Beginning at an unmarked point called "E", located . . ..
Thence from said initial point by metes and bounds:

Due East, 2662.83 feet . .

Article VIII of the General Treaty signed March 2, 1936, as amended by Article III of the Convention between the United States of America and the Republic of Panama regarding the Colón Corridor and certain other corridors through the Canal Zone, signed May 24, 1950, is hereby modified by removing from the Colón, or westerly, end of the Colón Corridor the portion thereof lying north of North latitude 9°21′ and incorporating such portion within the boundary of the City of Colón as described above.

This Article shall become effective upon completion of the withdrawal by the United States of America from the sections of the city of Colón known as New Cristobal Colón Beach and the de Lesseps Area, with the exception of the lots retained for consulate purposes, except that it shall in no case become effective prior to the exchange of the instruments of ratification of this Treaty and the exchange of instruments of ratification of the Convention signed May 24, 1950, referred to in the preceding paragraph.

Article VII

The second paragraph of Article VII of the Boundary Convention signed September 2, 1914, between the United States of America and the Republic of Panama, shall be abrogated in its entirety as of the date of entry into force of the present Treaty.

The landing pier situated in the small cove on the southerly side of Manzanillo Island, constructed pursuant to provisions contained in the second paragraph of Article VII of the Boundary Convention of 1914 between the two countries, shall become the property of the Government of the Republic of Panama as of the date of entry into force of the present Treaty.

The Boundary Convention between the United States and Panama, which was signed on Sept. 2, 1914, entered into force Feb. 11, 1915 (TS 610; 38 Stat. 1893; 10 Bevans 702). The General Treaty of Friendship and Cooperation, accompanied by sixteen exchanges of notes embodying interpretations of the Treaty or Arrangements pursuant thereto, which was signed at Washington on Mar. 2, 1936, entered into force July 27, 1939 (TS 945; 53 Stat. 1807; 10 Bevans 742). The Convention regarding the Colón Corridor and certain other corridors through the Canal Zone between the United States and Panama, which was signed on May 24, 1950, entered into force on Apr. 11, 1955 (TIAS 3180; 6 UST 461; 241 UNTS 139).

Portions of the text to which footnote 8 of Sioux Tribe of Indians v. United States is appended as well as the text of footnote 8 appear below:

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 acquiescence 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."

This question is an open one. It is true that language appearing in two decisions of this Court suggests that the tribal title to a reservation is the

same whether the reservation has been created by statute or treaty or by Executive order. Re Wilson, 140 U.S. 575, 577; Spalding v. Chandler, 160 U.S. 394, 403. Cf. C. N. Cotton, 12 L.D. 205 (1890); William F. Tucker et al., 13 L.D. 628 (1891). In Re Wilson, however, it was conceded by all concerned that an Executive order reservation was "Indian country" within the meaning of that term as it appeared in certain statutes defining the criminal jurisdiction of United States courts and territorial courts. No question was raised by the case with respect to the character of the tribe's interest in the reservation. Moreover, the dictum referred to was based upon the assumption that the Allotment Act of 1887 (24 Stat. 388) amounted to a congressional recognition of tribal title to Executive order reservations. The invalidity of this assumption is demonstrated in a later portion of our opinion. The issue in Spalding v. Chandler concerned the effect of the Pre-emption Act of September 4, 1841 (5 Stat. 453), upon an Indian reservation created by treaty and preserved by Executive order and did not involve a determination of whether the Indians enjoyed a compensable interest in an Executive order reservation. And twenty-eight years thereafter when the Attorney General ruled, on the authority of United States v. Midwest Oil Co. [236 U.S. 459 (1915)], that Executive order reservations were not a part of the public domain for purposes of the General Leasing Act of 1920 (41 Stat. 437), he took occasion to remark: "Whether the President might legally abolish, in whole or in part, Indian reservations once created by him, has been seriously questioned (12 L.D. 205; 13 L.D. 628) and not without strong reasons; for the Indian rights attach when the lands are thus set aside; and moreover, the lands then at once become subject to allotment under the General Allotment Act. Nevertheless, the President has in fact, and in a number of instances, changed the boundaries of Executive order Indian reservations by excluding lands therefrom, and the question of his authority to do so has not apparently come before the courts." 34 Op. A.G. 171, 176 (emphasis added).

