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Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the *** departments *** 15
Only the treaty power is "expressed"; Geofroy does not call for express restraints—it suffices that they can be found in the Constitution. The "implied exclusion" is "found" in the Constitution by virtue of the express grant of disposal power to Congress under the rule of express mention, and of the fact that the general treaty power is limited by the special Congressional power of disposition. These principles are reflected in the Supreme Court's statement in Sious Tribe of Indians v. United States: "Since the Constitution places the authority to dispose of public lands exclusively in Congress, the Executive's power to convey any interest in the lands must be traced to Congressional delegation of its authority." 18
To this the State Department responds that Sioux Tribe "did not deal with the relation between the treaty power and the Congressional power under Article IV, Section 3, cl. 2;" Hansell labeled it “dicta.” 17 By this test the HansellErickson collection of dicta falls to the ground, for almost all were not uttered in the context of that relation.
The executive branch employs a double standard--what is dictum when the language is unfavorable to it becomes Holy Writ when the dictum reads in its favor. Erickson, for example, tells us that: “Jones against Meehan is cited as an example by reason of the quote and the language there, which it seems to me is of significance, irrespective of the particular facts involved." 18
Messrs. Erickson and Hansell can not have it both ways. In truth, dicta carry little weight when a particular issue has not been decided. Chief Justice Marshall dismissed his own dicta in Marbury v. Madison when they were pressed upon him in Cohens v. Virginia, 19 U.S. 264, 399 (1821), on the ground that dicta do not receive the careful consideration accorded to the question "actually before the court.” The statements here quoted respecting "exclusivity” carry weight because they reflect traditional canons of construction. The foregoing considerations should suffice to dispose of a number of other Hansell-Erickson arguments for concurrent jurisdiction," but I shall consider them for the sake of completeDess.
To escape from the exclusivity of Congress' disposal power Mr. Erickson argues, "To begin with, Article IV, Section 3, clause 2, uses the same terminology, "Congress shall have power,” as Article I, Section 8, which in our opinion, permits treaty provisions relating to such matters to be self-executing (i.e., without Congressional action), at least to the extent that the inherent character of the power or other constitutional provisions do not make the power exclusive to Congress.” 19
Erickson's qualification is a concession that some Article I powers can not be concurrently exercised by the President. The Department of State Concedes that "treaties may (not] impose taxes." 20 Why is that power more "inherently" exclusive than such other Article I, Section 8 powers as the power to establish post offices, to provide and mairtain a navy, to declare war, to coin money, etc., all of which manifestly can not be exercised by treaty. Erickson proves too much.
Second, he urges, “Article IV, Section 3, clause 2, is included in a portion of the Constitution which deals with the distribution of authority between the Federal and State governments. It does not purport to allocate powers exercisable by Congress or pursuart to treaty." a
But Section 3 (2) unmistakably does "allocate powers exercisable by Congress" : "The Congress shall have power to dispose of ... property belonging to the United States.” Hansell argues that the placement of the property article in clause 4... provides strong evidence that the property clause does not restrict the treaty power." * That the “placement of a power in one or another Article is without significance for its scope is readily demonstrable: (a) “Congress shall have power to declare the punishment of treason" is located in the
15 Hansell 4; 133 U.S. 258, 267 (1890), emphasis added. One might with equal force arzne that no limitation on Congress' "power to dispose" is "expressed" in Article IV.
16 316 U.S. 317. 326 (1942). Turner v. American Baptist Missionary Union, 24 Fed. Cas. (No. 14, 251) 344, 346 (C. Ct. Mich. 1852) : "Without a law the president is not authorized to sell the public lands ... The (Indian) treaty. In fact appropriated the above tract of 160 acres for a particular purpose, but, to effectuate that purpose, an act of congress was passed."
17 Hansell 27, 22.
Judiciary Article III; (b) Congress' powers to make "exceptions and regulations" respecting the Supreme Court's appellate jurisdiction is lodged in Article III, Section 2; (c) The provision that "Congress may determine the time of choosing the electors” is placed in the Executive Article II, Section 1(4). Does this authorize the President by treaty to declare the punishment of treason, to regulate the Court's appellate jurisdiction, or to interpose in the choice of electors? Whether located in Article I or Article IV, "Congress shall hare power" means one and the same thing--the power resides in Congress, not in the President. It needs constantly to be borne in mind that the President has circumvented Senate participation in treaty-making by affixing the label “Execotive Agreements" to treaties, without constitutional warrant,* so that claims made on behalf of the Senate and the President can be turned to his own advantage.
