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provisions would not be executed until Congress had passed implementing legislation.15

This narrow and limited view of the scope of the treaty power has long since been rejected." It is now accepted that those grants of power that are not exclusive in nature, in other words, those that permit concurrent jurisdiction, do not require implementing legislation."

The Supreme Court has never issued a comprehensive opinion specifying those powers of Congress regarded as exclusive. However, it has been the practice for the Executive and Senate to seek House consent through implementing legislation when treaties require appropriations or changes in revenue laws.18



The exclusive nature of the appropriations and revenue law powers granted to Congress is readily apparent from the language of the Constitutional provision. Thus, "All Bills for Raising Revenue shall originate in the House of Representatives; . . ."," and, "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; . . .". Other provisions of the Constitution state the legislative powers of Congress in a permissive form, without the mandatory language used in the grants concerning appropriations and revenue powers. For instance, "The Congress shall have Power To . . . establish Post Offices and Post Roads;" "

The language of Article IV, Section 3, clause 2 is permissive, "The Congress shall have the Power . . .". Despite that language, the Supreme Court has constantly ruled that Congress' power to dispose of federal territory and property is exclusive." Those decisions, however, involved situations concerning the locus of authority within the federal system. The Court did not consider the nature of the Congressional power as a limitation on the extent of the treaty power. In fact, Article IV itself is devoted to the distribution of authority between State and Federal governments. For this reason, it is asserted 23 that this Article does not at all pertain to the disposal of federal property by treaty to a foreign nation.

This assertion is entitled to much respect. However, since the matter has never been resolved by the Courts, the scope of Article IV is still unsettled. Some precedent does exist on which to base an argument that Article IV extends to the treaty making power.

Prior to 1872 the federal government concluded treaties with Indian tribes. Many of those treaties gave Indians some interest in federal lands." The Indian Appropriations Act of 1872 25 stated that, thereafter, Indian tribes would not be recognized as independent nations ". . . with whom the United States may contract by treaty:"

The debate surrounding passage of that provision was intense. Members of the House vigorously asserted that the power to dispose of territory was rested exclusively in Congress, and that the treaty power did not encompass the authority to cede land." Since that Act received the blessings of a majority of

155 Annals of Congress 771-772, 4th Cong., 1st sess.

16 Moore, id. at 166; L. Henkin, Foreign Affairs and the Constitution (1972), at 148-149, 155.

17 W. Willoughby, The Constitutional Law of the United States (1910), section 306; Q. Wright, The Control of American Foreign Relations, 1922, section 248. p. 344.

18 Turner v. American Baptist Missionary Union, 24F. Cas. 344 (No. 14251) (C.C. Mich. 1852). It appears that the exclusive nature of the grant concerning changes in revenue laws is as much a matter of political expediency as constitutional necessity. Willoughby, supra note 17, at 559. Henkin, supra note 16. at 149; see also H.R. Rep. No. 1569, 68th Cong., 2d sess. 8 (1925), for a general discussion of implementing legislation.

19 Article I Section 7, cl. 1.

20 Article I, Section 9. cl. 7.

21 Article I, Section 8, cl. 7.

22 Sere v. Pitot, 6 Cr. (10 U.S.), 332 (1810): American Insurance v. Canter, 1 Pet. (26 U.S.), 511 1828) United States v. Gratiot, 14 Pet. (39 U.S.). 526 (1840): Cross v. Harrison, 16 Har. (57 U.S.), 164 (1853); cf. Holden v. Joy, 17 Wall (84 U.S.), 211, 247 (1872), dictum.

23 Statement of Ralph Erickson, supra note 3. at 97.

24 See infra, section II B. for further analysis of the analogy between transfer of land to Indians by treaty, and transfer of the Canal Zone to Panama.

25 16 Stat. 544, 546, c. 120. 41st Cong.. 3d sess.).

28 97 Cong. Globe 764. 766-767, Jan. 26, 1871, 41st Cong., 3d sess., and 99 Cong., Globe at 1811-1812, 1821-1825, Mar. 1, 1871.

both Houses, and was signed by the President, it would appear that the House, Senate and President all concurred in that belief.

The assertion that territory can be ceded by treaty may also be challenged on the basis of language in Sioux Tribe of Indians v. United States 316 U.S. 317 (1942). That case involved a claim by the Sioux that their tribe derived a compensable interest in lands conveyed to them by executive order." The court ruled that no compensable interest had been created. It also found that Presidential power to withdraw land from the public domain was based on a delegation of authority-a delegation implied from long and continued Congressional acquiescence in that executive practice."

