and 61, Senator Morris said: "One last question: It appears from the testimony that you have given thus far that considerable legislation will be required to implement this treaty. Do you think it would be possible for the Department of State to furnish the committee with a statement detailing what that legislation will have to be?"

Mr. Holland said, "Yes, we can, Senator."

Then Senator Morris said, "If the treaty calls for legislation after the Senate has given its advice and consent we ought to know something about the necessary legislation that will follow. It might conceivably have a bearing upon the Senate giving its advice and consent." Mr. Holland said, "We intend to submit such legislation to you, Senator."

Senator Morris said, "Thank you very much."

What I have read from these hearings tends to back up what Mr. Leonard said earlier in the day. I do agree with the distinguished Chairman here that Holden v. Joy certainly does not stand with the propositions enumerated or enunciated in your statement here. Holden v. Joy involved the Cherokee Indian Nation and an exchange of lands. The administration wanted to get them West of the Mississippi. Mr. MEEKER. That is correct.

Senator HATCH. So they exchanged lands East of the Mississippi for lands West of the Mississippi and then had it ratified by Congress, but they also had a bill approved by Congress as I understand it. There was legislation approved by Congress.

Mr. MEEKER. There was legislation that was enacted 2 years after the treaty. What I was referring to was the statement in the Supreme Court's opinion, which said: "Even without the legislation there are grounds for sustaining this treaty as being a valid and effective conveyance of lands."

Senator HATCH. If I might just detain you on that point the statement was basically this: It is dictum, meaning not a holding, not the rule of law in this case-for those who are not attorneys.

The Court said on page 247 that the Supreme Court report of December, 1872:

Suppose that is so. Still it is insisted that the President and the Senate in concluding such a treaty could not lawfully have to issue and convey lands which belong to the United 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 the grantee a good title of such lands without an Act of Congress conferring it if the Constitutional power to settle or interfere with rights under treaties except in cases purely political.

That is pretty clearly dictum.

Mr. MEEKER. I think that is correct.

Senator HATCH. Since it is dictum I do not think we should provide that as an assertion. I do not mean to be critical of you. I appreciate your testimony. I appreciate your desire to enlighten us here, but your statement was in regard to the conveyance of title to lands. In that regard the Supreme Court stated the dictum that "A treaty can convey to a grantee good title to land without an act of Congress, "but it should be added that this was an exchange of lands involving Cherokee Indians, who are citizens of the United States.

That is hardly the situation that we are discussing today. That is the only case that you have been able to come up with on that very crucial point.

Do you know of any others?

Mr. MEEKER. That is the only case that I know of on transfer of land. Of course, there are many cases on the analogous situation under powers of Congress that derive from article I, section 8.

Senator HATCH. On the other hand, you say that there are many cases that say that you cannot transfer title to American property without congressional legislation. Many of these cases were cited this morning in Mr. Leonard's statement. In those particular cases the Supreme Court is taking a very hard line, and I know of no exception that would provide a means whereby you could say that there is an analogy similar to article I.

Mr. MEEKER. It is quite true that there are numerous cases saying that Congress must authorize the transfer of property, meaning that the President or the executive branch alone cannot do so. However, there is no case whatever that says that the President and the Senate, acting through exercise of the treaty power, cannot transfer territory or other property.

In fact, the closest analogies are analogies under article I, section 8, concerning the power to regulate commerce, the power to promote the progress of science and useful arts, or the power to lay and collect taxes, duties, imposts, and exercises.

Under all of those the Supreme Court has upheld treaties which asserted and exercised a concurrent power with the power of Congress. Senator HATCH. I do not mean to usurp the chairman's time.

Senator ALLEN. I was just going to point out at that point that those who drafted the 1955 treaty obviously thought that action by the Congress was necessary because they predicated the whole treaty on subsequent action by Congress. I would call your attention to article V of the 1955 treaty.

"The United States of America agrees that subject to enactment of legislation by the Congress" lands and territory would be conveyed to the Republic of Panama. So in 1955 they recognized the necessity of getting Congress to approve the disposition of land. What has changed?

Mr. MEEKER. I think that would not be recognition of a necessity to get congressional approval, but would be—

Senator ALLEN. It would not be recognition of what?

Mr. MEEKER. I think that it would not be recognition of a necessity to get approval by Congress, but a choice to follow that route under article V, and also a choice to follow the other route under articles VI and VII where the treaty alone was to be effective without legislation. Senator ALLEN. The Panama Canal Act gives to the PresidentI am reading here from Public Law 377, H.R. 21969-gives to the President: "Power to exchange any land or lands under water not deemed necessary for such purposes or other land or lands under water which may be deemed necessary for such purposes."

In other words, they had advance authority and they obviously did not take any subsequent authority if they had advance authority. So even if Mr. Holland was correct in saying that articles VI and VII did require authorizing legislation apparently that requirement was made in advance by the congressional act.

Mr. MEEKER. In fact, what Mr. Holland said, I gathered, was that he thought legislation would properly have been sought in regard to article V.

Senator ALLEN. Apparently the Congress had already given the authority for boundary adjustments under the Canal Act.

Mr. MEEKER. From what year is that statute that you were just reading from?

Senator ALLEN. This is the original Panama Canal Act, which gives the right to exchange property and thereby to rectify boundaries.

Mr. MEEKER. Going back to the Spooner Act in 1902?

Senator ALLEN. No. I believe the time of it was later.

Senator HATCH. If I might interrupt again, I think that was a mistake. Apparently no one followed up on that, but even so, this would be covered by the Spooner Act itself.

Senator ALLEN. The date of the Panama Canal Act was 1912.

