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tolls illegally collected from him for passage through the lock of a canal. By the time or final juagment, the state legislature had passed a statute purporting to retroactively validate the collection. Because the legislation involved only private rights and did not merely validate the original intent of the parties, the Court held the legislation unconstitutional. In Graham, the relevant statute retroactively extended the statute of limitations applicable to collection of income taxes. The statute was challenged by taxpayers who could have invoked the statutory bar to collection of taxes but for the retroactive extension of the statute. In upholding the statute, the Court summarized the constitutional limitations on retroactive legislation : "It is apparent, as the result of the decisions, that a distinction is made between a bare attempt of the legislature retroactively to create liabilities for transactions which, fully consummated in the past, are deemed to have no ground for legislative intervention, and the case of a curative statute aptly designed to remedy mistakes and defects in the administration of government where the remedy can be applied without injustice. Where the asserted vested right, not being linked to any substantial equity, arises from the mistake of officers purporting to administer the law in the name of the government, the legislature is not prevented from curing the defect in administration simply because the effect may be to destroy causes of action which could otherwise exist.Graham v. Goodcell, 282 U.S. supra at 429.

In the case of the proposed bill, the claims to be retroactively extinguished arise from a time-honored, positive federal policy, not from any mistake of a federal officer or oversight on the part of Congress. Moreover, the rights affected by the bill are substantial private property rights as between the tribes and the states (and their successors in interest), not matters of public interest such as collection of taxes. The Due Process Clause will not tolerate extinguishment of such rights by retroactive legislation. See Stephens v. Smith, 77 U.S. 321 (1870)." III. The bill bears no rational relation to Congress unique responsibility to

Indian tribes and thus violates the fifth amendment Article I, section 8 of the Constitution vests in Congress the exclusive authority to regulate commerce with the Indian tribes. McClanahan v. Arizona State Tar Commission, 411 U.S. 164, 172 (1973). The Indian Commerce Clause has been construed to grant Congress broad powers to legislate specifically for Indians, but its power in those respects is not limitless. As explained in recent Supreme Court decisions, the primary limitation on Congress' Indian Commerce Clause authority arises out of the Due Process Clause of the Fifth Amendment. Generally, “as long as the special treatment (of Indians) can be tied rationally to the fulfillment of Congress' unique obligation toward Indians, such legislative judgments will not be disturbed.” Morton v. Mancari, 417 U.S. 535, 595 (1974); Delaware Tribal Business Committee v. Wecks, 430 U.S. 73, 85 (1977)." See also

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11 Even were the tribal claims based on a mere technical violation of law, those claims that reach final judgment before enactment of the would not be affected. See McCul. lough v. Commonwealth of Virginia, 172 U.S. 102, 123-24 (1898) : “It is not within the power of a legislature to take away rights which have been once vested by a judgment. Legislation may act on subsequent proceedings, may aba te actions pending, but when those actions have passed into judgment the power of the legislature to disturb the rights created thereby ceases.

12 In Morton v. Mancari, the Court discussed constitutional restrictions on Indian legislation found in the Equal Protection component as well as the Due Process Clause of the Fifth Amendment (417 U.S. at 554-55), while in Delaware Tribal Business Committee v. Weeks, the Court relied exclusively on the Due Process Clause as restricting Congress' authority over Indian affairs (430 U.S. at 73). Read together, those opinions indicate that the Due Process Clause essentially defines the scope of Congress power under the Indian Commerce Clause. A particular exercise of that power, as with any other act of Congress, is subject to the affirmative limitations appearing elsewhere in the Constitution such as the Equal Protection Clause. See also L. Tribe, American Constitutional Law, Sec. 5–4. The text discussion focuses on the fact that the proposed bill-as openly hostile to Indian property rights-exceeds the scope of Congress authority over Indians.

But the bill may also violate the equal protection prohibition against racial discrimination even if it does fall within the scope of Congress' authority to manage Indian Affairs. The statute at issue in Morton v. Mancari, which extended an employment preference to members of federally recognized tribes, was challenged as racially discriminatory. The Supreme Court rejected that challenge, reasoning that the statute made a political, not a racial, classification. Morton v. Mancari, 417 U.S. supra at 553. In contrast, this bill may classify by race rather than political affiliation; the bills would apply to “any nation or tribe of Indians or any other body of Indians of the same or similar race, united in community under one leadership or government, and inhabiting a particular or sometimes ill-defined territory." In Mashpee v. New Seabury Corp., 592 F.2d 575, 582 (1st Cir. 1979). cert. denied 444 U.S. 866, the Court observed that that very definition was, because of its im. precision, "far from satisfactory' in determining tribal existence for purposes of the Non-Intercourse Act. It may encompass Indian groups with which the United States has no political relationship and certainly includes Indian groups which have had no political relationship and certainly includes Indian groups which have had no active relationship with the United States. Hence, the bill is subject to challenge as both beyond the scope of Congress' power over Indian commerce and as racially discriminatory.