The following language from the Sioux decision is pertinent to our inquiry as to the nature of the Article IV power when it involves a disposal to a foreign nation.

Concededly, where lands have been reserved for the use and occupation of an Indian Tribe by the terms of a treaty or statute, the tribe must be compensated if the lands are subsequently taken from them. . . 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. The basis of decision in United States v. Midwest Oil Co. was that, so far as the power to withdraw public lands from sale is concerned, such a delegation could be spelled out from long continued Congressional acquiescence in the Executive practice. The answer to whether a similar delegation occurred with respect to the power to convey a compensable interest in these lands to the Indians must be found in the available evidence of what consequences were thought by the Executive and Congress to flow from the establishment of Executive order reservations."

The court recognized that the nature of title held by Indians on Executive order reservations was distinguishable from the interest possessed by them in statute or treaty reservations.30

If a Congressional delegation of authority was found necessary to create a compensable interest in lands granted to Indians by Executive order, it seems possible that a Congressional delegation of authority would be necessary to convey a total interest in lands to a foreign power-whether the conveyance is by treaty or Executive order.

It does not appear that there is any clear answer to be obtained from the Constitution as to the exclusive or concurrent nature of the Article IV practice as it relates to the disposal of property to a foreign power. Therefore, it is advisable to look to the past treaty practice of the United States in order to determine if that practice reveals precedent that may be considered controlling. B. Treaty Practice

Territory and property have, in the past, been ceded by treaty without accom. panying implementing legislation. Are these instances valid precedent for the proposition that the House of Representatives has no role in the disposition of federal property?

1. Treaties involving boundary claims.—On numerous occasions in its history, the United States has concluded treaties with foreign powers in order to adjust or locate its borders. These boundary treaties are often cited to support the proposition that federal lands have, in the past, been ceded by treaty." It is submitted that most, if not all of these "cessions" involved circumstances in which the other party to the treaty had. in its own mind, well founded claims to the land in question. Two examples will indicate the disputed nature of lands "conveyed" in those treaties.


Although the transfers at issue occurred after the Indian Appropriations Act of 1872, the court indicated that the practice of withdrawing lands from sale by executive order for the purpose of establishing Indian Reservations extended back to 1855. See infra, at section II. B, 3, for an expanded discussion of the quasi foreign-dependent status of the Indian tribes.

Sioux, at 324–326; see also, United States v. Midwest Oil Co., 236 U.S. 459, 464–470 (1915).

29 Siour at p. 326, citation omitted.

Siour at 329.

See statements of Erickson and Hansell, supra note 3.

Other "cessions" referred to are the Treaty of Amity Settlement and Limits, with Spain, 1819 to settle our southern boundary (Florida); and Conventions with Mexico in 1933 and 1963 concerning border problems with that country.

In the Webster-Ashburton Treaty of 1842, both Britain and America made concessions on claims to some twelve thousand square miles of land on the Maine/New Brunswick boundary. At the time the treaty was being negotiated, it appeared that Britain had a valid claim to much of the disputed land. After the treaty was ratified, it was learned that the United States had ceded land to which it did have a valid claim. Nevertheless, (1) when ceded, the territory was considered to be disputed, and (2) the British made concessions on other points on our northern boundary, in areas that later proved to contain valuable mineral resources."


Britain and the United States also had conflicting claims in the Oregon territory. American claims to land to the extent of fifty-four degrees forty minutes were met by British claims for land down to the forty-second parallel. Settlement was reached on a 49 degree boundary. One noted historian has written that, “On the basis of claims and possession, the English made the real sacrifice." "

It is submitted that instances of boundary resolution do not provide conclusive support for the proposition that the treaty making power extends so far as to include the power to dispose of federal lands without implementing legislation. "A treaty for the determination of a disputed line operates not as a treaty of cession, but of recognition."

2. Other cessions by treaty and executive agreement without express legislative authorization.

One primary example of a cession of property by Executive agreement is the Lend-Lease program. President Roosevelt sent ships and other military material to Great Britain in exchange for rights in various British territories. AttorneyGeneral Robert Jackson supplied the President with an opinion finding authorization for the disposal of property without implementing legislation in the President's exclusive powers as Commander-in-Chief. However, Mr. Jackson also found statutory authority supporting the disposal, and therefore found it unnecessary to rely on the President's inherent constitutional authority."


