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(4) Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). Worcester, a white missionary was convicted of residing within Indian territory without a State license. The treaty with the Indians placed them under the protection of tije United States, gave it the sole right of “managing all their affairs.” Held: the Georgia act can have no force in the Indian territory. (561).

(5) Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829). Re grants made in the ceded territory by Spain prior to January 24, 1815, the article provides “that those grants shall be ratified and confirmed like Indian “reserves * * * the ratification and confirmation which are promised must be by the Act of the Legislature," ie. Congress. (314-315).

Some additional Hansell citations for power to dispose by treaty.

(1) Reid v. Covert, 354 U.S. 1 (1957). Military Code provided for trial by court martial of "all persons accompanying the armed forces" of the United States in foreign countries. Wife of Army Sergeant convicted by court martial in England of his murder. Held: Bill of Rights requires jury trial after indict. ment.

(2) A sakura v. Seattle, 265 U.S. 322 (1924). Seattle ordinance restricted pawnship license to United States citizen. (339–340). Japanese attacks as violation of treaty provision : citizens or subjects of each signatory "shall have liberty to carry on trade, wholesale and retail * * * upon the same terms as native citizens or subjects * * *" (340). Held: can't deny the Japanese equal opportunity. (342).

(3) Santoricenza v. Egan, 284 U.S. 30 (1931). Italian subject dies in New York. leaving no heirs or next of kin. (351). Italian consul claims under “most favored nation” treaty clause. Held: The treaty-making power is broad enough" to cover "the disposition of the property of aliens dying within the territory of the respective parties * * *” Any "conflicting law of the State must yield.” ( 40).


Some additional Erickson citations for self-executing treaty conveyances.

(1) Francis v. Francis, 203 U.S. 233 (1906). Indian treaty ceded land to United States, but reserved certain tracts for use of named persons. (237). Quotes Jones v. Meehan; when treaty makes "a reservation of a specified number of sections of land ** * the treaty itself converts the reserved sections into in. dividual property * * *” (238). It was in these circumstances that the Court said. "a title in fee may pass by treaty without the aid of an act of Congress, and without a patent," (241–242) the reason being that title to the reserved land remained in the Indians.

(2) Best v. Polk, 85 U.S. (18 Wall.) 112 (1873). By Indian treaty "reservations of a limited quantity (of land] were conceded to them. (113). One section “had been located to an Indian." (113, 116). Thereafter, the United States issued a patent to James Brown. Held (117), “the Indian reservee was held to have a preference over the subsequent patentee.”



The statement by Attorney General Griffin B. Bell (hereafter cited as A. G.) before the Senate Foreign Relations Committee, September 29, 1977, reached me on Saturday afternoon, October 29, 1977, too late for inclusion of my comments in the body of my statement. Only three points made by the Attornes General seem to me to call for additional comment, and of these I shall speak in turn.


The Percheman Case The Attorney General cites United States v. Percheman, 32 U.S. (7 Pet.) 511, 88–89 (1833) to prove that "the Court held self-executing certain clauses of the Florida Treaty with Spain which related to the regulation of property rights in newly acquired territory." A. G. at p. 10. At the cited pages it appears that Article 8 of the treaty provided, “all the grants of land made before the 24th of January, 1818, by his Catholic Majesty * * in the said territory ceded by his Majesty to the United States, shall be ratified and confirmed to the persons in possession of the lands * * *"

This Article, Chief Justice Marshall remarked, “must be intended to stipulate expressly for that security of private property which the laws and usages of nations would, without express stipulation, have conferred * * * Without it (Article 8), the title of individuals would remain as valid under the new government as they were under the old * * * the security of (pre-existing) private property was intended by the parties * * *"

In short, the treaty provided that prior Spanish grants to private persons should be ratified and confirmed, a provision far removed from presidential "regulation" of public territory. Moreover, Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314-315 (1829), a case cited by the Attorney General (A. G. at p. 3), held with respect to the self-same provision that “the ratification and confirmation which are promised must be by the Act of the Legislature," i.e. Congress. The citation to Percheman illustrates why I approach an Attorney General's statement with something less than awe.



