Indian case and in light of past practice with respect to the Canal Zone.

So, we would like to have any additional information you could give to us in writing.

Mr. HANSELL. Certainly.

Senator ALLEN. So ordered.

[The Department of State subsequently responded as follows:]

As noted in the Legal Adviser's statement on July 29, the general rule is firmly settled that treaties may be concluded on any subjects appropriate for international negotiation. Geofroy v. Riggs, 133 U.S. 258 (1889). The treaty power does not extend to areas within the legislative authority of Congress that are expressly reserved by the Constitution to the exclusive jurisdiction of Congress. Thus, it is recognized that treaties may neither impose taxes nor directly appropriate funds. In addition, treaties must observe fundamental Constitutional norms including the protections of the Bill of Rights. See Reid v. Covert, 354 U.S. 1 (1957).

Senator ALLEN. We thank you very much. We appreciate your cooperation and patience. We feel that we understand pretty clearly the position of the State Department. We feel it will be up to the Congress to act accordingly.

Mr. HANSELL. Thank you, Mr. Chairman.

Senator ALLEN. I do have additional inquiries, and I will submit them to you in written form.

[The following inquiries and responses were submitted for the record:]

CHAIRMAN'S INQUIRY NO. 1

On pages 8 and 9 of your testimony, you present the proposition that power to dispose of federal territory and property by treaty is supported by transfers of land to Indian tribes. It is true that in our early history the United States dealt with the Indians by treaty. However, the principles of Indian land law are not only unique but also very complex. Treaties granted the Indians various types of interest in land. Some granted a fee simple interest; others granted or reserved only the right to the use and occupation of territories already possessed by the Indians (hence the use of the term "reservation").

Regardless of the nature of the grant to or acknowledgment of the rights of the Indian tribes, it is important to remember that the Indians were not regarded as sovereign independent nations but rather as 'wards of this nation' or in a state of pupilage' or 'dependent political communities'. Thus, the United States always retained the right to exercise the power of eminent domain in Indian lands. (Cherokee Nation v. Southern Kansas Railway Co., 135 U.S. 641, 653-654, 1890.)

The Republic of Panama is a sovereign nation, and certainly any transfer of lands to Panama would be more conclusive and final than any transfer of lands to Indian tribes. For this reason, Article IV, Section 3, clause 2 of the Constitution does seem to require a delegation of authority from Congress, because a disposal to Panama would, in fact, be a disposal in the fullest sense of that term. Please comment on this aspect of the issue.

DEPARTMENT OF STATE RESPONSE

Article 4, §3, cl. 2 does not differentiate between dispositions which leave the property disposed of subject to the power of eminent domain and dispositions which place the property disposed of outside the reach of the power of eminent domain. Hence the Property Clause does not limit the scope of the treaty power in the second case more than in the first. As the Supreme Court has recognized that the power to make treaties with the Indian tribes was co-extensive with that to make treaties with foreign nations, U.S. v. 43 Gallons of Whiskey, 93 U.S. 188, at 197, 23 L. Ed. 846 (1876, also reported sub. nom. U.S. v. Lariviere), the cases recognizing the validity of dispositions of land belonging to the United States by treaty with the Indian tribes lend judicial support to the concurrent nature of

the legislative power under Article 4, § 3, cl. 2 and the treaty power with respect to dispositions of property belonging to the United States.

CHAIRMAN'S COMMENT

We recognize that the United States dealt with the Indian tribes by treaty through most of the nineteenth century. However, that practice has been abandoned since the Indian Appropriations Act of 1872, and any conclusions drawn from Indian treaties are based on rather weak precedence.

In the last sentence of your response, you refer to cases recognizing the validity of the disposition of land and property by treaty. That statement is quite misleading, inasmuch as none of the cases that you have advanced in any way decide this issue or even comment on it, except possibly in dicta.

