be far reaching. It will save millions of money to the Treasury. It breaks up a most improvident system, and admits the right of the House of Representatives to deal with these questions by legislation. The amendment which is incorporated in the bill came from the Indian Committee, and was proposed to be incorporated in another bill. It was drawn, I believe, by my friend from Pennsylvania, [Mr. Armstrong]. The amendment is substantially in the language of the proposition reported by him.

"Mr. BECK. Mr. Speaker, having been on the committee of conference with the gentleman from California [Mr. Sargent] and the gentleman from Kansas, [Mr. Clarke] I desire to say that the House, in my judgment, has gained almost everything that it had a right to expect. All the valuable amendments which we supposed could properly be introduced into an Indian appropriation bill are retained, although some of them had been stricken out by the Senate, and the others had been changed, though not materially altered. In the bill as it now stands, while not ratifying any previous treaties made with the Indians, though we concur in carrying out the stipulations of existing legislation, there is a distinct agreement between the two Houses that from this time henceforward there shall be no more Indian treaties made by the Senate; that they will not treat the Indians in that regard as a people with whom they have a right to make treaties without consulting the House of Representatives; and that whatever is done shall be done by the Congress of the United States, by both Houses acting in the passage of laws. (90 Cong. Globe at 1811 41st Cong., 3d Sess. March 1, 1871.) "Mr. LAWRENCE. I have not had an opportunity to examine this bill as it comes from the committee of conference; but I understand that it does not in terms or in legal effect ratify any past Indian treaty or treaties; and I understand further that it prohibits the making in future of any further Indian treaties. I regard this as the grandest triumph, for the past ten years, in the interest of the people, and in the interest of the power of the popular branch of Congress over this subject. I have given some attention in Congress for several years past to the subject of so-called Indian treaties. I believe I was the first in this Hall to affirm that all such treaties attempting to dispose of public lands were void. I am gratified to find that the Senate at last has abandoned all claim of right to make Indian treaties. The question may now be regarded as settled. A great question of constitutional law has been settled, at least so far as Congress can settle it. The result is that hereafter the land policy of Congress cannot be broken up and destroyed by Indian treaties. Henceforth the homestead policy is to become the fixed policy of Congress.

"But this bill has another signficance. The Indian treaties were always profuse in their extravagant demands for the appropriation of money from the public Treasury. Hereafter, there may be economy in the management of the Indian tribes. Hereafter that management is to be controlled by laws of Congress. "Mr. ARMSTRONG. Mr. Speaker, the resolution which I had the honor to introduce early in February, and to which the honorable chairman of the committee has referred as having been embodied in the report under consideration, I am happy to believe, settles definitively the vexed and troublesome question of Indian treaties.

"The right to make treaties is vested by the Constitution in the 'President, by and with the advice and consent of the Senate.' As a power vested by the direct provision of the Constitution, it is lifted beyond the control of Congress; for it is plain that it is not competent by force of a mere law to withdraw a power conferred by the Constitution. But the right to determine who are nations or Powers with whom the United States will contract by treaty belongs to the political power of the Government, or, in other words, the law-making power. While I hold all treaties duly made and ratified by the Senate to be inviolable, I believe it to be fully competent for Congress to declare that this Government will not in the future recognize any foreign State or Power whom they may choose to designate, and where further recognition is in their judgment inimical to the national interests. Much more may they withdraw our recognition of the national character of a people in the anomalous condition of an Indian tribe. The recognition of one Government by another is a matter of political expediency as to all future contracts or treaties. We may lawfully refuse and by law declare that we will withdraw our recognition and will not hereafter recognize as a Power with whom we will contract by treaty even France or England, or any other nation whatever; and such nation would have no right to interfere with such exercise of our sovereign discretion. She could rightfully insist upon the fulfillment of all our convenant obligations already contracted, but she could not force herself upon our continued recognition beyond the limits of our own discretion. It is a question of comity and not of absolute right.