13

United States v. Antelope, 430 U.S. 641, 644–6 (1977); Fisher v. District Court, 424 U.S. 382, 380 (1976). Unless Indian legislation is rationally related to Congress' trust responsibilities to Indian people and property, then the legislation is beyond Congress' power under the Indian Commerce Clause.

The present bill cannot be so justified. The "solution” to Indian land claims proposed by this legislation is openly destructive rather than protective of Indian property rights. The bill declares that the tribal claims are extinguished for the primary purpose of "remov[ing] the clouds on the titles to land located within the states of New York and South Carolina resulting from the claims of Indian tribes. ..." " Confirming non-Indian title to Indian land is not an act of guardianship, but an act of confiscation. See United States v. Creek Nation, 295 U.S. 103, 110 (1935); United States v. Alcea Band of Tillamooks, 329 U.S. 40, 47 (1946). The so-called compensation for the confiscation authorized in the bill confirms this conclusion. As noted above, the bill provides for compensation based on “ancient" values even though it extinguishes a present tribal title. Because of the monumental disparity between present and ancient land values, the bill cannot be justified as simply converting trust property from one form to another. See Fort Berthold Reservation v. United States, 390 F.2d 686, 695 (Ct. Cl. 1968); see also discussion below, Section IV. The conclusion is inescapable that the bill bears no rational relation to Congress' trust responsibility over tribal property and, therefore, exceeds Congressional authority under the Indian Commerce Clause." IV. The vill effects a taking of tribal property without just compensation in

violation of the fifth amendment It is firmly established that when Congress acts with respect to Indian property, it does so in one of two capacities. The Supreme Court's "Fort Berthold test" establishes that Congress acts either as a guardian for the benefit of the Indians, transmuting trust assets from one form to another (a traditional function of a trustee), or it exercises its power of eminent domain and takes Indian property, but it cannot act in both roles simultaneously.

The Fort Berthold test distinguishes between cases in which one or the other principle is applicable: “It is obvious that Congress cannot simultaneously (1) act as trustee for the benefit of the Indians, exercising its plenary powers over the Indians and their property, as it thinks is in their best interests, and (2) exercise its sovereign power of eminent domain, taking the Indian's property within the meaning of the Fifth Amendment to the Constitution. In any given situation in which Congress has acted with regard to Indian people, it must hare acted in either one capacity or the other. Congress can own two hats, but it cannot wear them both at the same time." United States v. Sioux Nation of Indians, 448 U.S. supra at 408. In the exercise of the eminent domain power, the limitations of the Fifth Amendment apply with full force to the Congressional action.

[C]ongress paramount power over Indian property "does not extend so far as to enable the Government to give the tribal land to others, or to appropriate them to its own purposes, without rendering, or assuming an obligation to render, just compensation.” Id., quoting Shoshone Tribe v. United States, 299 U.S. 476, 497 (1937).

Thus, if Congress is acting in its capacity as guardian for the benefit of the tribes of New York and South Carolina in enacting the Lee bill, then the source of its power is to retroactively ratify and compensate would be its plenary guardianship power over Indian property. On the other hand, if Congress is acting in the exercise of its eminent domain power, the limitations of the Fifth Amendment apply to the Congressional action.

In determining in which capacity Congress is acting, the Court will not presume Congressional “good faith" toward the Indians, but will engage in a

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13 A basic duty of a trustee is that of loyalty to the beneficiary, i.e., "the trustee is under a duty to the beneficiary to administer the trust solely in the interest of the beneficiary.” Restatement (Second) of Trusts, Sec. 170. It is patently antithetical to Congress' trust duties to transfer tribal property to third parties.

14 Because the Non-intercourse Act was enacted to implement Congress' trust responsibillities with respect to tribal property, the Act must be construed as subject to the same restrictions as the trust responsibility itself. See Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974). In addition, the Act has been construed as requiring tribal consent to third party acquisitions of Indian land. Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 119_(1960). Thus, even assuming Congress could, under the Act, confirm non-Indian title to Indian land, it could do so only where the original transaction was entered into voluntarily by the tribe. The bill makes no such distinction in ratifying the transactions between tribes and third parties.

