title did he take. The Court quoted from an opinion of Attorney General Roger Taney, destined before long to succeed Chief Justice Marshall: "these reservations are excepted out of the grant made by the treaty, and did not therefore pass with it; consequently the title remains as it was before the treaty; that is to say, the lands reserved are still held under the original Indian title.'

The Court held that "the reservation, unless accompanied by words limiting its effect, is equivalent to a present grant of a complete title in fee simple." 30 That explanation presumably responded to the fact that tribal lands were generally held in common; individual titles were all but unknown, so that such title had to be secured through the machinery of the treaty. But that is far from a disposition of government land because, as Taney explained, the "reserved" title remained in the Indians. Many, if not most, of the cases of Indian treaties involve just such "reserve" provisions."

31

The quotation from Holden v. Joy, Erickson acknowledges, is dictum; notwithstanding Hansell relies on it as "a clear statement of the law": 32

It is insisted that the President and the Senate, in concluding such a treaty, could not lawfully covenant that a patent should be issued to convey lands which belonged 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 a grantee a good title to such lands without an act of Congress, and that Congress has no constitutional power to settle or interfere with rights under treaties, except in cases purely political.

33

What bearing the last clause has on Congress' "power to dispose" of public lands escapes me; this Delphic utterance surely does not overcome the clear terms of Article IV. As to the "many authorities," the Court's citation could hardly be farther afield. To avoid cluttering this statement with a minute analysis of each case cited by the Court for the assertion that "a treaty may convey to a grantee a good title... without an act of Congress," I have abstracted them in an appendix attached hereto, so that you may see for yourself that half of the cases thus cited are altogether irrelevant, and that the rest concern "reserves" under which, as Taney observed, no title had passed to the United States but remained in the given Indians. In considering such dicta, it is well to bear in mind Chief Justice Taney's statement that the Court's opinion upon the construction of the Constitution is always open to discussion when it is supposed to have been founded in error, and that its judicial authority should hereafter depend altogether on the force of the reasoning by which it is supported." By that standard the Holden dictum is no authority at all.

34

The inappositeness of Holden is underscored by the facts. In May, 1828, and February, 1833, "the United States agreed to possess the Cherokees of seven million acres of land west of the Mississippi." It "was the policy of the United States to induce Indians *** to surrender their lands and possessions to the United States and emigrate and settle in the territory provided for them in the treaties.” so an exchange of land was provided. But a third treaty, that of December, 1835, proved necessary, whereby the Indians ceded their lands to the United States in consideration of $5,000,000 to be invested in the manner stipulated. The Indians considered that the prior treaties, confirmed by the new, did not contain a sufficient quantity of land, so the United States agreed to convey an additional tract in consideration of $500,000 to be deducted from the $5,000,000. This may be viewed either as a purchase and sale or an exchange: "the Cherokees were competent to make the sale to the United States and to purchase the lands agreed to be conveyed to them. * * *" And the transaction was authorized by the Act of 1830, which empowered the President to set aside land west of the Mississippi for the reception of such tribes as chose to emigrate, and to "exchange" such lands with any tribe." The 1830 act served to ratify the Act of 1828, and "ratification is equivalent to original authority": "It is well settled that Congress may *** 'ratify *** acts which it might have authorized' *** and give the force of law to official action unauthorized when taken." Although the subsequent 1833 and 1835 treaties differed in some particulars from the authorization, the purpose was the same "to induce the Indians *** to emigrate and

20 175 U.S. at 12, emphasis added.

30 Id. 21.

31 See infra Appendix.

32 Erickson 97; Hansell 22.

33 Quoted by Hansell 5-6; 84 U.S. at 247.

34 The Passenger Cases, 48 U.S. (7 How.) 283, 470 (1849), dissenting opinion.

35 84 U.S. at 237, 238, 241.

36 Id. 245, 238-239.

37 Wilson v. Shaw, 204 U.S. 24, 32 (1907).

38 Swayne & Hoyt, Ltd. v. United States, 300 U.S. 297, 301–302 (1937).

settle in the country long before set apart for that purpose." " When, therefore, the Court, speaking to the contention that the President and the Senate "could not lawfully covenant that a patent should issue to convey lands which belonged to the United States without the consent of Congress," stated that "a treaty may convey to a grantee a good title to such lands without an act of Congress conferring it," it was making a statement that was unnecessary to the decision, because Congress had authorized the conveyance.

