And in Tee-Hit-Ton Indians v. United States 348 U.S. 272, 288-289 (1955), the court noted that,

"The line of cases adjudicating Indian rights on American soil leads to the conclusion that Indian occupancy, not specifically recognized as ownership by action authorized by Congress, may be extinguished by the Government without compensation."

Thus, the title interest conveyed to the Indian tribes by treaty was something less than a complete unalienable fee simple. The United States Government retained certain rights to the land, including the right to regulate to whom the land could be transferred, and the right to utilize the land for public purposes. The American College Dictionary defines "dispose of" as "a. to deal with definitely; to get rid of. b. to make over or part with, as by gift or sale." A disposal of the property in the Canal Zone to a sovereign nation such as Panama would, indeed, effectively dispose of federal property. A treaty returning the Canal Zone to Panama would limit United States control in that area to a far greater degree than did the transfer of a land interest in this country to the American Indian. In view of the nature of Indian land law, it is possible to argue that those treaties never effectively disposed of property in the sense contemplated by Article IV, Section 3, clause 2 of the Constitution.

Even if those treaties are considered to have disposed of federal property in Article IV terms, the treaties should not be considered valid authority for disposal of the Canal Zone to Panama by treaty. The basis for this treaty is found in a series of cases in which the court has concluded that the Congress did, indeed, consent to the transfer of title by treaty.

C. The implied exercise of article IV prerogatives

Sioux Tribe of Indians v. United States 316 U.S. 317 (1942) involved the following situation. By the Fort Laramie Treaty of 1868, the Sioux were granted certain lands in what is now South Dakota and Nebraska. Several Executive Orders issued in 1875 and 1876 withdrew tracts of public land bordering the Reservation from the public domain and set them apart for the use of the Sioux Tribe in addition to those lands specified in the treaty. The lands were withdrawn from the public domain because they were being used by persons who were selling whiskey to the Sioux. When the "whiskey-runners" were no longer a disruptive factor, the President issued Executive orders returning those parcels of land to the public domain. The Sioux contended that the Executive orders of 1875 and 1876 conveyed to their tribe the same type of interest conveyed by the Fort Laramie Treaty of 1868. They further alleged that the restoration of those lands to the public domain entitled them to compensation for their fair value of lands taken.

The government answered that the Executive lacked the power to create a compensable interest in lands set aside by executive order. The court decided that the President could not create such an interest without the consent of Congress. It state that:

"Section 3 of Article IV of the Constitution confers upon Congress exclusively 'the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.' Nevertheless, 'from an early period in the history of the government it has been the practice of the President to order, from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public use.' Grisar v. McDowell, 6 Wall. 363, 381. As long ago as 1830, Congress revealed its awareness of this practice and acquiesced in it. By 1855 the President had begun to withdraw public lands from sale by executive order for the specific purpose of establishing Indian reservations.5 From that date until 1919, hundreds of reservations for Indian occupancy and for other purposes were created by executive order. Department of the Interior, Executive Orders Relating to Indian Reservations, passim; United States v. Midwest Oil Co., 236 U.S. 459, 469-470. Although the validity of these orders was occasionally questioned, doubts were quieted in United States v. Midwest Oil Co., supra. In that case, it was squarely held that, even in the absence of express statutory authorization, it lay within the power of the President to withdraw lands from the public domain. Cf. Mason v. United States, 260 U.S. 545." Sioux at 324-325.

and concluded:

"***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. Shoshone Tribe v. United States, 299 U.S. 476; United States v. Shoshone Tribe, 304 U.S. 111 United States v. Klamath Indians, 304 U.S. 119. 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 acquiesence 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." [Id. at 326 citations omitted.]

By the Act of February 11, 1897, 29 Stat. 526, c. 216, Congress had declared public lands containing minerals open for sale. In 1909 the President, by Proclamation, withdrew certain lands containing petroleum from sale: government owned oil lands were being purchased at such a rapid rate, it had become apparent that the United States would soon be reduced to purchasing oil at high rates from private sources. United States v. Midwest Oil 236 U.S. 459 (1915) sustained the power of the Executive to withdraw lands from the public domain without statutory authority. The decision enumerated instances prior to 1910 in which the President had issued orders withdrawing land from private acquisition, including 99 Orders establishing or enlarging Indian Reservations. The court then discussed the history of Presidential actions in making reservations and withdrawals of public lands without the express consent of Congress, and cited numerous Opinions of the Attorney General sustaining the President's power.