Mr. Hansell also attaches significance to the close linkage between the Article IV "power to dispose" and "the power to make all needful rules and regulations" respecting the Territory or other property belonging to the United States, and cites Geofroy v. Riggs for the proposition that “the treaty power can be used to make rules and regulations governing the territory belonging to the United States, even in the District of Columbia." 24 Geofroy presented the question whether a citizen of France could take land in the District of Columbia by descent from a citizen of the United States. Local law withheld the right, but in keeping with national solicitude for protection of citizens abroad, a treaty provided for reciprocal rights of inheritance in such circumstances for citzeus of both signatories. In consequence the treaty overrode the local provision; but this hardly stretches to the “making of rules and regulations” by treaty for the District of Columbia. Were this true, the President could by treaty take over the governance of the District of Columbia, in spite of the Article I, Section 8 (17) provision that “The Congress shall have power to exercise exclusive jurisdiction in all cases whatever over such district.” Assume notwithstanding that the treaty power does indeed comprehend the “making of rules and regulations governing the : : District of Columbia," does the "close” linkage with the "power to dispose” comprehend a disposition of the White House by treaty? Such arguments verge on absurdity.
Messrs. Hansell and Erickson have cited a string of cases in support of “The power to dispose of public land ... by treaty." Some, such as Holden v. Joy, 84 U.S. 211 (1872), and Jones v. Meehan, 175 U.S. 1 (1899), have frequently been cited in your hearings. Let me begin with Hansell's citation of Missouri v. Holland, 252 U.S. 416 (1920), for it quickly illustrates how far-fetched are the State Department's interpretations. Missouri v. Holland arose out of a State challenge to the treaty with Great Britain for the protection of migratory birds which annually traversed parts of the United States and of Canada. Justice Holmes, addressing the argument that the treaty infringed powers reserved to the States by the Tenth Amendment, stated, “Wild birds are not in the possession of any one, and possession is the beginning of ownership. The whole foundation of the State's rights is the presence within their jurisdiction of birds that yesterday had not arrived, tomorrow may be in another State, and in a week a thousand miles away." »
Consequently the State could assert no "title" in migratory birds. By the same token, the United States could lay no claims to "ownership" of the birds, and Missouri v. Holland is therefore wholly irrelevant to the power by treaty to dispose of property belonging to the United States.
Holden v. Joy and Jones v. Meehan will repay close analysis because they involve Indian treaties which constitute one of the pillars of the argument, to quote Erickson, that "the United States can convey its title by way of self-execut. ing treaty and that no implementing legislation is necessary." * To begin with Jones, both Hansell and Erickson quote: “It is well settled that a good title to parts of the lands of an Indian tribe may be granted to individuals by a treaty between the United States and the tribe, without any act of Congress, or any patent from the Executive authority of the United States." 28 The treaty had "set apart from the tract hereby ceded [by the tribe] a reservation of six hundred and forty acres * *" for an individual Indian; and the issue was what kind of
23 Berger, supra n. 4 at 140-162. 24 Hanell 5. 25 11., Erickson 97. 21 252 U.S. at 434. 27 Erickson 97. 25 Hansell 6; Erickson 97.
title did he take. The Court quoted from an opinion of Attorney General Roger Taney, destined before long to succeed Chief Justice Marshall: "these reservations are excepted out of the grant made by the treaty, and did not therefore pass with it; consequently the title remains as it was before the treaty; that is to say, the lands reserved are still held under the original Indian title."
The Court held that "the reservation, unless accompanied by words limiting its effect, is equivalent to a present grant of a complete title in fee simple." ** That explanation presumably responded to the fact that tribal lands were generally beld in common; individual titles were all but unknown, so that such title had to be secured through the machinery of the treaty. But that is far from a disposition of government land because, as Taney explained, the “reserved" title remained in the Indians. Many, if not most, of the cases of Indian treaties involve just such “reserve” provisions.31
The quotation from Holden v. Joy, Erickson acknowledges, is dictum; notwithstanding Hansell relies on it as “a clear statement of the law": 32
It is insisted that the President and the Senate, in concluding such a treaty, could not lawfully covenant that a patent should be issued to convey lands which belonged to the l'nited States without the consent of Congress, which cannot be admitted. On the contrary, there are many authorities where it is held that a treaty may convey to a grantee a good title to such lands without an act of Congress, and that Congress has no constitutional power to settle or interfere with rights under treaties, except in cases purely political.