“thoroughgoing and impartial examination of the historical record." United States v. Sioux Nation of Indians, U.S. 448 supra at 414–16. See St. Joseph Stock Yards Co. v. U.S., 298 U.S. 38, 51 (1935). (“Legislative declaration or finding

necessarily subject to independent judicial review upon the facts and the law ... "where deprivation of due process or uncompensated taking of property alleged.) Such an examination of the historical record of the New York and South Carolina transactions by which those tribes lost possession of their lands reveals fraud and overreaching on the part of the States. The transactions were patently unfair and were not concluded in furtherance of, or consistently with, any federal policy. Rather than benefitting from these illegal transactions, the tribes were left destitute, residing on a mere fraction of the lands they once possessed. See Oneida Indian Nation of New York v. County of Oneida, 434 F.Supp. supra at 535-36. Ratification of such transactions could hardly be charac. terized as the good faith action of a guardian, particularly where the facts and history of each case are not examined or considered by Congress.

An examination of the historical and legislative record of this legislation would further reveal that Congress made no effort whatsoever to substitute property of equal value for that which has been taken-a prerequisite to a finding that Congress is acting in its guardianship capacity. The retroactive ratification and compensation provisions of the bill extinguish valuable tribal claims and substitute in their place claims against the United States that are virtually worthless in comparison. It cannot be seriously argued that this is an act of guardianship for the benefit of the Indian. It is apparent that the retroactive ratification and compensation provisions are not an exercise of Congress' plenary powers over Indian property.

Clearly, the act does not provide for payment of full value. Although the property taken is a right to present possession of the land based on extant title, compensation is computed based on ancient land values—that is, values at the time of the initial unlawful land transfers. On its face, then, the proposed compensation bears no relation to the value of the property taken. United States v. Sioux Nation of Indians, 448 U.S. supra at 408-9.

Moreover, under the provision of Section 6, the tribes who have prosecuted claims and recovered damages against the United States before the Indian Claims Commission would lose their claims to possession of lands without receiving any compensation. For those tribes who have Indian Claims Commission judgments against the United States, the authorized compensation would be, in many instances, no more than the United States is already obligated to pay the tribe for is breach of trust with respect to the same land under the Indian Claims Commission Act, 25 U.S.C. Sec. 70 (1970). See United States v. Oneida of Nero York, 477 F.2d 939 (Ct. Cl. 1973), holding the United States liable for breach of fiduciary duty in failing to protect the Oneidas in their possession of the same lands that are the subject of the land claim suit in Oneida Indian Nation v. County of Oneida, 434 F.Supp. 527 (N.D.N.Y. 1977). Consequently, those tribes which have prosecuted claims against the United States for breach of fiduciary duty would receive no additional compensation for claims extinguished by this bill. Such “compensation” is inadequate as a matter of law. Siour Nation of Indians v. United States, 601 F.2d 1157, 1166 (Ct. Cl. 1979), aff'd 448 U.S. 371. Thus, the tribes affected by this act will not receive compensation even remotely approaching the full value of their claims. According to the Sioux Nation rationale, it must therefore be concluded that Congress, in enacting the bill, would be exercising its power of eminent domain rather than guardianship over Indian lands.

The bare language of the bill itself further supports this conclusion. Section eight provides that if either the retroactive ratification provision (Sec. 4) or the retroactive compensation provision (Sec. 6(c) (1)) is held invalid, the entire act is inapplicable to the tribe that prosecuted the challenge. In other words, the bill would extinguish the Indian claims unless a court determines that Congress may not lawfully provide compensation based on antiquated land values; in that case, the extinguishment will not take effect and the particular

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15 Some guideline must be established so that a court can identify in which capacity Congress is acting. The following guideline would best give recognition to the basic distinction between the two types of congressional action : Where Congress makes a good faith effort to give the Indians the full value of the land and thus merely transmutes the property from land to money, there is no taking. This is a mere substitution of assets or change of form and is a traditional function of a trustee." 182 Ct. Cl., at 553, 390 F.2d at 691.

tribe can pursue its claim against third parties. The only apparent purpose served by such a scheme is protection of the federal treasury-a factor that is relevant only to Congress' power of eminent domain, and is completely alien to the "fulfillment of Congress unique obligation toward the Indians,” Delaware Tribal Business Comm. v. Weeks, 430 U.S. supra at 85.

