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has been fully carried into effect, and the provisions have been repeatedly recognized by Congress as valid." [Ibid.)
In Asakura v. Seattle, 256 U.S. 332, 341 (1924), the Supreme Court said, “The treaty-making power of the United States is not limited by any express provision of the Constitution, and, though it does not extend 'so far as to authorize what the Consitution forbids, it does extend to all proper subjects of negotiation between our government and other nations." The Court also noted that the treaty in that case "operates of itself without the aid of any legislation, state or national; and it will be applied and given authoritative effect by the courts." But the treaty involved in Asakura was one recognizing the right of Japanese subjects to "carry on trade" in the United States. It did not involve in any way the power to dispose of United States property granted to Congress in Art. IV, Sec. 3, cl. 2, of the Constitution.
In Geofroy v. Riggs, 133 U.S. 258 (1890), a convention with France guaranteed the right of French citizens to inherit property in the United States. The Court held that the convention prevailed over the contrary law of Maryland so as to authorize the inheritance by a French citizen of property in the District of Columbia. "The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent. Fort Leavenworth Railroad Co., v. Lowe, 114 U.S. 525, 541. But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country. Ware v. Hylton, 3 Dall. 199; Chirac v. Chirac, 2 Wheat. 259; Havenstein v. Lynham. 100 U.S. 483; 8 Opinions Attys. Gen. 417; The People v. Gerke, 5 California, 381."
However, while the convention was in effect, Congress adopted the Maryland law as the law of District of Columbia, but suspended that law insofar as it conflicted with the convention. This amounted to a clear adoption by Congress of the terms of the convention. More significantly, the Geofroy case did not involve the transfer of any property owned by the United States. The dictum in the Geofroy case is very broad but its generalizations should be limited to the facts of that case.
While judicial decisions do not comprehensively define Congress' property disposal power in relation to the treaty power, there are several instances where the accepted practice among the Congress, Executive and the Judiciary, has supported the conclusion that Congress' power is exclusive.
Many treaties and executive agreements with Indian tribes have involved the transfer of real property. But even where the treaty or executive agreement conveyed to the Indians the land in fee simple, which is the maximum interest which has been conveyed to Indian tribes, it appears that such land was held by the Indians subject to the power of the United States to exercise eminent domain. In Cherokee Nation v. Southern Kansas R. Co., (135 U.S. 641 (1890)), the Supreme Court noted :
“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.
* “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. [135 U.S. at 656-57]"
In Sioux Tribe of Indians v. United States [316 U.S. 317 (1942)], the Supreme Court ruled that the Sioux did not obtain a compensable interest in lands granted to them by executive order so as to entitle them to payment where the lands were restored to the public domain by a later executive order. The Court was of the opinion that "executive order reservations" did not grant a compensable
interest to the Indians. Such an interest was granted only in reservations made by “treaty or statute.” In the latter cases, the power of the Executive depended on congressional approval : "Since the Constitution places the authority to dispose of public lands exclusively in Congress, the Executive's power to convey any interest in these lands must be traced to Congressional delegation of its authority." [316 U.S. at 326)
The Indian treaties cannot be regarded as authority for the conveyance of United States property to a foreign power by treaty without Congressional authorization. Even where those treaties or agreements conveyed a fee simple interest, that interest remained subject to the United States power of eminent domain. And even the conveyance of that interest, according to the Sioux case, required a Congressional delegation of authority to the Executive. It follows that the complete and total surrender of sovereignty involved in the Panama Canal Treaty should require Congressional action even more strongly than the Indian treaties.
