welfare does not require that it sacrifice the legitimate interests of its citizens, such as innocent successors in title to allegedly ancient tribal land, to whom it also holds a sacred trust. Rather, the government's obligation to the Indians is only to assure that they are protected from the illegitimate intentions of those persons or sovereigns who would take wrongful advantage of them.

Moreover, the Lone Wolf court held that Congress' exercise of that responsibility is not subject to judicial review.

We must presume that Congress acted in perfect
good faith in the dealings with the Indians of
which complaint is made, and that the legislative
branch of the government exercised its best judg-
ment in the premises. In any event, as Congress
possessed full power in the matter, the judiciary
cannot question or inquire into the motives which
prompted the enactment of this legislation. If
injury was occasioned, which we do not wish to be
understood as implying, by the use made by Congress
of its power, relief must be sought by an appeal to
that body for redress and not to the courts.
legislation in question was constitutional, and the
demurrer to the bill was therefore rightly
sustained.

The

Id. at 568. The non-reviewability of Congress' plenary power over Indian affairs has been reaffirmed in recent cases. See, e.g., City of Sault Ste. Marie v. Andrus, 458 F.Supp. 465, 473 (D.D.C. 1978) ("Although [the trust] relationship may have abused the Indian nations as often as it has benefited them, the court

is not in the position of questioning this Congressional policy of stewardship.")

Congress has exercised its plenary power to uni

laterally alter the trust relationship in the interests of public policy on several occasions, the most dramatic of which were the enactments of the General Allotment Act of 1887 (now codified at 25 U.S.C. $331 et. seq.), and the termination legislation of the 1950's. See generally Wilkinson & Briggs, The Evolution of the Termination Policy, 5 Am. Indian L. Rev. 139 (1977). As Lone Wolf suggests, the validity of the terminations of reservations or tribal status effected by such legislation is tested by the court's inquiry not into what Congress should have done, but what Congress intended to do. See, e.g., Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977); DeCoteau v. District County Court,

6 The plenary power of Congress recently has been described as

follows:

[T]here is a key distinguishing factor present in the
Federal trust relationship with Indians which does not
occur in any other trust relationship: The trustee may
unilaterally terminate the trust relationship. The
ultimate trustee in Indian affairs is the United States
Congress and it can establish or redefine the existence
and scope of the Federal trust responsibility and even
unilaterally dissolve the relationship if it chooses.
This power stems for the plenary power of Congress in
· Indian affairs.

1 American Indian Policy Review Commission, Final Report 128 (May 17, 1977).

420 U.S. 425 (1975). Thus, Congress enjoys virtually free reign in regulating Indian affairs.

Of course, the United States' plenary power over the Indians has its limits. If, as Lone Wolf indicates, the trust relationship is anything Congress says it is, it can be no less than a commitment to assure that the Indians receive just compensation for any takings of vested property rights recognized by Congress. See, Shoshone Tribe of Indians v. United States, 299 U.S. 476 (1937); United States v. Creek Nation, 295 U.S. 103 (1935). Far from detracting from Congress' plenary authority over Indian property, however, this fifth amendment limitation on Congressional dealings with Indians serves as a reaffirmation that Congress is free to act as it sees fit in relation to Indian property so long as the Indians retain an avenue for seeking monetary compensation for any vested property rights that are affected.

Moreover, because the takings clause is triggered only by takings of vested rights, no monetary relief need be afforded the Indians for the taking of aboriginal title. See Tee-Bit-Ton Indians v. United States, 348 U.S. 272 (1955).

Recognized title,

that is, title to property granted the Indians according to treaties with the United States, is the only type of Indian land title compensable under the fifth amendment. Id. Thus, Congress

may, within its plenary power, abrogate Indian rights to aboriginal title without providing a monetary remedy, and such action would not violate its guardianship responsibilities. Similarly, Congress may ratify Indian sales of recognized title property without expressly granting a monetary remedy because of the Indians' already existing right of access to the United States Court of Claims, where they can assert their taking claims. 28 U.S.c. $1505. See Chambers, supra, 27 Stanford L. Rev., at 1235 n.103. It therefore is clear that Congress is empowered to enact legislation designed to resolve Nonintercourse statute claims by barring suits against states, municipalities and private persons and entities and substituting a damages remedy against the United States.7

III.

THE EXECUTIVE BRANCH MAY SUPPORT CONGRESS IN THE EXERCISE
OF ITS PLENARY POWER

The role of the executive in Indian affairs is defined

by Congress in the exercise of its plenary power. 1 American Indian Policy Review Commission, Final Report, 128-29 (May 17, 1977) ("Congress has designated a principal agent for carrying out the trust, i.e., the Department of the Interior"). The

7The constitutionality of legislation relieving innocent

landowners of the burden of defending Nonintercourse statute claims is discussed in detail in a memorandum prepared by the American Land Title Association in March 1978. A copy of that memorandum is attached as Exhibit A.

Where

United States' guardianship status is often established pursuant to treaties ratified by the Senate, or Congressional enactments such as the Nonintercourse statute. See, e.g., Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975). Once Congress has created a guardian-ward relationship, the representatives of the executive must adhere to Congressional guidelines in the execution of its duties. Congress has decided to recognize Indian title to land, for example, executive officials may not dispose of that land as public lands, for that would violate the Congressional directive. See Lane v. Pueblo of Santa Rosa, 249 U.S. 110 (1919). Similarly, where Congress has directed that Indian trust funds are to be managed by executive officers so as to bear a specific minimum rate of interest, the failure by those officers to secure that interest on the Indians' account may be a violation of the trust obligation. Manchester Band of Pomo Indians v. United States, 363 F.Supp. 1238 (N.D. Cal. 1973). Cases describing the executive "trusteeship" typically involve the handling of tribal funds. See, e.g., Seminole Nation v. United States, 316 U.S. 286 (1942).

8 In recent years, the Supreme Court has demonstrated a

willingness to limit the executive branch's "trust"

responsibilities to Indians. See United States v. Duncan, 446 U.S. 903 (1980), vacating and remanding Duncan v. United States, 597 F.2d 1337 (Ct. Cl. 1979), in light of United States v. Mitchell, 445 U.S. 535 (1980).