"The remedy therefore, in my judgment, consists not in the denial of the right of the President, by and with the advice and consent of the Senate, to make treaties with Indian tribes, for they stand at present recognized by all departments of the Government as competent Powers, and so long as they continue to be so recognized the constitutional right to make treaties with them is beyond legislative control, but to withdraw our recognition of them, one and all, and the assertion by law that they shall cease hereafter to be recognized as Powers with whom we will contract by treaty. The result will be that in the future our dealings with them will be as mere domestic communities, with whom we may contract, but only with the approval of Congress. They will be contracts, not treaties. Of course, such withdrawal of our recognition would not affect the validity of any treaties already lawfully made, but there is propriety in the distinct reaffirmance of our adherence to all our treaty obligations.

"With these views, I must heartily approve this report, and hope it will be adopted by the House, as it has already been by the Senate." (Id. at 1812.) When the Senate Conferees reported to that body reaction was intense.

"Now, there is ingrafted upon this appropriation bill by this report of a committee of conference a provision dictated by the House of Representatives to the Senate in a spirit of unauthorized arrogance and in repudiation of the history and the practice of the Government not only from its formation but from the settlement of the country by the colonists of making Indian treaties and giving to those Indian treaties the same obligation and validity that treaties with foreign independent powers have. All this principle and doctrine of treaties, all the obligation and validity of treaties, are repudiated for the future by a provision so ingrafted, like a branch upon a tree, on this appropriation bill. It is an utterly vicious and ill-advised proposition. There is no truth in it, there is no justice in it, there is no sound policy or statesmanship in it; it is a monstrous proposition that ought to receive the rejection of every Senator, of every man of justice and philanthropy in the land. And yet in this extraordinary and astonishing report of a committee of conference the conferees on the part of the Senate have consented that upon this appropriation bill those time-honored principles of making treaties with the Indians from the first settlement of the country under the old Articles of Confederation and from the beginning of the Government under the present Constitution, shall all be repudiated and expunged." (Remarks of Senator Davis.) (99 Cong. Globe at 1821, (further comments of the Senate are found at pages 1821-1825, March 1, 1871).)

The material thus far presented makes four 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 ever 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 disavowel of that procedure was clear, and the Senate, despite vocal opposition, assented to the House position on this matter. In and of itself, this material substantiates the position that the Indian treaty practice is not proper precedent to be relied upon in determining the role of the House of Representatives in the transfer of property to the Canal Zone. The following section establishes that 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.

II. PAST PRACTICE SHOWING THAT TERRITORY TRANSFERRED TO PANAMA MUST BE "DISPOSED OF" BY TREATY

The remainder of this report contains material that establishes considerable precedent demonstrating that both the Executive Branch and the Senate have considered it necessary to obtain the consent of the House prior to ceding U.S. property in the Canal Zone to Panama.

In 1932, the United States wanted to build a new legation building on land within the Canal Zone. Since it is improper to build a legation on territory under American jurisdiction, the State Department drafted a bill by which Congress would authorize the Secretary of State to modify the boundary line between Panama and the Canal Zone so as to temporarily cede the land back to Panama, so that the proposed legation could be built on "Panamanian territory." H.R. 7119, 72nd Cong., 1st Sess., 72 Cong. Rec. 4652-4657 (1932). The legislation was approved, 72 Cong. Rec. 4657.

In 1942 the Senate debated approval by Joint Resolution of an Executive Agreement transferring land and property in the Canal Zone to Panama. S.J. Res. 162, 77th Cong., 2nd Sess.: 88 Cong. Rec. 9266-9287, 9320-9328. One of the most acrimonious points of debate concerned whether the transfer should have been effected by treaty, requiring only the consent of the Senate, rather than by an Executive Agreement which required consent of both Houses. The Chairman of the Senate Foreign Relations Committee, Mr. Connally, stated:

"Those who are opposing the measure object because the matter is brought before the Senate in the form of a joint resolution. They say it should be in the form of a treaty.