Another illuminating type of case from past experience is the sort of treaty involving settlement of boundary claims. For example, the Webster-Ashburton Treaty of 1842, ceded land to Great Britain which had been under dispute. (8 Stat. 572] Congress implemented the treaty by appropriating money to carry out the terms. (See Ch. 89, 5 Stat. 623] The 1846 Oregon Treaty also involved the cession to Great Britain of United States claims to land then in dispute. [9 Stat. 869] Congress implemented the treaty by passing an act to organize the government of the Oregon Territory. [9 Stat. 323]
The Alaska Treaty of 1903 [32 Stat. 1961] established a tribunal to settle boundary disputes with Great Britain. The tribunal awarded some of the disputed territory to the United States and some to Great Britain. (See Bemis, A Diplomatio History of the United States (1965), 427) Congress implemented the treaty by appropriating funds to carry it out in 1903. (32 Stat. 1083)
The Chamizal Convention with Mexico in 1963 provided for the transfer of certain lands to Mexico. The convention provided : “After this convention has entered into force and the necessary legislation has been enacted for carrying it out, the two Governments shall *** determine the period of time appropriate for the Government of the United States to complete the following: (a) The acquisition, in conformity with its laws, of the lands to be transferred to Mexico." (15 U.S. T. 2]
Congress thereafter enacted legislation to authorize the Secretary of State "to acquire by donation. purchase, or condemnation, all lands required for transfer to Mexico as provided in said convention” and “to convey or exchange to Mexico properties acquired.” [78 Stat. 184]
The major point to be made about boundary dispute treaties is that they are different from the Panama Canal Treaty which does not involve disputed land. Where there is a colorable claim to full ownership and sovereignty presented by both parties to a settlement treaty, it cannot be said to involve an unambiguous transfer of "Territory or other Property belonging to the United States", within the meaning af Art. IV, Sec. 3, cl. 2. Those boundary settlement treaties, even were they found to be lacking in Congressional approval, are not controlling on the Panama Canal Treaty issue.
The Lend-Lease program, instituted in 1940, involved the transfer of United States property to Great Britain. However, Attorney General Robert Jackson, in his opinion to the President, found that there was "ample statutory authority" for the disposal. It was therefore unnecessary to rely on Presidential authority alone. [39 Op. A.G. 484, 488 August 27, 1940)
in 1972, a treaty went into effect for the transfer by the United States to Japan of all rights and interests it had received to the Ryukyu and Daito Islands by the 1951 Treaty of Peace with Japan. However, as Secretary of State Rogers pointed out in testimony before the Senate Foreign Relations Committee, the Japanese retained under the 1951 Treaty of Peace "residual sovereignty." More. over, the transfer pursuant to that treaty seems to have been authorized by the Japan-United States Friendship Act of 1975. [22 U.S.C. 2901 (a) (2) ]
In 1897, Attorney General John W. Griggs issued an opinion on the alienation by the President or Secretary of War of United States property in Puerto Rico to a private person. The Attorney General said, "there is no legislation by Congress made for or properly applicable to the public domain in Puerto Rico. The power to dispose permanently of the public lands and public property in Puerto Rico rests in Congress, and in the absence of a statute conferring such power,
cannot be exercised by the Executive department of the government." [22 Op. Att'y. Gen. 544, 545 (1899) ]
With respect to the Panama Canal Zone itself, the 1942 Congressional proceedings involving an executive agreement transferring land and property in the Canal Zone to Panama are instructive. The transfer was effected by executive agreement which was then submitted to both houses for approval. It was objected by some Senators that it should have been done by treaty. Senator Connally, Chairman of the Senate Foreign Relations Committee, responded to these objections:
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. 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. (88 Cong. Rec. 9267)
In the House of Representatives, the Committee on Foreign Affairs stated in its report: "Congressional approval of the Executive commitments to Panama is sought in the form of legislation because there is involved (a) a disposition of property of the United States and (b) an appropriation of funds, both requiring an exercise of the legislative power, independently of the treaty-making power.” [House Report No. 78–271, p. 6]
There is abundant authority that Congress' power under Art. IV, Sec. 3, el. 2; is "without limitations" in contexts other than the present sort of treaty controversy. [Annotation, 496, Ed. 2d 1239, 1246] Nor is there any sufficient reason for treating that Congressional power as less extensive in the treaty context. Art. IV, Sec. 3, cl. 2, represents a decision by the Constitutional Convention and the States to protect the property of the United States by ensuring that the disposition would be the prerogative of the United States government and not of the individual states. Moreover, the specific grant of that power only to Congress was not accidental. As the most broadly representative branch of government, it is appropriate that Congress is the only body to alienate from the American people that which is theirs. The treaty power does not confer on the President and twothirds of the Senate a power to change the constitutional distribution of powers in any respect. Such power is not necessary to the orderly conduct of foreign relations. And its recognition would undermine public confidence in the representative character of the United States Government.
