have been validated by the countless actions of the federal government for more than a century.

This

On the other hand, if an Indian tribe did not receive fair value for a transfer of its lands in centuries past, the policy underlying the Nonintercourse Act to ensure that Indian tribes receive fair value for their land transfers suggests that any approval of such ancient transfers should be accompanied by some mechanism or process by which an affected Indian tribe may now obtain such fair value. is precisely what sections 5 and 6 of the Ancient Indian Land Claims Settlement Act provide. As a consequence of these provisions and, in particular, the Court of Claims remedy provided by section 6, Congress would be ensuring that any Indian tribe whose transfer is approved by the Act either received fair compensation for the transfer or would have a means of obtaining a recovery for any shortfall in the compensation it might have received. 26/

26/ The consequences of the alternative positions on this Issue are, perhaps, best appreciated if the issue is presented in its starkest terms. Assume, for example, that (1) an Indian tribe sold several thousand acres of undeveloped land in 1795 for $1,000 less than the fair value of the tribe's interest in that land in 1795, (2) such transfer had never been formally approved by Congress (perhaps because neither Congress nor the Executive Branch believed the Nonintercourse Act to be applicable to the transfer), and (3) the land in question now constituted exceedingly valuable property in the heart of a major city. Although the Indian tribal claimant might argue that if Congress were now to approve that transfer the tribe should be compensated on

(footnote continued on next page)

An additional line of cases, not involving Indian land claims, also supports Congress' power to retroactively approve transactions the validity of which depends on such approval. Article I, section 10, of the Constitution provides that "No State shall, without the Consent of Congress,

into any Agreement or Compact with another State

enter

In Virginia v. Tennessee, 148 U.S. 504 (1893), the Supreme Court held that a boundary line between Virginia and Tennessee established in an agreement entered into by the two states some 90 years earlier was not invalid, even though Congress never formally consented to or approved the agreement as required by the Constitution. Holding that Congress had

approved the agreement by implication, the Supreme Court stated:

The approval by Congress of the compact
entered into between the states upon
their ratification of the action of
their commissioners is fairly implied
from its subsequent legislation and
proceedings. The line established was
treated by that body as the true bound-
ary between the states in the assignment
of territory north of it as a portion of
districts set apart for judicial and
revenue purposes in Virginia, and as
included in territory in which Federal

(footnote continued from previous page)

the basis of the current fair market value of the land, neither sound policy (Indian or otherwise) nor constitutional precedents require such a windfall in order to remedy the failure of the United States in 1795 to ensure that the tribe had obtained the additional $1,000 in compensation.

16-301 0- 83 63

elections were to be held, and for which
appointments were to be made by Federal
authority in that state, and in the
assignment of territory south of it as a
portion of districts set apart for judi-
cial and revenue purposes in Tennessee,
and as included in territory in which
Federal elections were to be held, and
for which Federal appointments were to
be made for that state. Such use of the
territory on different sides of the
boundary designated in a single instance
would not, perhaps, be considered as
absolute proof of the assent or approval
of Congress to the boundary line, but
the exercise of jurisdiction by Congress
over the country as a part of Tennessee
on one side, and as a part of Virginia
on the other, for a long succession of
years, without question or dispute from
any quarter, furnishes as conclusive
proof of assent to it by that body as
can usually be obtained from its most
formal proceedings. 27/

Accord Virginia v. West Virginia, 78 U.S. (11 Wall.) 39
(1871); Greene v. Biddle, 21 U.S. (8 Wheat.) 1 (1823) (Acts
of Congress admitting Kentucky and West Virginia into the
Union were held to constitute congressional approval of
prior agreements entered into by Kentucky and Virginia, and
by West Virginia and Virginia).

In sum, there is no basis for the assertion that congressional approval of prior Indian land transfers is constitutional only if there is a principal-agent relationship

between Congress and a participant to the transaction.

- 29

Relevant case law is clear that, to the extent the Nonintercourse Act requires congressional approval of Indian tribal land transfers, the failure of Congress to provide that approval at the time of the transfer can be corrected through legislation (whether denominated as "curative" or otherwise) enacted after the transaction has taken place.

B.

The bill does not exceed the "due process"
limitations on retroactive and curative
legislation.

Subpart B of part II of the Indian Counsel Memorandum adds little of substance to the arguments made in subpart A that Congress cannot approve prior transfers of Indian tribal lands that did not involve the participation of a federal officer or agent. Several of the statements and citations contained in this subpart (on pages 14-17 of the Indian Counsel Memorandum) do, however, deserve brief discussion. First, on page 14 the Memorandum states that "even if this bill could properly be characterized as retroactive ratification or curative legislation, it violates Due Process in that it overthrows settled tribal property rights by authorizing compensation based on 'ancient' values and revoking the long-standing protective policies embodied in the Non-Intercourse Act." No case citations are offered, however, to support the proposition that the bill would in any way violate the due process provisions of the fifth amendment of

30

the Constitution.

Moreover, in light of the fact that these

Nonintercourse Act claims have only begun to be addressed by

the courts in recent years

-

with most issues involved in

-

it is

the claims still unaddressed by the Supreme Court difficult to understand how these claims can be said to

involve "settled tribal property rights."

-

Indeed, the only

"settled" property rights that are at stake in these claims are those of the numerous counties, communities, and landOwners who have or whose predecessors in interest have owned, occupied, and developed the lands in question for well over a century.

The fact that the compensation provided under the Court of Claims proceedings authorized by section 6 of the bill is related to the value of the lands at the time they were transferred by the Indian tribes is logically and legally a function of one of the primary purposes of the Nonintercourse Act: to ensure that Indian tribes received fair value for the transfer of their lands. While it is true that this compensation would be based on the "ancient" value of the lands involved, as discussed on pages 25-27, above, providing compensation based on the present fair market value of the lands a value that has been determined

-

by the good faith efforts of generations of non-Indian land

-

owners in developing these lands - would be staggeringly

disproportionate to any harm suffered by the Indian tribes