Current legislative authorization for transfer of American property to foreign nations by the Executive may be found in Title IV (Foreign Excess Property) of the Federal Property and Administrative Services Act of 1949, P.L. 81-152, 63 Stat. 377, c. 288, June 30, 1949, codified at 40 U.S.C. 511-514. Those sections authorize the disposal of foreign excess property by executive agencies. In addition, Part II (International Peace and Security Act of 1961) of the Foreign Assistance Act of 1961, P.L. 87-195, 75 Stat. 424, September 4, 1961 codified at 22 U.S.C. 2311-2320, authorizes the President to transmit (under certain conditions) defense articles and services to other countries.

A recent example of a cession of territory and property by the United States is the agreement concerning the Ryukyu Islands and the Daito Islands 23 UST 446; TIAS 7314. That Agreement was signed in June 1971, received the advice and consent of the Senate in November 1971, and ratified in January 1972. The ratifications were exchanged in March 1972, and the Agreement entered into force in May of that year.

By Article I of the 1972 agreement, the United States relinquished in favor of Japan all rights and interests it received under Article III of the 1951 Treaty of Peace with Japan: 3 UST 3169; TIAS 2490. In Article III of the 1951 Treaty, the United States received the right to exercise ". . . all and any powers of administration, legislation and jurisdiction over the territory and inhabitants of these islands, including their territorial waters."

The question that arises is whether the 1972 transfer of interests back to Japan involved cession of territory, in a Constitutional (Art. IV) sense.

An Armed Services Committee Report" (on a bill concerning economic and social development in the Ryukyu's) recognized that the Ryukyu's were not United States Territory and that American statutory law was generally inapplicable there. However the Committee used very strong language in stressing the nature of the United States interest in the area. It was stated that the United States possessed "de facto" sovereignty and that (after the 1952 Treaty) Japan possessed only a "residual" sovereignty; the only right Japan retained was

33 A. DeConde, A History of American Foreign Policy, 1963, pp. 155-162. 34 Id. at 174.

25 S. Crandall, supra note 2, at p. 226.

36 39 Op. A.G. 484. Aug. 27, 1940.

37 H.R. Rep. No. 723, 90th Cong., 1st sess. (1967).

the right to expect that the United States will not transfer the Ryukyu's, including Okinawa, to any third party." The report concluded that the Committee's approval of the legislation was—

. . given with the clear understanding that U.S. administrative control of the Ryukyus and the continued maintenance and operation of the U.S. Base there are inseparable and that, therefore, the United States will continue to retain its jurisdiction over these islands so long as required by the security interests of the United States."

However, there is also reason to believe that the United States did not have territory to cede. In Article II of the 1951 Treaty, Japan renounced "... all right, title and claim to various pieces of territory. There was no similar renunication as regards the territory discussed in Article III (concerning the Ryukyu's and Daito Islands). This implies that the Japanese retained their "right, title and claim" to the Ryukyu's.


Three courts have reached the conclusion that the United States never received sovereignty over this territory. In United States v. Ushi Shiroma, the opinion contains excerpts from a letter written by the Legal Adviser of the Department of State:

"1. A legal opinion is requested on the request of the Japanese Vice Minister for Foreign Affairs dated 10 December 1951, that the United States confirm that the 'Southern islands' (the Ryukyus and the Bonins) remain under the sovereignty of Japan and that their inhabitants remain Japanese nationals.

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"6. It is concluded that sovereignty over the Ryukyu and Bonin Islands remains in Japan, and that the inhabitants thereof are Japanese nationals." In a statement before the Senate Foreign Relations Committee, Secretary of State Rogers discussed the nature of Japan's interest in the Ryukyu's.


On September 5, 1951, in presenting the draft of the peace treaty to the Peace Conference, Ambassador John Foster Dulles noted that some of the allied powers had urged that the treaty require Japan to renounce its sovereignty over the Ryukyus in favor of U.S. sovereignty. Others had proposed that the islands be restored completely to Japan. "In the face of this division of allied opinion," Ambassador Dulles said, "the United States felt that the best formula would be to permit Japan to retain residual sovereignty, while making it possible for these islands to be brought into the United Nations trusteeship system, with the United States as administering authority."