It must be remembered that Senate ratification of a treaty requires approval of "two-thirds of the Senators present." Executive agreements, which are very similar in power to treaties, [See United States v. Belmont, 301 U.S. 324 (1937); United States v. Pink, 315 U.S. 203 (1942)] do not require any Congressional consent at all.
I hope that the consideration of the Panama Canal treaties, including particularly the treaty providing for transfer of United States property, will provide an occasion for the reaffirmation of the Congressional power with respect to the disposition of the territory or other property of the United States. Congress' power in this area ought to be regarded as exclusive. The American people ought to be deprived of their territory and property only by action of that governmental body most responsive to public opinion. That body is the entire Congress and most especially the House of Representatives.
STATUTORY AUTHORITY FOR CERTAIN TRANSFERS OF UNITED STATES PROPERTY IN THE ISTHMUS OF PANAMA
A. General provisions
2 C.Z. Code 2 (Aug. 24, 1912, 37 Stat. 650) authorizes the President by treaty with Panama to acquire additional land for maintenance, operation, sanitation or protection of the Panama Canal and the Canal Zone or epchange land not necessary for those purposes. (emphasis added)
2 C.Z Code 331 (Aug. 24, 1912, 37 Stat. 560) authorizes the President to declare by Executive Order that land in the Canal Zone is necessary for construction, maintenance, operation, sanitation or protection of the Panama Canal and to extinguish "claims and titles of adverse claimants and occupants."
NOTE.The President exercised this authority in an Executive Order dated December 5, 1912.
2 C.2. Code 333–334. Governor authorized to issue revocable licenses covering use of land in the Canal Zone.
20. 2. Code 65. Panama Canal Company authorized to purchase, lease or other. wise acquire, and sell, lease, exchange, convey lands, leaseholds and other property necessary or appropriate for any of the purposes expressed in the law providing for operation of the canal and conducting business operations incident thereto. B. Specific authorizations
1. Act July 10, 1937 (50 Stat. 511) (Pub. Res. No. 54, 75th Cong.) authorized Panama Railroad Company to sell certain lands on Manzanillo Island (City of Colon) and release reversionary rights of U.S. therein.
2. Act of May 3, 1943 (57 Stat. 74):
a. Authorized the President to transfer to the Republic of Panama all the rights, title and interest of the United States in and to the water and sewage systems in the cities of Panama and Colon.
b. Authorized the Panama Railroad Company to convey to the Republic of Panama lands owned by the Company in the cities of Panama and Colon, no longer needed for the operation of the railroad or the operation, maintenance, sanitation or defense of the canal.
NOTE.--A General Relations Agreement between the United States and Panama effected by an exchange of notes May 18, 1912, provided for (a) transfer of the water and sewer systems to Panama "When the authority of Congress shall have been obtained" and that (b) the President "will seek the authority of Congress" to transfer certain Panama Railroad land in the cities of Panama and Colon. (EAS 452 ; 59 Stat. 1289)
3. Act Aug. 30, 1957 (P.L. 85–223; 71 Stat. 509):
a. Declared the purpose of the Act to "authorize and direct” the fulfillment of those provisions of the 1955 treaty between the U.S. and Panama "which contemplate, subject to authorization by the Congress, the conveyance of various lands and improvements to the Republic of Panama."
b. Authorized the conveyance to Panama of the rights, titles and interest of the United States and Panama Canal Company in accordance with Article V of the 1955 treaty and item 2 of the Memorandum of Understandings accompany the treaty.
NOTE.-—The 1955 Treaty and Accompanying Memorandum of Understandings Reached (TIAS 329) contained the following provisions concerning property of the United States on the Isthmus of Panama :
(1) Art. V. The U.S. agreed that “subject to the enactment of legislation by the Congress," all the right, title and interest of the United States in lands and improvements described in paragraph 2 of the Memorandum of Understandings "no longer needed for the operation maintenance, sanitation or protection of the Panama Canal or its ancillary works, or for other authorized purposes of the United States in the Republic of Panama,” as well as the Inad known as Patilla Point, then part of the Canal Zone.