CHAIRMAN'S INQUIRY NO. 2

On page 10 of your statement, you discuss boundary treaties as supporting the principle that the executive may dispose of property by treaty alone. You provide several examples of such cessions and, as you know, there are other examples of resolution of American boundary problems by treaty. The Subcommittee does note, however, that in the examples you cite, the party with which we concluded the treaty did already claim full title to all property involved. For instance, in the settlement of the Oregon boundary problem in 1846, America was claiming land up to a parallel of 54° 40′ and the British were claiming territory down to the 42nd parallel. The eventual compromise solution settled on a boundary of 49°. As one noted historian has written, "On the basis of claims and possession, the English made the real sacrifice." (DeConde, A., History of American Foreign Policy, 1963, p. 174.) Once again, the cession of disputed territory in settling a boundary problem does not appear to be a proper precedent for cession of the Canal Zone and the property therein to the Republic of Panama. Although sovereignty in the Canal Zone may be disputed, the fact that the Canal Zone belongs to the United States is undisputed. (See Wilson v. Shaw, 204 U.S. 24, 27 S. Ct. 233, 1907.)

Please comment on the weight properly to be given treaties involving disputed boundaries.

DEPARTMENT OF STATE RESPONSE

Article 4, § 3, cl. 2 applies to all territory or property belonging to the United States whether or not claimed by others as belonging to them. As the clause applies to disputed boundary areas, Constitutional practice in respect of boundary settlements is, in our view, relevant to the general construction of the clause. Moreover, boundary treaties have ceded lands which were not disputed. For example, the 1970 boundary treaty with Mexico transferred land and improvements as a result of the relocation of the international boundary formed by the rectified channel of the Rio Grande. The treaty entered into force on April 18, 1972. Congress passed the American-Mexican Boundary Treaty Act of 1972 on October 25, 1972 "to facilitate compliance with the treaty," authorizing the Secretary of State, inter alia, to acquire all lands and interests in land required for transfer to Mexico as provided in the treaty.

CHAIRMAN'S COMMENT

In your response, you state that the Article IV power applies to all territory and property, whether or not disputed. That statement contradicts the writings of one of the foremost commentators on the treaty power. In his treatise, Treaties, Their Making and Enforcement (Washington, 2nd edition, 1916), Samuel Crandall wrote that "A treaty for the determination of a disputed line operates not as a treaty of cession, but of recognition." (See Treaties at p. 226.) As to the Mexican boundary precedent, it is important to note that Article I, paragraph D, of the treaty you cited does in fact provide for "necessary legislation" as a precedent to a carrying out of the terms of the treaty. Again, as you note, the American-Mexican Boundary Treaty Act of 1972 (P.L. 92-549) authorized the Secretary of State to acquire lands and interests in lands, necessary for the transfer to Mexico as provided in the treaty. By that statute, the Congress then did affirm and authorized the conditional transfer proposed initially by treaty.

CHAIRMAN'S INQUIRY NO. 3

In Sioux Tribe of Indians v. United States (315 U.S. 317, 1942), the Supreme Court addressed the issue of whether executive orders in 1875 and 1876 reserved a compensable interest in land to the Sioux Indian Tribe. The Court found "... that there was no express Constitutional or statutory authorization for the conveyance of a compensable interest ... and that no implied Congressional delegation of the power to do so can be spelled out from the evidence of Congressional and Executive understanding." (Siour at p. 331.)

Those executive orders were found to have reserved only use of the lands to the Sioux Tribe. The Court ruled that the interest retained by the Indians under the executive orders could be terminated by the Executive or Congress without any obligation on the part of the United States.

In the reasoning leading to its decision in that case, the Court noted that a treaty or statute could create a compensable interest in lands in the Indians if those lands were subsequently taken from them by the government. However, while the Court did note that a statute would obviously be an expression of Congressional will, the Court specifically did not on the other hand imply that a treaty could convey land without an express or implied Congressional delegation of authority or without enactment of subsequent legislation to give effect to any treaty terms proposing a disposition of U.S. property. In fact, the Court, to the contrary, stated as follows:

Since the Constitution places the authority to dispose of public lands exclusively in Congress, the Executive's power to convey interest in these lands must be traced to Congressional delegation of its authority. (Id., at p. 326)" (Emphasis added.)