What bearing the last clause has on Congress' “power to dispose" of public lands escapes me; this Delphic utterance surely does not overcome the clear terms of Article IV. As to the “many authorities,” the Court's citation could hardly he farther afield. To avoid cluttering this statement with a minute analysis of each case cited by the Court for the assertion that “a treaty may convey to a grantee a good title ... without an act of Congress," I have abstracted them in an appendix attached hereto, so that you may see for yourself that half of *be cases thus cited are altogether irrelevant, and that the rest concern "reserves" under which, as Taney observed, no title had passed to the United States but remained in the given Indians. In considering such dieta, it is well to bear in nind Chief Justice Taney's statement that the Court's opinion upon the construction of the Constitution is always open to discussion when it is supposed to have been founded in error, and that its judicial authority should hereafter depend altogether on the force of the reasoning by which it is supported.34 By that standard the Holden dictum is no authority at all. The inappositeness of Holden is underscored by the facts. In May. 1828, and February, 1833, “the United States agreed to possess the Cherokees of seven million acres of land west of the Mississippi." It was the policy of the United States to induce Indians * * * to surrender their lands and possessions to the United States and emigrate and settle in the territory provided for them in the treaties," an exchange of land was provided. But a third treaty, that of December, 1835, proved necessary, whereby the Indians ceded their lands to the United States in consideration of $5,000,000 to be invested in the manner stipulated. The Indians considered that the prior treaties, confirmed by the new, did not contain a sufficient quantity of land, so the United States agreed to convey an additional tract in consideration of $500,000 to be deducted from the $5,000,000.23 This may be viewed either as a purchase and sale or an exchange : “the Cherokees were competent to make the sale to the United States and to purchase the lands agreed to be conveyed to them. * * *” And the transaction was authorized by the Act of 1830, which empowered the President to set aside land west of the Mississippi for the reception of such tribes as chose to emigrate, and to "exchange" such hands with any tribe. The 1830 act served to ratify the Act of 1828, and “ratibration is equivalent to original authority" 57: "It is well settled that Congress has ‘ratify * * * acts which it might have authorized' * * * and give
, the force of law to official action unauthorized when taken.” 38 Although the subwent 1833 and 1835 treaties differed in some particulars from the authorizatiin. the purpose was the same—"to induce the Indians * * * to emigrate and
$175 L'. S. at 12, emphasis added.
quoted by Hansell 5-6: 84 U.S. at 247.
Wilxon v. Shaw, 204 U.S. 24, 32 (1907).
* Id. 21.
settle in the country long before set apart for that purpose.” *9 When, therefore, the Court, speaking to the contention that the President and the Senate "could not lawfully covenant that a patent should issue to convey lands which belonged to the United States without the consent of Congress," stated that “a treaty may convey to a grantee a good title to such lands without an act of Congress conferring it,” it was making a statement that was unnecessary to the decision, because Congress had authorized the conveyance.
As to other treaties, Hansell tells us, "the precedents look two ways.” Some have been "contingent upon congressional authorization." The “precedents supporting the power to dispose of property by treaty alone,” he states, “can be found in the boundary treaties with neighboring powers, especially in the treaties between the United States and Great Britain of 1812 and 1846 for the location of our northeast and northwest boundaries. * * *" 40 Settlement of boundary disputes are not really cessions of United States property. The Oregon boundary dispute proceeded from an inflated claim : "Fifty-Four Forty or Fight"; the British, on the other hand, claimed land down to the forty second parallel. Only when the dispute was settled by treaty--at 49 degrees-could either party confidently assert that it had title.“ Consequently, as Samuel Crandall, a respected commentator, stated, "A treaty for the determination of a disputed line operates not as a treaty of cession, but of recognition." "
Among other examples of alleged treaty transfers of property, Hansell instances the return to Japan of the Ryukyu Islands. By Article III of the 1951 Treaty of Peace with Japan, the United States received the right to exercise “all and any powers of administration, legislation and jurisdiction over the territory and inhabitants of those islands. * * *" While Japan renounced, in Article II, “all right, title and claim" to various territories, it made no similar renunciation with respect to the Ryukyus.“ Quoting the Legal Advisor of the State Department, that “sovereignty over the Ryukyu Islands * * * remains in Japan a District Court stated that "Sovereignty over a territory may be transferred by an agreement of cession," but it concluded that there had been no cession." The Fourth Circuit Court of Appeals quoted a statement by Ambassador John Foster Dulles, a delegate to the Japanese Peace Conference, that the aim was "to permit Japan to retain residual sovereignty," and held that the treaty did not make "the island a part of the United States, and it remains a foreign country for purposes of"' the Federal Tort Claims Act.“
"In the history of transfers of property to Panama," Hansell tells us, "we hare had a mixed practice." * By the 1903 Panama Convention, Panama granted to the United States “all the rights, power and authority within the Zone ... which the United States would possess if it were the sovereign of the territory ... to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power, or authority..." 18 The words “if it were sovereign” signal an intent to stop short of a cession of sovereignty. That is confirmed by an Opinion of the Attorney General. Considering the Tariff Act levy of duties on articles imported "into the United States or into any of its possessions,” he stated that “the Canal Zone is not one of the possessions of the United States within the meaning of that term as used by Congress in the tariff act, but rather is a place subject to the use, occupation, and control of the United States for a particular purpose." "* In Luckenbach S.S. Co. v. United States, Chief Justice Taft stated, “Whether the grant in the treaty amounts to a complete cession of territory and domination to the United States or is so limited as to leave titular sovereignty in the Republic of Panama, is a question which has been the subject of diverging opinions," which he found it unnecessary to decide, and is therefore still open. Instead he relied on a "long continued course of legislation and administrative action [that] has oper. ated to require that the ports in the Canal Zone are to be regarded as foreign ports within the meaning" of the Act governing the transport of "mail between the United States and any foreign port,” 61 itself a hint that the Panama Treaty is no more a cession than the Japanese Treaty respecting the Ryukyus.