Remarks in the Legislative History of the Constitution (1) The Attorney General asserts that “(the members of the Convention were fully aware of the possibility that a treaty might dispose of the territory or property of the United States," (A. G. at p. 5). He begins with the remark of George Mason in the Constitutional Convention : "The Senate by means of a treaty might alienate territory etc. without legislative sanction.” A. G. at p. 6; 2 Farrand 297. This was during a debate on a resolution that "Each House shall possess the right of originating bills,” when Mason seconded Strong's motion to "except bills for raising money for the purposes of revenue, or for appropriating the same." The Senate, said Mason, "could already sell the whole Country by means of Treaties,” plainly an extravagant overstatement, made at a time when the treaty was not under discussion. His "alienate territory” remark may merely represent a strategic retreat from his untenable "sell the whole country" remark.

There follow a group of utterances that have reference to boundary disputes, i.e. conflicting claims to ownership to be settled by treaties of peace.

(2) When the treaty power was under discussion, Williamson and Spaight moved “that no Treaty of Peace affecting territorial rights should be made without concurrence of two thirds of the members of the Senate present].” A.G. at p. 6; 2 Farrand 543. Similarly, Gerry, speaking for a greater proportion of votes on “treaties of peace”, said that here, “the dearest interests will be at stake, as the fisheries, territories, etc. In treaties of peace also there is more danger to the extremities of the Continent of being sacrificed than on any other occasion."

A.G. at p. 6; 2 Farrand 541. The "extremities of the Continent” has reference to boundary disputes which do not really involve territory owned by the United States.

(3) "Sherman and Morris proposed but did not formally move," the Attorney General states, “the following proviso, ‘But no treaty (of peace) shall be made without the concurrence of the House of Representatives, by which the territorial boundaries of the United States may be contracted * * *?"

A.G. at p. 6; 4 Farrand 58. Farrand adds that “The subject was then debated, but the motion does not appear to have been made.” Id. Why was the motion not made after debate? Presumably, the matter was postponed for consideration when Article IV, Section 3(2) would come up for discussion. During this subsequent discussion of "The Legislature shall have power to dispose of * * * the territory * * *", it is singular that no mention was made of an exception for disposition under the treaty power. 2 Farrand 466. Non-mention is the more remarkable because such an exception would carve out an area of undefined magnitude from the power conferred, a matter which would affront the democratically minded who placed their faith in the House. It seems more reasonable to infer from the history that Article IV, Section 3(2) was designed to set at rest the fears that territory might be ceded without the concurrence of the House.

(4) The Attorney General cites an amendment proposed by the Virginia Ratification Convention as exhibiting the "awareness of the Founding Fathers that the Constitution authorizes self-executing treaties disposing of the territory and property of the United States": "No commercial treaty shall be ratified without the concurrence of the members of the Senate (not merely of those present); and no treaty ceding, contracting * * * the territorial rights or claims of the United States * shall be made, but in cases of extreme necessity; nor shall any such treaty be ratified without the concurrence of three-fourths of the whole number of the members of both Houses respectively."

A.G. at p. 7: 3 Elliot, Debates on the Federal Constitution 660. The Attorney General's reading paradoxically transforms Virginia's anxiety to have greater safeguards, i.e. three-fourths of both Houses rather than the bare majority that satisfies Article IV, into an argument for excluding the House altogether. Like the earlier remarks, the Virginia proposal testifies to the importance that the Founders attached to the disposition of territory-no cession except "in cases of extreme necessity"--and it counsels against reading the equivocal "treaty. making” to encroach upon the “power to dispose" that requires the vote of both Houses, not merely the Senate. In any event, it may be asked, should the postConvention view of one State be permitted to override the plain terms of Article IV.

(5) Hugh Williamson, a delegate to the Convention, wrote to Madison some nine months after its close, to recall to him, "a Proviso in the new System which was inserted for the express purpose of preventing a majority of the Senate from giving up the Mississippi. It is provided that two-thirds of the members present in the Senate shall be required in making treaties * * *."

A.G. at p. 7–8; 3 Farrand 306–307. The Mississippi presented a gnawing boundary question which threatened the expansion of the West and was only settled by the Louisiana Purchase. Boundary treaties do not really involve the disposition of territory or property of the United States but the adjustment of conflicting claims, even when some believe their claims to be more valid than those of the opposing party.

To my mind, the history is at best inconclusive; the remarks quoted by the Attorney General are confined to adjustment of boundary disputes, with one exception, by treaties of peace. Treaties of peace present special problems, and such citations do not add up to general concurrent jurisdiction over the dispa sition of government territory or property. To go beyond such territorial adjustments collides with the rationale of Pierson v. Ray, 386 U.S. 547, 554–555 (1967). With respect to the common law immunity of judges from suit for acts performed in their official capacity, the Court declared, “We do not believe that this settled principle was abolished by Section 1983, which makes liable 'every person' who under color of law deprives another of his civil rights * * * we presume that Congress would have specifically so provided had it wished to abolish the doctrine.”