If the lands reserved for the use of the Indians are reserved pursuant to a statute, it is obvious that Congress has given its consent to the disposal. When lands are transferred by treaty or executive order, the Court reasoned that delegation of Congressional authority must be found. The Court stated further that such delegation of authority may be explicit or may ". . . be spelled out from long-continued Congressional acquiescence in the executive practice." (Id.)

The importance of the Sioux Tribe case, as related to the disposal of property by treaty, lies in the fact that the Court seems to have stated rather clearly that lawful disposal by treaty or executive order could be effected only if the Court could find express or implied Congressional delegation of the exclusive authority of Congress to dispose of property or territory belonging to the United States. We have been unable to find any such express or implied delegation of power by the Congress insofar as relates to the disposal of land in the Canal Zone to Panama. The Panama Canal Act of 1912 only grants to the Executive Branch the authority to acquire or exchange land, not the power to dispose of it.

Moreover, Congressional acquiescence with respect to past practice in the Canal Zone has permitted the Executive only to make minor boundary adjustments without obtaining express Congressional authority. In any event, the boundary adjustments made have tended to be in the nature of an “exchange" as authorized by the Act of 1912.

The Subcommittee, I am sure, would appreciate your views on the desirability or necessity of making any proposed transfer of territory to Panama contingent on Congressional approval in view of the obvious absence of such Congressional delegation of authority regarding lands in the Canal Zone.

DEPARTMENT OF STATE RESPONSE

The case of Sioux Tribe of Indians v. United States, 316 U.S. 317 (1942), did not deal with the relation between the treaty power and the Congressional power under Article 4, § 3, cl. 2. The issue in that case was whether the President had the power to convey to Indian tribes a compensable interest in lands belonging to the United States by executive order. The Court expressly stated that the Indian tribes could acquire a compensable interest "by the terms of a treaty or statute ” The Court nowhere stated or implied that Congressional authorization or delegation would be necessary for a valid treaty, and the case cannot properly be cited for that proposition. It denied only the power of the President to pass title by executive order. despite dicta to that effect in prior cases cited in footnote 8 of the opinion. The statement that the executive's power must be traced to Congressional delegation refers to "executive order reservations," not to "treaty reservations."

CHAIRMAN'S COMMENT

We quite obviously differ in our reading of the Sioux Tribe decision, especially as regards the court's statement in Sioux Tribe that the power to dispose of public property is vested "exclusively" in Congress. But in any event, the fact does remain that when considering the Indian Appropriations Act of 1872, the House, the Senate, and the Executive clearly repudiated the treaty power as a vehicle for the conveyance of federal property and territory.

CHAIRMAN'S INQUIRY NO. 4

One might say that the essence of our disagreement in the proper approach to the interpretation of Article IV, Section 3, clause 2 of the Constitution is brought out in your comment on page 11 of your statement referring to the transfer of land and personal property to Japan in 1971. You state that the "transfers were made without implementing legislation apparently in reliance on the treaty or general statutory authority to dispose of foreign excess property." We also believe that those transfers were made on the basis of reliance on prior Congressional consent, specifically the Foreign Excess Property Disposal Act of 1947 and related statutes. However, in the case of the Panama Canal Zone, the House has tenaciously asserted its authority over the disposal of territory or property. The Senate too, in 1942, recognized that the House of Representatives had a role to play in any disposal of such territory or property. (See 88 Cong. Rec. 9267). A representative of the State Department told the Senate Foreign Relations Committee that transfer of all of the property ceded in the 1955 treaty with Panama required implementing legislation before the transfer could be effective. (Hearings on the Panama Canal before the Senate Committee on Foreign Relations, Exec. F., 84th Cong., 1st Sess., pp. 60-61.)