It was decided at that time that although the United States had long-term security interests in the Ryukyus, the "peace of reconciliation," which we and most of our allies sought with Japan, would be vitiated by the islands' enforced, permanent detachment from Japan. The "residual sovereignty" formula was clearly designed to convey the thought to Japan and to the world that although the United States was obliged to retain control of the Ryukyus temporarily for security reasons, what had been Japanese territory was not being permanently detached from Japan and the principle of no U.S. territorial acquisitions as a result of war was being observed."

As in the boundary dispute cessions, a question exists as to whether the territory transferred belonged to the U.S. The Ryukyu Island cession, therefore, is not conclusive as to the right of the Executive to cede federal territory without implementing legislation.

The 1972 cession did convey a good deal of federal property to the Japanese. This property seems to have been conveyed without Congressional approval. However, this transfer also seems not to be binding precedent for the following reasons.

(1) The Congress may have assumed that the Executive acted pursuant to powers contained in the Foreign Assistance Act of 1961 or the Federal Surplus

38 Id. at p. 6.

39 Id. at 16.

40 123 F. Supp. 145, 149 (Hawaii, 1954).

41 Id., see also Burna v. United States, 142 F. Supp. 623 (E.D.VA., 1956 affirmed, 240 F. 2d 720 (4th Cir., 1957).

42 Reprinted as 92 Cong. Rec. 40371, November 10, 1971.

Property Act of 1949. (It does not appear that the President ever submitted reports required by those Acts. However, the fact that Congress did not demand the reports does not mean that these Acts were not the source of the President's power to convey the property.)

(2) The Japan-United States Friendship Act P.L. 94-118 (1975) contains language 22 U.S.C. 2901 (a) (2) that may be seen as a Congressional validation of the Executive action.

(3) Since Congress supported the transfer, it is possible that she may have not insisted on exercising her Article IV rights in this instance. If this is true, such a voluntary lapse does not preclude Congress from insisting upon exercise of that right at a later date.

3. Treaties with the Indian tribes.—It has been contended" that the practice of conveying land to Indian Tribes by treaty during the nineteenth century sup ports the proposition that implementing legislation is not necessary in order to convey territory and property in the Canal Zone to Panama. Conveyances to the Indian Tribes appear to be distinguishable for several reasons.

First, the status of the Indian American law is both unique and complex. Although it has been recognized that the Indians comprised a distinct people, the equivalent of nations, who could be dealt with by treaty," it is also well established that, since the founding of our government, Indians have been considered as dependent political communities, wards of the nation, or in a state of pupilage to the United States."

It is similarly well established that, through discovery and conquest of the "New World", the European nations, and eventually the United States, obtained title to the land, title that was complete, subject only to the continued use and occupancy of Indian Tribes on certain lands."

The land interests received by the Indians in agreements with the United States government varied. In some cases the United States only recognized a right to continued occupancy and use of certain lands; in other cases, the United States granted, by treaty, a fee simple interest."7

When the Indian tribes were granted land in fee, however, their interest in that land was no more extensive than the interest of any other fee simple owner of land in the United States:

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.


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.49

At least one authority has commented that in most of the treaty grants to the Indians the United States retained a higher interest than a mere right of eminent domain."

If the proposed treaty recognizes that Panama has a complete sovereignty over the Canal Zone, any conveyance of territory and property will be absolute.

43 See Salans, Erickson and Hansell, supra note 3.

44 Worcester v. Georgia, 6 Pet. (31 U.S.), 515. 558 (1832).

45 Cherokee Nation v. Southern Kansas, R. Co. 135 U.S. 641 (1890); Jones v. Meenan, 175 U.S. 1, 10 (1890).

46 Johnson and Graham's Lessee v. McIntosh, 8 Wheaton (21 U.S.), 543 (1890).

47 Lone Wolf V. Hitchcock, 187 U.S. 553, 564-565 (1903); United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 345, 347 (1941); L. Schmeckebier, The Office of Indian Affairs, 1927, pp. 5-6.

48 Cherokee v. Southern Kansas R. Co., supra note 45, at 655-659.

49 Schmeckebier, supra note 47: The Non-Intercourse Act (1 Stat. 137, originally passed in 1970 and currently codified at 25 U.S.C. 177) limits the situations in which Indians can transfer tribal lands to those situations when the grant is effected ". ... by a treaty or conventions entered into pursuant to the Constitution.

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