As an exercise of Congress' power of eminent domain the bills must provide for payment of “just compensation" to comply with the taking clause of the Fifth Amendment. For two reasons, this legislation falls far short of providing full value for the extinguished tribal claims.io

First, the compensation authorized by the bill for extinguishment of the tribes' title claims is determined by 'ancient' land values, i.e., values at the time of the original transaction, rather than present values. Yet the property taken is a present right to possession based on extant aboriginal or recognized title. On its face, then, the proposed compensation has no relation to the value of the property taken." See Fort Berthold Reservation v. United States, 390 F.2d 686, 695, cited with approval in United States v. Sioux Nation, 448 U.S. supra at 409, where the Court of Claims concluded that the substitute property must have very nearly the same value as the tribe's original property to satisfy Fifth Amendment requirements; see also Creek Nation v. United States, 302 U.S. 620, 622 (1938), where the Court held that the date of taking which determines the valuation date is, in turn, determined by the date title passes.

Second, the bill makes no pretense of compensating the tribes for interim damages claims (such as for trespass or mesne profits) that would be extin. guished."

However, a cause of action for damages is a vested property right protected by the Due Process clause of the Fifth Amendment. Gibbes v. Zimmerman, 290 U.S. 326 (1933); Coombs v. Getz, 285 U.S. 434, 442 (1932) ; Richmond Co. v. United States, 275 U.S. 331, 345 (1928); United States v. Standard Oil of California, 21 F.Supp. 645, 660, 661 (S.D. Cal. 1939), aff'd 107 F.2d 402 (9th Cir. 1940), cert. denied, 309 U.S. 654 (1941); Martinez v. Fox Valley Bus Lines, 17 F.Supp. 576, 577 (N.D. Ill. 1936). Because the bill purports to extinguish such claims without compensation and because section 4(c) expressly precludes any future action by the tribes based on those claims, the bill violates the Fifth Amendment with respect to tribal damages claims as well as title claims.20

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19 The cases cited in this section which discuss the requirement that just compensation be paid for a taking of Indian land involve recognized title. The Supreme Court has held that timber taken irom tribal lands held under aboriginal title is not compensable under the Fifth Amendment. Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1935). Whether the Tee Hit-Ton rule would be extended to an outright extinguishment of aboriginal title itself or survive careful scrutiny by the Supreme Court today is doubtful. See generally, N. Newton, At the Whim of the šovereign: Aboriginal Title Reconsidered, 31 Hastings L. J. 1215.

17 Just the Oneida claim alone, for example, was valued at roughly $9.2 billion in 1979.

18 It is axiomatic that, "[t]he value of property taken by a governmental body is ascer. tained as of the date of the taking." United States v. Clarke, 445 U.S. 253, 258 (1980). Quoting from United States v. Dow, 357 U.S. 17, 22 (1938), the Clark Court discussed what, in turn, constitutes taking by government: "The United States ... can enter into physical possession of property without authority of a court order; or it can institute condemnation proceedings " Id. at 256 n. 3. In the case of the tribal lands that are the subject of the bills, the United States has, up to this point, neither physically occupied the lands nor condemned them. The States of New York and South Carolina have, of course, physically dispossessed the Indians, but those state actions had no legal effect on the tribe's title (see Oneida Indian Nation v. County of Oneida, 434 Supp. 527 (N.D.N.Y. 1977), and are, therefore, irrelevant for purposes of determining whether or when the United States has taken the Indians' land. Were this legislation enacted, though, the United States would thereby authorize the physical dispossession of the Indians by the present non-Indian claimants and, as of that date, would have taken tribal land. "(I)t is that event which gives rise to the claim for compensation and fixes the date as of which the land is to be valued. ..." United States v. Dow, 357 U.S. supra at 22.

1* Since all transfers of Indian land which have not been approved by Congress in accordance with the Non-Intercourse Act are void, the occupany of that land over the years has constituted a trespass. See United States v. Southern Pacific Transportation Co., 543 F.2d 676 (9th Cir. 1976). Thus, all the Indian tribes affected by the bill have causes of action for trespass against the present and past occupiers of the land in addition to claims for recovery of the land.