"Mr. President, I am and have been and in the future shall continue to be ardent in my maintenance of the integrity and the rights of the Senate of the United States in all its proper functions as a branch of the Government; but the matter covered by the joint resolution has to be passed by the Congress sooner or later in some form, for the simple reason that under the Constitution of the United States, Congress alone can vest title to property which belongs to the United States. The Constitution itself confers on Congress specific authority to transfer territory or lands belonging to the United States. So, if we had a formal treaty before us and if it should be ratified, it still would be necessary for the Congress to pass an act vesting in the Republic of Panama the title to the particular tracts of land; because "the Congress" means both bodies. The House of Representatives has a right to a voice as to whether any transfer of real estate or other property shall be made either under treaty or otherwise. "Another reason why it is not necessary to embody the provisions of the joint resolution in a treaty or treaties is that so far as Panama is concerned, most of the results sought to be attained by means of the joint resolution have already been accomplished. We already have the sites; we already are occupying them; we already are putting installations upon them for the proper defense of the Canal Zone. The instrumentalities involved comprise not only all fields, but detector stations, searchlight stations and all the other various instrumentalities for the proper protection of the Canal and its approaches." (88 Cong. Rec. at 9267.)

Despite calls that the Joint Resolution be rejected because it infringed upon the Senate's right to pass upon treaties (88 Cong. Rec. at 9320), the measure was approved (88 Cong. Rec. at 9328).

A 1955 treaty provided for the transfer of real property to Panama. Although by terms of the treaty, the transfer of some property was to be immediate, and the transfer of the remainder was dependent upon Congressional authorization, a representative of the State Department who testified at the Hearings on the Treaty admitted that legislation would be needed to implement the transfer of all the territory and property mentioned in the treaty. Hearings before the Senate Foreign Relations Committee on the Panama Treaty, Exec. F., 84th Cong., 1st Sess., pp. 60-61. Such legislation was later enacted. P.L. 85-223, 71 Stat. 509 (1957).

THE LIBRARY OF CONGRESS, CONGRESSIONAL RESEARCH SERVICE, Washington, D.C., December 30, 1971.

To: House Subcommittee on the Panama Canal. (Attention of Mr. Tannenbaum).

From: American Law Division.

Subject: Cession of United States property; treaty or act of Congress.

This is in response to your request for an evaluation of the issue whether property belonging to the United States Government may be ceded by treaty or whether, if provision for cession is made in a treaty, an act of Congress is required to implement the transfer.

Resolution of the issue involves several provisions of the Constitution. In Article IV, sec. 3, cl. 2, it is provided: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Treasury or other Property belonging to the United States; . . ." By article II, sec. 2, cl. 2, the President is authorized to negotiate and enter into treaties, subject to the concurrence of two-thirds of the Senators present, and the supremacy clause, Article VI, cl. 2, makes lawful treaties the law of the land. "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

It may be argued that inasmuch as the Constitution grants the power of making treaties to the President and the Senate in general and unqualified terms and that inasmuch as the making of treaties must extend to all those objects which are the proper subject of negotiation between nations, a treaty ceding territory to a foreign nation would be a self-executing transfer of property needing no further action than that encompassed within the constitutional requirement of ratification. Since the property with which we are here concerned constitutes the territory of the Panama Canal Zone and is very much subject to negotiation between the United States and Panama, it could very well be contended that upon ratification a treaty transferring the territory, or part of it, would become the supreme law of the land, superseding contrary regulations of Congress.

Such a resolution is consistent with a mode of interpretation which leads one to look only to one provision of the Constitution, here, the grant of the treaty power, and to ignore the interrelationship of the clauses of the Constitution in their entirety. The Constitution contains numerous grants of power to the President, to the Congress, to the States, all of which are on their faces unlimited, but all of them are subject to the limitations imposed by other sections of the Constitution. Cf. Williams v. Rhodes, 393 U.S. 23, 29 (1968). Some of these limitations are set out as prohibitions; other limitations are expressed through the vesting of concurrent or exclusive power in certain agencies. There is no doubt that the exercise of the treaty power is limited by both of these constitutional restrictions. Reid v. Covert, 354 U.S. 1, 17 (1957); Asakura v. City of Seattle, 265 U.S. 332, 341 (1924); The Cherokee Tobacco, 11 Wall. (78 U.S.) 616, 620-21 (1871).