Thus, the all-inclusive "every person" was held not to curtail an existing common law immunity in the absence of a specific provision. The more equivocal treaty-making power demands an even more exacting standard. Before it be concluded that it in any way diminishes the explicit grant to Congress of "power to dispose" of territory, a clearly expressed intention to do so is required. That requirement is not satisfied by the random remarks collected by the Attorney General.

The Attorney General concedes that, “the specific power granted to the House of Representatives and Congress in fiscal matters (Article I, Section 7, clause 1 and Article I, Section 9. clause 7, money bills and appropriations power) preclude making treaties self-executing to the extent that they involve the raising of revenue or the expenditure of funds. Were it otherwise, President and Senate could bypass the power of Congress and in particular of the House of Representatives over the pursestrings.".

A.G. at p. 4-5. Now, sections nine and seven are couched in quite dissimilar terms. One, Section 9(7), is framed in terms of flat prohibition : "No money shall be withdrawn from the Treasury but in consequence of appropriations made by law * * *.” Section 7(1), on the other hand, merely provides that "All bills for raising revenue shall originate in the House." Yet, the Attorney General reads Section 7(1) to preclude the President and Senate from "bypass[ing] the power of Congress and in particular of the House of Representatives over the pursestrings.” What is there that distinguishes "All bills shall originate in the House" from "The Congress shall have power to dispose The impalpability of the distinction is underlined by the State Department's concession that "treaties may (not! impose taxes." Nothing in this Article I, Section 8(1) "The Congress shall have power to lay and collect taxes" distinguishes it from the Article IV "The Congress shall have power to dispose

If the President may not by treaty "bypass" the power of the House to origi. nate revenue-raising bills, or the power of Congress to tax, no more may be “bypass” its "power to dispose" of the territory and property of the United States.



It is clear that the property ceded by the United States in the Panama Canal Treaty is “Territory or other Property belonging to the United States," within the meaning of Art. IV, Sec. 3, cl. 2, of the Constitution.

Article 2 of the 1903 treaty between the United States and the Republic of Panama "grants to the United States in perpetuity the use, occupation, and control of a zone of land and land under water for the construction, maintenance, operation, sanitation, and protection of said canal.” Article 3 of that treaty "grants to the United States all the rights, power, and authority within the zone mentioned and described in article 2 of this agreement, . . . which the United States would possess and exercise if it were the sovereign of the territory within which said lands and waters were located, to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power, or authority.”

It is interesting to compare the language of the 1903 treaty with the earlier treaty of 1846 between the United States and the Republic of New Granada, the predecessor in ownership of the Isthmus of Panama to Colombia and the Republic of Panama. In Article 35 of that treaty the United States undertook to guarantee “the rights of sovereignty and property" of the Republic of New Granada over the Isthmus. [9 Stat. 881; see Moore, a Digest of International Law (1906), Vol. III, 5–6] The 1903 treaty, by contrast, is strong in the affirmation of sovereign authority in the United States.

In Vilson v. Shaio, 204 U.S. 24, 27 S. Ct. 233, 235 (1907), the Supreme Court declared, “It is hypercritical to contend that the title of the United States is imperfect, and that the territory described does not belong to his nation, because of the omission of some of the technical terms used in ordinary conveyances of real estate." As the Fifth Circuit Court of Appeals held in United States v. Husband R. (Roach) [453 F.2d 1054, 1057, 1059 (5th Cir., 1971), cert. den. 406 U.S. 935 (1972)), “The Canal Zone is an unincorporated territory of the United States" to which applies the power of Congress to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,” Congress, said the court, has "plenary power over the Canal Zone."

The controlling question, however, is whether the grant of power to Congress to dispose of the territory and property of the United States is exclusive or concurrent.

If the grant is concurrent, that is, if it may be exercised by the Executive as well as Congress, then it would be proper for the Executive to make a selfexecuting treaty disposing of such property without the necessity of implementing legislation by Congress. If, however, the grant of such power is exclusively to Congress, the treaty would not be self-executing and such implementing legislation would be necessary.