"2. It may be argued that while these facts and rulings prove a usage they do not establish its validity. But government is a practical affair intended for practical men. Both officers, law-makers and citizens naturally adjust themselves to any long-continued action of the Executive Department-on the presumption that unauthorized acts would not have been allowed to be so often repeated as to crystallize into a regular practice. That presumption is not reasoning in a circle but the basis of a wise and quieting rule that in determining the meaning of a statute or the existence of a power, weight shall be given to the usage itself— even when the validity of the practice is the subject of investigation." [Midwest at 472-473]

The court cited several decisions that:

“*** clearly indicate that the long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the withdrawals had been made in pursuance of its consent or of a recognized administrative power of the Executive in the management of the public lands. This is particularly true in view of the fact that the land is property of the United States and that the land laws are not of a legislative character in the highest sense of the term (Art. 4, § 3) "but savor somewhat of mere rules prescribed by an owner of property for its disposal." Butte City Water Co. v. Baker, 196 U.S. 126.

These rules or laws for the disposal of public land are necessarily general in their nature. Emergencies may occur, or conditions may so change as to require that the agent in charge should, in the public interest, withhold the land from sale; and while no such express authority has been granted, there is nothing in the nature of the power exercised which prevents Congress from granting it by implication just as could be done by any other owner of property under similar conditions. The power of the Executive, as agent in charge, to retain that property from sale need not necessarily be expressed in writing. Lockhart v. Johnson, 181 U.S. 520; Bronson v. Chappell, 12 Wall. 686; Campbell v. City of Kenosha, 5 Wall. 194 (2).

"For it must be borne in mind that Congress not only has a legislative power over the public domain, but it also exercises the powers of the proprietor therein. Congress 'may deal with such lands precisely as a private individual may deal with his farming property. It may sell or withhold them from sale.' Camfield v. United States, 167 U.S. 524; Light v. United States, 220 U.S. 536. Like any other owner it may provide when, how and to whom its land can be sold. It can permit it to be withdrawn from sale. Like any other owner, it can waive its strict rights, as it did when the valuable privilege of grazing cattle on this public land was held

to be based upon an 'implied license growing out of the custom of nearly a hundred years.' Buford v. IIoutz, 133 U.S. 326. So too, in the early days the 'Government, by its silent acquiescence, assented to the general occupation of the public lands for mining.' Atchison v. Peierson, 20 Wall. 512. If private persons could acquire à privilege in public land by virtue of an implied congressional consent, then for a much stronger reason, an implied grant of power to preserve the public interest would arise out of like congressional acquiescence.

"The Executive, as agent, was in charge of the public domain; by a multitude of orders extending over a long period of time and affecting vast bodies of land, in many States and Territories, he withdrew large areas in the public interest. These orders were known to Congress, as principal, and in not a single instance was the act of the agent disapproved. Its acquiescence all the more readily operated as an implied grant of power in view of the fact that its exercise was not only useful to the public but did not interfere with any vested right of the citizen." [Id. at 474-475]

It is submitted that the continued acquiescence of Congress to the conclusion of agreements with the Indian by treaty, and the continual grants of appropriations by the Congress to carry out the terms of the treaties, constituted an implied delegation of its Article IV powers. The House of Representatives, then, had, by acquiescence ratified the Indian treaties. As will be shown infra, no such acquiescence has ever been exhibited as regards the disposition of U.S. property in the Canal Zone. In fact, the House has been outspoken in its demand for a voice in such matters, and the Senate has continually supported the House in that regard.

D. Disavowal of the Indian treatymaking process by Congress

Finally, even if it could be maintained that the treaties between the Indian tribes and the United States involved a disposal of property without the consent of the House of Representatives, the practice of concluding such agreements by treaty has been non-existent for more than a century.

In the period immediately following the Civil War, westward migration of Americans increased and the importance of peace treaties with the Indians was likewise heightened. However, Congress felt that exercise of its constitutional duties were being bypassed as a result of the treaty system. On March 29, 1867 Congress passed the following law.

"And all laws allowing the President, the Secretary of the Interior, or the commissioner of Indian affairs to enter into treaties with any Indian tribes are hereby repealed, and no expense shall hereafter be incurred in negotiating a treaty with any Indian tribe until an appropriation authorizing such expense shall be first made by law." [15 Stat. 7, 9, c. 13, 40th Cong., 1st Sess.]

