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 (1972)] The authorities cited by the Court for this proposition are distinguisable. 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 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 Constitution 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 geo-
graphical limits of the United States, are held sub-
ject to the authority of the general government to
take them for such objects as are germane to the exe-
cution 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 Diplomatic 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. 21

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 of 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.