As to other treaties, Hansell tells us, "the precedents look two ways." Some have been "contingent upon congressional authorization." The "precedents supporting the power to dispose of property by treaty alone," he states, "can be found in the boundary treaties with neighboring powers, especially in the treaties between the United States and Great Britain of 1842 and 1846 for the location of our northeast and northwest boundaries. ***"40 Settlement of boundary disputes are not really cessions of United States property. The Oregon boundary dispute proceeded from an inflated claim: "Fifty-Four Forty or Fight"; the British, on the other hand, claimed land down to the forty second parallel. Only when the dispute was settled by treaty-at 49 degrees-could either party confidently assert that it had title." Consequently, as Samuel Crandall, a respected commentator, stated, "A treaty for the determination of a disputed line operates not as a treaty of cession, but of recognition."

Among other examples of alleged treaty transfers of property, Hansell instances the return to Japan of the Ryukyu Islands." By Article III of the 1951 Treaty of Peace with Japan, the United States received the right to exercise "all and any powers of administration, legislation and jurisdiction over the territory and inhabitants of those islands. ***" While Japan renounced, in Article II, “all right, title and claim" to various territories, it made no similar renunciation with respect to the Ryukyus." Quoting the Legal Advisor of the State Department, that "sovereignty over the Ryukyu Islands *** remains in Japan * * *”, a District Court stated that "Sovereignty over a territory may be transferred by an agreement of cession," but it concluded that there had been no cession.* The Fourth Circuit Court of Appeals quoted a statement by Ambassador John Foster Dulles, a delegate to the Japanese Peace Conference, that the aim was "to permit Japan to retain residual sovereignty," and held that the treaty did not make "the island a part of the United States, and it remains a foreign country for purposes of" the Federal Tort Claims Act."

"In the history of transfers of property to Panama," Hansell tells us, "we have had a mixed practice." " By the 1903 Panama Convention, Panama granted to the United States "all the rights, power and authority within the Zone... which the United States would possess if it were the sovereign of the territory . . . to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power, or authority . . ." " The words "if it were sovereign” signal an intent to stop short of a cession of sovereignty. That is confirmed by an Opinion of the Attorney General. Considering the Tariff Act levy of duties on articles imported "into the United States or into any of its possessions," he stated that "the Canal Zone is not one of the possessions of the United States within the meaning of that term as used by Congress in the tariff act, but rather is a place subject to the use, occupation, and control of the United States for a particular purpose." 39 49 In Luckenbach S.S. Co. v. United States, Chief Justice Taft stated, "Whether the grant in the treaty amounts to a complete cession of territory and domination to the United States or is so limited as to leave titular sovereignty in the Republic of Panama, is a question which has been the subject of diverging opinions," which he found it unnecessary to decide,50 and is therefore still open. Instead he relied on a "long continued course of legislation and administrative action [that] has operated to require that the ports in the Canal Zone are to be regarded as foreign ports within the meaning" of the Act governing the transport of "mail between the United States and any foreign port," " itself a hint that the Panama Treaty is no more a cession than the Japanese Treaty respecting the Ryukyus.

3984 U.S. at 240.

40 Hansell 6.

41 S. E. Morison, "Oxford History of the American People" 538, 546-547 (1965).

42 S. Crandall, "Treaties, Their Making and Enforcement” 226 (2d ed. 1916). 43 Hansell 6.

44 3 U.S.T. 3169, 3172, 3173.

United States v. Ushi Shiroma, 123 F. Supp. 145, 149, 148 (D. Hawaii, 1954).