On July 20, 1867 the President was authorized to appoint commissioners to conclude peace treaties with hostile indians (the treaties would be subject to Sen ́ate action). 15 Stat. 17; c. 32, 40th Cong., 1st Sess. The Commission concluded the treaties and they were ratified by the Senate-but the House found the treaties unacceptable for a variety of reasons. Squabbles arose in the House as to whether that body would approve the appropriations necessary for fulfilling the terms of the treaties. The House eventually did pass appropriation bills, but withheld its approval from treaties already proclaimed. These sentiments had no legal affect but were indicative of the displeasure of the House.

"Sec. 5. And be it further enacted, That nothing in this act contained, or in any of the provisions thereof, shall be so construed as to ratify or approve any treaty made with any tribes, bands or parties of Indians since the twentieth day of July, eighteen hundred and sixty-seven. [16 Stat. 18, 40, c. 16, April 10, 1869.] The practice of concluding agreements with Indians by treaty ended with enactment of the Indian Appropriation Act of 1872, 16 Stat. 544, 566, c. 120, 41st Congress, 3rd Sess., March 3, 1871. Inserted in an appropriation for the Yankton Tribe of Sioux, the law stated:

"For insurance and transportation of goods for the Yanktons, one thousand five hundred dollars: Provided, That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: Provided, further, That nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe."

The law also included the following provision:

"Sec. 14. And be it further enacted, That nothing in this act contained, or in any of the provisions thereof, shall be so construed as to ratify, approve, or disaffirm any treaty made with any tribes, bands, or parties of Indians since the twentieth of July, eighteen hundred and sixty-seven, or affirm or disaffirm any of the powers of the Executive and Senate over the subject."

The debate surrounding passage of the provision ending the treaty practice was intense.

"Mr. SHANKS. Mr. Chairman, having heard the statement of the gentleman from Oregon, [Mr. SMITH,] I am not willing to let this matter pass without putting in my denial on this floor of the position which the gentleman has taken. I do not believe, sir-and I announce here my firm conviction of what I say—I do not believe that the treaty-making power of this Government can part with one foot of the soil of this country without the sanction of Congress. I am not willing that the broad statement which he has made upon this floor shall pass without putting in my protest against the declaration of the right of the treaty-making power to sell the soil of this country.

"Mr. MAYNARD. I would like to ask the gentleman one question. Suppose we were involved in a war with another nation, and we found ourselves constrained by the necessities of the war to make a treaty upon the principle of uti possidetis, a treaty ratified by the President and the Senate; does he suppose that that would require further action to make it valid?

Mr. SHANKS. If this country was at war and it became necessary to part with any public domain, Congress is just as competent to pass upon that question as is the treaty-making power; and by the Constitution it is declared that the territory of this Government shall be at the disposal of Congress; and there is no clause declaring that the treaty-making power may dispose of one particle of the property or one acre of the territory of this Government. The language used in relation to the disposition of territory in the Constitution is the same as that used in relation to the power of Congress to control all other matters that fall especially within its jurisdiction. The words are that the "Congress shall have power," etc. I protest against this doctrine in the interest of the settlers on the public lands of this country, who are today being robbed of their homes and driven from them, because the treaty-making power has assumed the power to sell the soil of the Government to companies and corporations at the will of a portion of the Government, denying to the people of the country the right to manage their own affairs and the benefit of their own national possessions." [97 Cong. Globe 764, 41st Cong., 3rd Sess. January 26, 1871]

"Mr. SARGENT. I do not wish to prolong this debate beyond reasonable bounds. But I wish to call the attention of the committee to the opinion of the Attorney General, published in December last, upon the question of the right of the Secretary of the Treasury to issue $250,000 in bonds to the Choctaw Indians, in pursuance of a so-called treaty, ratified by the Senate; the question being, in that case, whether the money named could be drawn from the Treasury of the United States without the leave of Congress. In the discussion of the matter, he says: "In Foster and Elam vs. Neilson, (2 Peters, p. 2) The Supreme Court says: "Our Constitution declares a treaty to be a law of the land. It is consequently, to be regarded in courts of justice as equivalent to an act of the Legislature, whenever it operates of itself without the aid of any Legislative provision"

"It is simply equivalent to an act of legislation whenever it operates of itself, without the aid of legislation, and certainly not otherwise-

"‘and in applying this principle to the case before them, say that if the treaty then under consideration had acted directly upon the subject it 'would have repeated those acts of Congress which were repugnant to it.'

"In Taylor vs. Morton, (2 Curtis, C.C.R., p. 454.) it was held that Congress may repeal a treaty so far as it is a municipal law, provided its subject-matter is within the legislative power of Congress.'