50 Significantly. trespass claims arising before title is extinguished may be protected property rights regardless of whether the tribe's right to possession is based on aborginal or recognized title. Compare Edwardsen v. Moton, 369 F. Supp. 1359 (D.D.C. 1973), where the court held trespass claims arising out of aboriginal title to be compensable property rights, with United States v. Atlantic Richfield Co., 435 F.Supp. 1009 (D. Alaska 1977), af'd 612 F.2d 1132 (9th Cir. 1980), where the courts held that trespass claims based on aborginal title were not compensable property rights within the meaning of the Fifth Amendment.

V. The bill attempts to legislatively dictate rules of compensation and decision in

violation of the due process clause and the constitutional doctrine of seper

ration of powers In addition to taking property without just compensation, discussed above, the bill establishes a manuatory rule to be applied by the Court of Claims in computing compensation for the extinguished Indian claims. It is settled that legislatively decreed rules of compensation violates Due Process and the constitutional doctrine or separation of powers. Moreover, the bill also promulgates rules of decision to be applied by the federal courts, both in pending cases and in the new claims that would be heard in the Court of Claims. In this regard as well, the bill transgresses the separation of powers and deprive the tribes of their due process right to an indepenuent judicial determination of their constitutional claims.

A. Congress may not determine the measure of the rule of compensation in the exercise of its eminent domain power.-Determination of the amount of compensation to be paid for a taking or property is exclusively a judicial function. This principle has its foundation in the Due Process Clause and the doctrine of Separation of Powers, and is fundamental to our constitutional system. From the earliest days of the republic, the Supreme Court has recognized and implemented the principle that while Congress may make the political/legislative decision of when and where to exercise its power of minent domain, at same body ni. not turn around and act as judge in its own case to uetermine the amount it will pay for the property it has taken. See The Charles River Bridge v. The Warren Bridge, 36 U.S. (11 Pet.) 470, 511 (1837) (“Here, then, is a law which not only takes away the property of the complainants, but provides, to some extent, for their indemnity. . . . The law, in this respect, does not bind them; and they are entitled to an adequate compensation. ...").

In Monongahela Navigation Co. v. United States, 148 U.S. 312 (1893), the Court considered the propriety of a statutory directive by Congress that the courts not consider the franchise to collect tolls in computing the compensation to be paid for the condemnation by ('ongress of a lock and dam. In holding that the determination of the measure of compensation “is a judicial, not a legislative question," id. at 327, the Court stated : “(t)he legislature may determine what private property is needed for public purposes—that is a question of a political and legislative character; but when the taking has been ordered, then the question of compensation is judicial. It does not rest with the public taking the property through the Congress or its representative to say what compensation shall be paid, or even what shall be the rule of compensation. The Constitution has declared that just compensation shall be paid, and the ascertainment of that is a judicial inquiry.".

See United States v. New River Collieries, 262 U.S. 341, 343-44 (1923) (ascertainment of compensation is judicial function, and no power exists in any other department of the government to declare what the compensation shall be or to prescribe any binding rule in that regard"); Baltimore & Ohio Railroad Co. v. United States, 298 U.S. 349, 364 (1936) (“Congress has no power to make final determination of just compensation or to prescribe what constitutes due process of law for its ascertainment"); United States v. Sioux Nation of Indians, 448 U.S. supra at 417 n. 30 ("... determination of measure of just compensation ‘a judicial and not a legislative question'"); St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 51-52 (1935) (courts are not precluded from determining just compensation regardless of any legislative declarations or findings to the contrary).

The bill conflicts with these immutable principles of constitutional law. Secion 6(c)(1) limits the amount of compensation the Court of Claims may award a tribal claimant to the difference between the market value of the property at the time of the illegal transfer and the amount of consideration received by the tribe at that time. Because the bill provides that compensation must be computed in this fashion, it mandates an impermissible legislative rule of compensation and unconstitutionally intrudes on the judicial function.

21

21 In Pope v. United States, 323 U.S. 1 (1944), the Court held that in situations where the United States is creating a new legal claim in recognition of a moral obligation, Congress' nower to pay the nation's debts, U.S. CONST., art. I, sec. 8, includes the power to prescribe a rule of compensation. But here, of course, Congress is not dealing with an existing moral claim against the United States and, hence. Congress' Article I, section 8 powers do not come into play. Nor is the Congress, in this bill, merely confessing liability and directing the Court of Claims to compute the amount of that liability according to a specified rule or formula, as was the case in Pope. Finally, the Pope Court was not concerned with whether the legislation in issue there had the effect of violating Constitutional rights or precluding an independent judicial review of constitutional claims.

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