46 Burna v. United States, 240 F. 2d 720, 721 (4th Cir. 1957).

47 Hansell 7.

It does not follow, however, that the interests of the United States do not constitute "property of the United States." The grant of "use and occupation . . . in perpetuity" constitutes "property" no less than the familiar lease of reality for 99 years. Then there are the installations that cost billions of dollars. Disposition of these no less requires the consent of Congress than does that of territory. In 1942, the President by Executive Agreement promised to transfer certain installations to Panama subject, however, to Congressional approval.52 A similar provision is to be found in the Treaty of 1955.53 These are executive constructions that speak against Messrs. Hansell and Erickson.

In sum, Messrs. Hansell and Erickson have failed to make out a case for "concurrent jurisdiction" with Congress in the disposition of United States property. If the President is to fly in the face of the express "power of Congress to dispose❞ it must be on a sounder basis than the arguments they have advanced. In my judgement, the Panama Treaty should contain a provision making it subject to approval of the Congress.

APPENDIX
I

Holden v. Joy: Its citations for treaty power to dispose of property.

A. "RESERVE" CASES (TITLE REMAINS IN INDIANS)

(1) United States v. Brooks, 51 U.S. (10 How.) 442 (1850). Indian cession to United States; supplement to treaty provided that Grappe's representatives "shall have their right to the said four leagues of land reserved to them ***” (450, 451). Held: treaty "gave to the Grappes a fee simple title to all the rights the [Indians] had in these lands***” (460).

(2) Doe v. Wilson, 64 U.S. (23 How.) 457 (1859). Indian treaty ceded land to United States, making reservations to individual Indians. "As to these, the Indian title remained as it stood before the treaty was made; and to complete the title to the reserved lands, the United States agreed that they would issue patents to the respective owners." (461-462).

(3) Crews v. Burcham, 66 U.S. (1 Black) 352 (1861). Cession by Indians with reserves (355). "The main and controlling questions involved in this case were before this court in the case of Doe v. Wilson, 23 How. 457 * * *” (356). (4) Mitchel v. United States, 34 U.S. (9 Pet.) 711 (1835). Prior to the Spanish cession of Florida to the United States, the Indians had made a cession to Spain, "reserving to themselves full right and property" in certain lands. (749). Held: "by the treaty with Spain the United States acquired no lands in Florida to which any person had lawfully obtained" title. (734, 756). Issue: title of purchaser from Indians to reserved lands.

(5) The Kansas Indians, 72 U.S. (5 Wall.) 737 (1866). Treaty exchange of lands; Indians reserved lands for each individual (739, 741). Issue: was such land taxable by Kansas.

B. IRRELEVANT CASES

(1) Meigs v. McClung, 13 U.S. (9 Cranch) 11 (1815). Held: land claimed from defendants did not lie within territory ceded to the United States by the Indians. (17).

(2) Wilson v. Wall, 73 U.S. (6 Wall.) 83 (1967). Treaty provided that certain Indians would be entitled to 640 acres for self, and additional acres, roughly speaking, for each child. (84). Issue: whether an Indian held land governed by the latter clause in trust for his children. (86). Court said "Congress has no constitutional power to settle the rights under treaties except in cases purely political," (89) the clause quoted in Holden v. Joy. The reason, it explained, was that "The Construction of them is the peculiar province of the judiciary ***” id. In other words, interpretations of treaties is for the courts.

(3) American Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511 (1828). Insurer brought a libel in the District Court, South Carolina, to obtain restitution of 356 bales of cotton carried by ship that was wrecked on the Florida coast. A Florida territorial court had earlier awarded 76% salvage to salvers, who sold the Canter. (540). Issue: did the territorial court have jurisdiction. No mention of grant by United States.

shall have been obtained therefore . . ."

53 "When the authority of the Congress Agreement of May 18, 1942, 59 Stat. (Pt. 2) 1289. 53 Agreement of January 25, 1955, 6 U.S.T. 2273, 2278.

(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 the 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," i.e. Congress. (314–315).

II

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 indictment.

(2) Asakura 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) Santovicenza 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).

III

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 individual 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."

ADDENDUM TO STATEMENT BY RAOUL BERGER BEFORE THE SUBCOMMITTEE ON SEPARATION OF POWERS OF THE COMMITTEE ON THE JUDICIARY, NOVEMBER 3, 1977 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 Attorney General seem to me to call for additional comment, and of these I shall speak in turn.

I

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.

II

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