A review of the decided cases and the executive-congressional practice since the 1790's, it is submitted, establishes that the treaty power is limited, that among its limitations is that there cannot be effectuated by treaty certain powers which the Constitution grants to the entire Congress to exercise, and that one of these limitations is that the treaty power alone is insufficient to cede or transfer property belonging to the United States to a foreign power.

I

The Constitution, in the supremacy clause, places a congressional act and a treaty on the same footing, of like obligation on the courts and affected parties. "Both are declared . . . to be the supreme law of the land, and no superior efficacy is given to either over the other." Whitney v. Robertson, 124 U.S. 190, 194 (1888). Since a statute and a treaty have the same status under the Constitution, it follows that a treaty could be unconstitutional in the same respect a statute could be. "It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our government.”

The Cherokee Tobacco, 11 Wall. (78 U.S.) 616, 620–21 (1871). A power given by the Constitution cannot be deemed to authorize a contravention of that instrument; it cannot extend "so far as to authorize what the Constitution forbids." Asakura v. City of Seattle, 265 U.S. 332, 341 (1924). "It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights—let alone alien to our entire constitutional history and tradition-to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions." Reid v. Covert, 354 U.S. 1, 17 (1957). See also, Doe v. Braden, 16 How. (57 U.S.) 635, 656 (1853); Prevost v. Greneaux, 19 How (60 U.S.) 1, 6 (1856); Geofroy v. Riggs, 133 U.S. 258, 267 (1890); United States v. Wong Kim Ark, 169 U.S. 649, 700 (1898); Wilson v. Girard, 354 U.S. 524, 530 (1957). A passage by Justice Holmes in his opinion for the Court in Missouri v. Holland, 252 U.S. 416, 433 (1920), which had been taken by some to cast doubt on these principles was expressly disavowed in Reid v. Covert, supra, 18.

That the prohibitions of the Constitution restrict the treaty power is clear, Reid v. Covert, supra, 17, but in what other manner is the power limited? That manner too is stated by implication in the language of the Court. Thus, Chief Justice Marshall observed that a treaty must "be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision." Foster v. Neilson, 2 Pet. (27 U.S) 253, 314 (1829). [Emphasis supplied, leaving the impression that where it is not selfexecuting it is not considered similar to a domestic law.] This thought has been reasserted time and time again, especially when the Court has been called upon to determine the applicable law when a statute and a treaty are in conflict. Thus, it is asserted that since both have an equal status, Whitney v. Robertson, 124 U.S. 190, 194 (1888), the one later in time governs, Cf. Cook v. United States, 288 U.S. 102, 118-119 (1933); United States v. Forty-Three Gallons of Whiskey 93 U.S. 188, 196-97 (1876). A treaty supersedes an earlier statute, however, only if it is self-executing, does not, in other words, require congressional action to implement it. "When the stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect, and such legislation is as much subject to modification and repeal by Congress as legislation upon any other subject. If the treaty contains stipulations which are self-executing that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment." Whiney v. Robertson, supra, 194. The Court has never elaborated the standards by which self-executing stipulations are to be distinguished from those which require legislative effectuation. But in Cook v. United States, supra, 119 n. 19, it alluded approvingly to Dickinson, "Are the Liquor Treaties Self-Executing?" 20 American Journal of International Law 444 (1926), in which the author noted that a treaty may not be self-executing when it contains an express stipulation for legislative execution or when the nature of the stipulation requires legislative execution. Id., 448-49. See also, S. Crandall, Treaties, Their Making and Enforcement (New York: 1904), 115-50; 1 C. Butler, The Treaty-Making Power of the United States (New York: 1902) ch. 10; H. Tucker, Limitations on the Treaty-Making Power (Boston: 1915), ch. 8. What the nature of a stipulation must be to keep it from being selfexecuting can be determined generally from a consideration primarily of the executive-congressional practice over the years.

In a 1907 memorandum approved by the Secretary of State, it is said, in summary of this practice and reasoning from the text of the Constitution, that the limitations on the treaty power, which require legislative implementation, may "be found in the provisions of the Constitution which expressly confide in Congress or in other branches of the Federal Government the exercise of certain of the delegated powers. . . ." Anderson, "The Extent and Limitations of the

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