"And now is it not within the legislative power of Congress to take money from the national Treasury? Is it not within the legislative power of Congress, under the Constitution, to determine whether our domain shall be ceded to foreign nations or not? If, as the able gentleman from Wisconsin [Mr. PAINE] argued last year, when this question was up, it be conceded that money may be taken from the Treasury, when the guardianship of the public money is placed in the hands of Congress by the Constitution, and that our domain may be given up to roving bands of Indians in large areas for all time to come, under the treaty-making power as it is called, and without the consent of Congress, then, by the treaty

making power they may repeal our laws regulating naturalization; they may regulate the issue of United States bonds; give away our right to regulate commerce between the States, disarm our soldiers, abolish our Navy, bind us to declare war; they may, in short, invade every province which, by the Constitution of the United States, is placed within the jurisdiction of Congress. For there are no provisions more clear in the Constitution than those which provide that Congress shall appropriate the public money in order that it may be legitimately expended, and that it may deal with all these questions which affect the occupancy of the public domain.

"What I contend is that this amendment, offered by the gentleman from Ohio, [Mr. LAWRENCE,] is strictly constitutional. In other words, if it is a treaty which stands in the way, then by this decision, reported by Judge Curtis and cited by the Attorney General, we can repeal that treaty. But we merely say that we do not consent that such treaties can be made. That is one effect of it. Congress may repeal any treaty, and its law is as supreme as the treaty before the repealing statute was passed. If thereby we offend any foreign nation, or disturb its rights, we take the consequences, which may even be war. But our right cannot be contested. How much more may we refuse to execute a treaty, if treaty there be, where it assumes to deal with matters reserved to Congress by the Constitution? [Here the hammer fell.]

"The question was taken upon the amendment offered by Mr. SMITH, of Oregon, to strike out the words "so called" before the word "treaties;" and it was not agreed to.

The question recurred upon Mr. LAWRENCE'S amendment.

"Mr. POTTER. I move to strike out the last word, in order that I may say, that upon the question which has been discussed I entirely agree, as to one point, with my friend from Oregon, [Mr. SMITH.] The Constitution, as he says, gives to the President of the United States power, with the advice and consent of two thirds of the Senate, to make treaties, and the treaties so made are part of the law of the land. But beyond that there seems to me to remain a question as to whether the agreements made with these roving bands are the treaties for which the Constitution provides; and as to this I do not agree with my friend from Oregon. It must be clear that when the Constitution spoke of treaties to be made by the President, with the advice and consent of two thirds of the Senate, it meant treaties with foreign nations, not with individuals, nor firms, nor partnerships. A treaty made by the President, with the advice and consent of two thirds of the Senate, with you, Mr. Chairman, or with me, would not be a part of the law of the land, nor of binding and constitutional authority.

"Mr. MAYNARD. I would inquire of the gentleman whether a "treaty" could be made with him or with me; whether a treaty does not mean an agreement with a foreign nation?

"Mr. POTTER. The Constitution itself does not define the meaning of the word treaty; but if an agreement between nations be the meaning of treaty, which I do not dispute, then the question must always recur whether the agreement which is brought to us as the ground of an appropriation be a treaty, that is to say an agreement with a nation which, according to the understanding of the gentleman from Tennessee, is that which alone can be a treaty.

"Mr. MAYNARD. What is a foreign nation? Are not these Indian tribes foreign nations as to this country, that is to say not subject to our jurisdiction?

"Mr. POTTER. That brings up this other question; who is to judge ultimately whether this roving band is such a foreign nation as that an agreement with it shall be regarded as a treaty. Are the Senate to be the ultimate judges of that question or is Congress to be the ultimate judge of it? It is to prevent the preclusion on the part of this House of that ultimate question that the gentleman from Massachusetts desired to insert the words "so-called."

Mr. WILSON, of Minnesota. Is not the Supreme Court the proper tribunal to decide upon the authority of the Indian tribes to make treaties; and have they not so decided in an uninterrupted course of decision?

Mr. POTTER. I answer that I do understand the Supreme Court have held that the Indian tribes were to be treated as the subject of treaties; but I do not understand that their decision ever reached such a case as the case referred to in the debate this morning, of a treaty with thirty-seven roving Indians in Oregon. The question, therefore, remains whether thirty-seven savages be, or be not, such a body as has sufficient nationality to justify treaty-making with it. By whom, then, shall that question be determined? By the Senate absolutely or by Congress?