316 U.S. at 326-327.

On September 15, 1977, Senator William Lloyd Scott received unanimous consent to publish in the Congressional Record a legal memorandum of the Congressional Research Service of the Library of Congress, entitled "The Treaty Power and Congressional Power in Conflict: Cession of U.S. Property in the Canal Zone to Panama." This lengthy memorandum, which was prepared by Kenneth Merin, Legislative Attorney of the American Law Division of the Congressional Research Service, considers, inter alia, Articles I, II, IV, and VI of the U.S. Constitution and various treaties of the United States including the Agreement between the United States and Japan concerning the Ryukyu Islands and the Daito Islands with related arrangements signed on June 17, 1971 (TIAS 7314; 23 UST 446; entered into force on May 15, 1972), treaties between the United States and the Indian tribes, and the Treaty of Mutual Understanding and Cooperation, and Memorandum of Understandings reached between the United States and Panama signed on January 25, 1955 (TIAS 3297; 6 UST 2273; 243 UNTS 211; entered into force on August 23, 1955). The conclusion of the memorandum follows:

We have seen that the treatymaking power, vested in the President to be exercised with the advice and consent of the Senate, is extremely broad in scope. That power is limited when the Constitution confers an exclusive grant of authority on Congress. Although there are excellent arguments in favor of the proposition that the author

ity to dispose of property is concurrent and may therefore be exercised under the treatymaking power, those arguments are not altogether free from doubt. Supreme Court decisions have recognized the exclusive nature of Congress' article IV powers as they relate to the Federal-State relationship. Those rulings have never been qualified by other decisions characterizing those powers as concurrent when used by the Executive under the treatymaking power. It does not appear that past treaty practice with either foreign nations or Indian tribes provides authoritative precedent establishing, with any degree of certainty, the exclusive or concurrent nature of article IV, as that provision relates to disposal of land to a foreign sovereign.

It is clear that Congress has often asserted an exclusive right to dispose of Federal territory and property. It is also apparent that both the Executive and the Senate have recognized that claim in past dispositions of property in the Canal Zone to Panama. Therefore, while it is impossible to make a categorical assertion that article IV, section 3, clause 2, is either exclusive or concurrent, it appears that those powers have been recognized as exclusive for purposes of disposal of property in the Canal Zone to Panama.

Finally, regardless of the exclusive nature of the article IV power, the cooperation of all three branches of government is necessary for the effective implementation of American foreign policy. Although the President is the sole organ of communications with other nations, conclusion of a treaty without prior regard for congressional attitudes might adversely affect the continuing Executive/congressional relationship.

It is a very serious matter for the treatymaking power to enter into an engagement calling for action by Congress unless there is every reason to believe that Congress will act accordingly.

123 Cong. Rec. S 14941 (daily ed. Sept. 15, 1977) (footnote omitted).

On November 7, 1977, Robert Beckel, Deputy Assistant Secretary for Congressional Relations, Department of State, responded to a letter of October 12, 1977, from Senator Dick Clark requesting a "reasoned commentary . . . with rebuttals where possible" to the constitutional issues raised by the October 6, 1977, Special Report Number 2 of the Council for Inter-American Security, entitled "Panama Canal Treaty: Presidential Power Opposed to Legislative Authority." The Special Report took exception to portions of the July 29, 1977, testimony of Herbert Hansell, Legal Adviser of the Department of State, before the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary. Deputy Assistant Secretary Beckel's letter forwarded the requested commentary, the text of which follows:

The Special Report No. 2 by the Council for Inter-American Security takes issue with the testimony of the Legal Adviser of the State Department before the Senate Subcommittee on Separation of Powers, July 29, 1977, on three principal points:

1. Alleged reversal of the Department's position concerning the constitutionality of property transfer by treaty.

2. Alleged novelty of the theory of concurrent powers.

3. Alleged absence of support in prior treaty practice of the Department's position.

This memorandum will deal with these three major issues.

1.