30 S4 U.S. at 240.
It does not follow, however, that the interests of the United States do not constitute "property of the United States.” The grant of “use and occupation ... in perpetuity” constitutes “property” no less than the familiar lease of reality for 99 years. Then there are the installations that cost billions of dollars. Disposition of these no less requires the consent of Congress than does that of territory. In 1942, the President by Executive Agreement promised to transfer certain installations to Panama subject, however, to Congressional approval.“- A similar provision is to be found in the Treaty of 1955.5 These are executive constructions that speak against Messrs. Hansell and Erickson.
In sum, Messrs. Hansell and Erickson have failed to make out a case for "concurrent jurisdiction” with Congress in the disposition of United States property. If the President is to fly in the face of the express "power of Congress to dispose" it must be on a sounder basis than the arguments they have advanced. In my judgement, the Panama Treaty should contain a provision making it subject to approval of the Congress.
Holden v. Joy: Its citations for treaty power to dispose of property.
A, "RESERVE” CASES (TITLE REMAINS IN INDIANS) (1) United States v. Brooks, 51 U.S. (10 How.) 442 (1830). Indian cession to United States; supplement to treaty provided that Grappe's representatives "shall have their right to the said four leagues of land reserved to them (450, 451). Held: treaty "gave to the Grappes a fee simple title to all the rights the (Indians) had in these lands *
** (460), (2) Doe v. Wilson, 64 U.S. (23 How.) 457 (1859). Indian treaty ceded land to United States, making reservations to individual Indians. “As to these, the Indian title remained as it stood before the treaty was made; and to complete the title to the reserved lands, the United States agreed that they would issue patents to the respective owners.” (461-462).
(3) Crews v. Burcham, 66 U.S. (1 Black) 352 (1861). Cession by Indians with reserves (355). "The main and controlling questions involved in this case were before this court in the case of Doe v. Wilson, 23 How. 457 * * *" (356).
(4) Mitchel v. United States, 34 U.S. (9 Pet.) 711 (1835). Prior to the Spanish cession of Florida to the United States, the Indians had made a cession to Spain, “reserving to themselves full right and property'' in certain lands. (749). Held: "by the treaty with Spain the United States acquired no lands in Florida to which any person had lawfully obtained" title. (734, 756). Issue: title of purchaser from Indians to reserved lands.
(5) The Kansas Indians, 72 U.S. (5 Wall.) 737 (1866). Treaty exchange of lands; Indians reserved lands for each individual (739, 741). Issue: was such land taxable by Kansas.
B. IRRELEVAXT CASES
(1) Meigs v. McClung, 13 U.S. (9 Cranch) 11 (1815). Held: land claimed from defendants did not lie within territory ceded to the United States by the Indians. (17).
(2) Wilson v. Wall, 73 U.S. (6 Wall.) 83 (1967). Treaty provided that certain Indians would be entitled to 640 acres for self, and additional acres, roughly speaking, for each child. (84). Issue: whether an Indian held land governed by the latter clause in trust for his children. (86). Court said "Congress has no constitutional power to settle the rights under treaties except in cases purely political," (89) the clause quoted in Holden v. Joy. The reason, it explained, was that “The Construction of them is the peculiar province of the judiciary * * *" id. In other words, interpretations of treaties is for the courts.
(3) American Insurance ('0. v. Canter, 26 U.S. (1 Pet.) 511 (1828). Insurer brought a libel in the District Court, South Carolina, to obtain restitution of 356 bales of cotton carried by ship that was wrecked on the Florida coast. A Florida territorial court had earlier awarded 76% salvage to salrers, who sold the Canter. (540). Issue: did the territorial court have jurisdiction. Yo mention of grant by United States.
19 "When the authority of the Congress shall have been obtained therefore. Agreement of May 18, 1942, 59 Stat. (Pt. 2) 1289.
12 Agreement of January 25, 1955, 6 U.S.T. 2273, 2278.