The power of disposition provided in Article IV, Sec. 3, clause 2, does not explicitly exclude concurrent power of disposition in the Executive. Also, Article IV generally deals with the relations between the states and the government of the United States. In this respect, the Supreme Court has consistently ruled that the Congressional power is controlling over state legislation. [See Annotation, 49 L. Ed., 1239, 1248] In sustaining the Wild Free-Roaming Horses and Burros Act, the Supreme Court stated in 1976 that "we have repeatedly observed that "[t]he power over the public lands thus entrusted to Congress is without limitations." United States v. San Francisco, 310 U.S. at 29. [Kleppe v. New Merico, 426 U.S. 529, 539 (1976)]

In Wisconsin Railroad Co. v. Price County, (133 U.S. 496, 504 (1890)], the Supreme Court said, “The Constitution vests in Congress the power to 'dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.' And this implies an exclusion of all other authority over the property which could interfere with this right or obstruct its exercise.” And in Utah Power and Light Co. v. United States (243

U.S. 389, 404 (1916)], the Court said: "Not only does the Constitution (Art. IV, Sec. 3, cl. 2) commit to Congress the power “to dispose of and make all needful rules and regulations respecting" the lands of the United States, but the settled course of legislation, congressional and state, and repeated decisions of this court have gone upon the theory that the power of Congress (to dispose of United States property) is exclusive and that only through its exercise in some form can rights in lands belonging to the United States be acquired.”

There is no Supreme Court decision clearly deciding whether a treaty disposing of property must be submitted to the entire Congress for approvel. Nor is there any definitive Supreme Court ruling as to whether the power to dispose of territory and property, in Art. IV, Sec. 3, cl. 2, is exclusive in Congress or concurrent with the Executive.

Nor do the debates in the Constitutional Convention and the actions of the state ratifying conventions provide any clear guidance on these points. There was some incidental discussion but nothing conclusive. George Mason, in arguing that the House of Representatives alone should have the right of originating revenue bills, argued rhetorically that the Senate "could already sell the whole country by means of Treaties” and that “the Senate by means of treaty might alienate territory, etc., without legislative sanction.” (Farrand, Records of the Federal Convention, II, 297] However, it is interesting that such an enormous power in one house of Congress excited little agitation among the delegates. There is no clear indication as to the Convention's mind on the relation between the treaty power and Congress' power to dispose of property.

Attorney General Griffin B. Bell, in his statement before the Senate Foreign Relations Committee on September 29, 1977, emphasized that the Ratifying Convention of Virginia proposed the following amendment to the Constitution : "7th. That no commercial treaty shall be ratified without the concurrence of two-thirds of the whole number of the members of the Senate; and no treaty ceding, contracting, restraining, or suspending, the territorial rights or claims of the United States, or any of them, on their, or any of their rights or claims to fishing in the American seas, or navigating the American rivers, shall be made, but in cases of the most urgent and extreme necessity; nor shall any such treaty be ratified without the concurrence of three-fourths of the whole number of the members of both houses respectively.” Elliot, "Debates on the Federal Constitution,” Vol. 3,

p. 660.

Attorney General Bell argues from this that the Founding Fathers were aware "that the Constitution authorizes self-executing treaties disposing of the territory and property of the United States.” But this conclusion is unwarranted. The same amendment was proposed by the North Carolina Convention (United States : Formation of the Union (Govt. Printing Office, 1927), 1048] The proposals are fully consistent with the interpretation that the assent of Congress is required to a treaty alienating United States territory. The first clause of the proposed amendment asks merely that commercial treaties be ratified by two-thirds of all the Senators rather than by two-thirds of the Senators present. The following restriction, that treaties ceding United States territory shall require ratification by three-fourths of all the members of both Houses is fully consistent with an interpretation that any treaty alienating United States territory already required consent of both houses. What the Virginia and North Carolina conventions sought to do was to fasten on those treaties a requirement for a virtually prohibitive majority, three-fourths of all the members of both houses. One cannot draw from this the conclusion that, because those proposed amendments were not adopted, therefore the House of Representatives is entirely excluded from the process of alienating United States territory by treaty.

The treaty power is very broad but it is not unlimited. “There is nothing in 'the treaty power' which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution.” [Reid v. Covert, 354 U.S. 1, 16 (1957)]

In Holden v. Joy, the Supreme Court noted “there are many authorities where it is held that a treaty may convey to a grantee a good title to [lands belonging to the United States) without an act of Congress conferring it, and that Congress has no constitutional power to settle or interfere with rights under treaties, except in cases purely political." [Holden v. Joy, 17 Wall. (84 U.S.) 211, 247 (1872)] The authorities cited by the Court for this proposition are distinguishable. More importantly, this statement of the Court was only a dictum as the Court said, “it is not necessary to decide the question in this case, as the treaty in question

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