Senator HATCH. I think the clear intention of Mr. Holland was to submit legislation and approve the whole action. However, the distinguished chairman has pointed out that even if he did not submit legislation they could exchange lands under the original act. Therefore, it really was a mistake.

Mr. MEEKER. Well, I think articles VI and VII, though, did not involve an exchange. I could see the application of the 1912 statute to exchange, but I think in 1955 árticles VI and VII simply reconveyed to Panama some lands that had been obtained initially and were considered no longer to be needed.

Senator ALLEN. On the exchange, though, in this statute it says, "exchange any land or land under water not deemed necessary for such purpose, or other land or land under water that may be deemed necessary."

Mr. MEEKER. That would be for an exchange.

Senator ALLEN. Yes. My thought was that an exchange might be involved in a boundary adjustment.

Senator HATCH. What was conveyed if it wasn't exchanged or if it was not a negotiated dispute?

Senator ALLEN. In any event, if it was not an exchange, articles VI and VII go back under the principle of the boundary line precedents, which apparently do not take approval.

Mr. MEEKER. There was no new land granted to the United States in 1955 by Panama.

Senator HATCH. Was there any new land granted to Panama?

Mr. MEEKER. It was part of the original conveyance, which the 1955 treaty reconveyed to Panama on the ground that it was no longer needed for purposes of the Canal.

Senator ALLEN. Well, actually, to straighten out a boundary running along a few city blocks could hardly be comparable to divestiture of the Panama Canal or of the Panama Canal Zone.

Mr. MEEKER. There is a big difference, naturally, between transferring a relatively small area and the whole area.

Senator ALLEN. I understand also that under article V, which did involve a substantial amount of land, the property was not authorized by the Congress to be conveyed. Do you recall that being the

case?

Mr. MEEKER. That I do not know.

Senator ALLEN. Apparently Congress did retain a veto there and in fact did not make the conveyance.

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So that makes it pretty positive that it would require the Congress to ratify the disposition or in fact dispose of it by act.

Mr. MEEKER. That was true with respect to the Article V land. Senator ALLEN. I have no further questions.

Senator Hatch?

Senator HATCH. Mr. Meeker, I would call your attention to one Indian case that really is holding, not dictim. That was the Sioux Tribe of Indians v. the United States case, where it was held that 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.

It is a very interesting case, but in that particular case that was a holding.

Mr. MEEKER. Was there a treaty there which was invalidated? Senator HATCH. I am not sure, but I do not think that there was. Mr. MEEKER. I think, unless there was a treaty which was held to be ineffective, you would not have a holding that Congress must act under article IV.

Senator HATCH. I think maybe both of us should look that case up and check it out.

Mr. MEEKER. Yes.

Senator HATCH. I think we both have to admit that the other was clearly dictum.

Mr. MEEKER. Yes. Holden v. Joy was dictum.

Senator HATCH. Do you not at least think that it would be wise and proper for the State Department to come to Congress for authority before entering into these negotiations? There has been a lot of frustration about this and there is a lot of acknowledgement by the various executives in times past that they need to do this.

There is considerable precedent for requiring congressional approval, even though some of the precedents involved authorization after the treaty was agreed to. In this particular case, though, knowing that the American people are so upset about this, and knowing that there may be a majority of the American people who are against the transfer of the Panama Canal to Panama, don't you think it would have been far preferable for the State Department to come to Congress before entering into negotiations?

Mr. MEEKER. These negotiations were begun a long time ago. In fact, they were begun back in the administration of President Johnson. I think that Mr. Linowitz himself was to some degree concerned with them at an earlier time than now.

Possibly one reason for not coming to Congress for a formal action such as a statute or a joint resolution was the lack of knowledge as to what a new treaty might contain. I suppose

Senator HATCH. Couldn't they at least have come to Congress and said, "Look, we want to go down and negotiate with them because they are upset. We may have to negotiate better terms with them, or we may have to do this or that."

I think Congress may very well have given them the consent to go down and negotiate subject to final approval by legislation by Congress.

Mr. MEEKER. I assume that, both in the administration of President Johnson and later, the President and the State Department did certainly consult informally with Members of Congress about this, and probably did so many times along the way.

Certainly, they would not need an authorization from Congress in order to negotiate with Panama, because the Constitution does make very clear that the conduct of negotiations with foreign countries is an Executive function. What lies with Congress is provided for elsewhere in the Constitution, and of course the making of a treaty is for the President and the Senate acting together.

I would be very surprised, indeed, if the President and the State Department had not consulted with Senators and with members of the House on many occasions concerning the Panama problem, which has been a long and difficult one, and very complicated and not yet solved today.

Senator HATCH. Well, if it is a matter of not knowing what the negotiations are, why didn't they bring the Kissinger-Tack agreement to Congress? That was a definitive agreement.

Mr. MEEKER. That question would probably have to be addressed to those who were responsible for making it, but I guess they considered that this was a preliminary outline rather then the treaty. Obviously, the treaty would come to the Senate later.

Senator HATCH. Mr. Chairman, I do not have any further questions, I want to thank you for coming, Mr. Meeker, and I will certainly review your testimony again after today.

Senator ALLEN. Thank you very much, Mr. Meeker. We appreciated your fine testimony and your courtesy in coming before the committee.

Mr. MEEKER. Thank you, Mr. Chairman.

Senator ALLEN. The committee will stand adjourned until next Friday morning at 8 a.m.

[Whereupon, at 4:54 p.m., the subcommittee stood in recess to meet July 29, 1977.]

[The following letters and statements were subsequently supplied for the record:]