Transfers of property to Panama in the past have therefore relied on express or implied delegation of authority from Congress (just as the Ryukyu and Daito Islands transfer relied on general legislative or prior treaty authority). By not obtaining House consent for this transfer in the face of House insistence on its right to give such consent, the Department of State is, at the very least, putting the Executive's relationship with Congress in jeopardy. The House has been acknowledged to have a Constitutional role in the transfer of minor cessions of territory. Now that a major cession of property in the Panama Canal Zone is contemplated, the Executive appears to be attempting to ignore past practice by denying to the House of Representatives a role that has been established by past precedent. Moreover, evidence submitted to the Subcommittee thus far does indicate that the Executive Branch may well be assuming powers in excess of those permitted to it by the Constitution.

Please comment.

DEPARTMENT OF STATE RESPONSE

The Department of State has not yet been able to establish the extent to which the Executive Branch may have relied on the Foreign Excess Property Disposal Act of 1947, or other statutes, to implement the 1971 Ryukyu and Swan Island Treaties. However, it should be noted that both these treaties transferred certain lands or improvements directly upon entry into force.

We are not able to agree that a State Department representative told the Foreign Relations Committee that transfer of all of the property ceded in the 1955 treaty with Panama required implementing legislation before the transfer could be effective; the memorandum submitted by Assistant Secretary Holland is ambiguous on this point. Section 102.b of Public Law 85–233 recognizes that at least one parcel of property was transferred by operation of the Treaty.

CHAIRMAN'S COMMENT

We find nothing ambiguous in Assistant Secretary Holland's memorandum to the Senate Committee on Foreign Relations. The entire 1955 memorandum and pertinent dialogue reads as follows:

"IMPLEMENTING LEGISLATION

Senator MORSE. 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. Yes, we can, Senator.

Senator MORSE. 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. That might conceivably have a bearing upon the Senate giving its advice and consent.

Mr. HOLLAND. We intend to submit such legislation to you, Senator.
Senator MORSE. Thank you very much.

[The information referred to follows:]

LEGISLATION REQUIRED TO IMPLEMENT PROPOSED NEW AGREEMENTS WITH

ΡΑΝΑΜΑ

Legislation will be required to implement the following provisions of the treaty and memorandum of understandings reached :

(a) Article I

Increase in the annuity.-The Department of State will request authorization and provision for the increased amount of annuity in its supplementary appropriation bill for the current year. Thereafter provision for the increased amount will be included automatically in the Department's appropriation requests. If it is the will of the Congress that the money for the increased payment be reimbursed annually to the Treasury by the Panama Canal Company, presumably section 246(e) of the Panama Canal Company charter would have to be appropriately amended.

(b) Articles V, VI, and VII of the treaty and item 2 of the memorandum. Transfer of certain lands and improvements to Panama.-Authorizing legislation is required. Necessary replacements would require appropriations. (c) Item 1 of the United States undertakings in the memorandum of understandings reached

Treatment of Panamanian labor in the Canal Zone.-Authorizing legislation is required for the exclusion of certain Canal Zone agencies from the Classification Act in order to fully implement the agreement regarding the establishment of a basic wage for given grade levels in Canal Zone employment and for the uniform application of the Civil Service Retirement Act to citizens of both countries employed in the Zone.

(d) Item 5 of the United States undertakings in the memorandum of understandings reached

Bridge across the canal at Balboa.-Legislative authorization and appropriation will be necessary. It should be noted, however, that while mentioned in the memorandum, this commitment on the part of the United States was originally undertaken in the 1942 general relations agreement."

I must say that your concept of ambiguity differs greatly from mine. Senator ALLEN. Senator Hayakawa, we are delighted to have you come before the committee to give us the benefit of your views and expertise in this field. We are delighted to hear from you.

I suggest you proceed in such fashion as you desire.

TESTIMONY OF HON. S. I. HAYAKAWA, A U.S. SENATOR FROM THE STATE OF CALIFORNIA

Senator HAYAKAWA. Thank you, Mr. Chairman.

I appreciate very much this opportunity to present my views on the Panama Canal issue. The Subcommittee on the Separation of Powers ought to be commended for having arranged these hearings. The question of the future of the Panama Canal is of fundamental importance for our country and a broad public debate seems essential for keeping the American people duly informed. The hearings which provide knowledgeable experts with an opportunity to speak up in public are an invaluable contribution to a national debate.

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