Purported Reversal of Department's Position

It is simply not true that the Department has reversed its prior position. The State Department has adhered to the theory of concurrent powers since the Jay Treaty controversy, when it was propounded and defended with vigor by John Marshall, on the eve of his appointment as Secretary of State. It was set forth clearly and lucidly in a letter to Hamilton of April 25, 1796.1 As Justice Story reported, Marshall included cession of territory within that power.2 John Quincy Adams, as Secretary of State, asserted the same position on the occasion of the boundaries treaty of 1819 with Spain. More recent testimony by the Department supports adherence to this position. For example, Judge Green H. Hackworth, then the Legal Adviser, testified in 1942 (on the occasion of the transfer of certain properties to Panama) that "it might be done by the treatymaking process." The same view was taken by Deputy Legal Adviser Salans in his testimony of November 29, 1971, at the Hearings before the Subcommittee on Panama Canal of the Committee on Merchant Marine and Fisheries.*

The claimed "acknowledgment" by Assistant Secretary Holland of the need for implementing legislation in relation to the 1955 Treaty of Mutual Understanding and Cooperation with the Republic of Panama had nothing to do whatsoever with a constitutional requirement. Assistant Secretary Holland submitted a brief memorandum on "Legislation Required to Implement New Agreements With Panama." 5 The memorandum listed articles V, VI, and VII of the treaty and item 2 of the Memorandum of Understandings. While article V contained a stipulation to transfer certain properties, subject to the enactment of legislation by the Congress, the transfers agreed upon in articles VI and VII were couched in selfexecuting terms and transferred the property described by the treaty itself. This was recognized in item 2(f) of the Memorandum of Understandings attached to the treaty which specified that "the transfers or conveyances contemplated by this Item, subject to legislation authorization are in addition . . . to the transfer of real property effected by article VI of said Treaty." Similarly, the congressional act implementing the Treaty, P.L. 85-223, "authorized

1 See 2 Beveridge, The Life of John Marshall, (1916), p. 135/136. The letter is published in 6 Works of Hamilton. p. 109 and quoted infra under 2. 'Moore, International Law Digest 173 (1906).

3 Hearings before the Committee on Foreign Affairs, 78th Cong., 1st Sess. on H.J. 14, p. 9.

'92d Cong.. Serial No. 92–30. p. 12.

Ex. F., 84th Cong., 1st Sess., p. 60.

and directed" the conveyance of the properties listed in article V of the treaty but not of those listed in articles VI and VII of the treaty (sec. 102(a)) and recognized that the latter properties were conveyed "by operation of articles VI and VII." (Sec. 102(b)). With respect to the latter properties the statute merely provided for some bookkeeping operations. The fact that the effect of the transfer by article VI was to become effective only upon ratification of a prior treaty and completion of the withdrawal from the areas specified in article V and item 2(c) and (d) of the Memorandum of Understandings is not tantamount to a need for congressional authorization of the transfer under article VI. Viewed in that context the Holland statement is certainly not a position on the constitutional issue.

2.

Novelty of the Concurrent Powers Theory

Disregarding the conclusive debates to that effect in the Constitutional Convention, the concurrent powers doctrine was vigorously expounded by John Marshall, as early as in 1796 in connection with the Treaty of Amity, Commerce and Navigation between the United States and Great Britain, November 19, 1794, the famous Jay Treaty. This treaty dealt with many matters involving commerce with foreign nations, commerce on navigable waters, captures, and duties and imports, all subjects within the legislative powers of Congress. The testimony of the Legal Adviser did not specifically cite examples of treaties dealing with the subjects listed in Article I, section 8, of the Constitution because following the Jay Treaty the United States has concluded literally hundreds of treaties dealing with commerce with foreign nations, navigation, taxation, patents, copyrights, and other matters subject to congressional legislation.

These are John Marshall's precise words:

"We admit the discretionary constitutional power of the representatives on the subject of appropriations, but contend that the treaty is a completely valid and obligatory contract when negotiated by the President and ratified by him with the advice of the Senate, as if sanctioned by the House of Representatives also under a constitution requiring such sanction."

The Special Report attempts to defeat the testimony as to the concurrent scope of the treaty power and the legislative powers of Congress by asserting that a treaty is not capable of superseding a prior congressional act. Not only has the Supreme Court of the United States announced the contrary view in numerous dicta, e.g. in The Cherokee Tobacco, 78 U.S. 616, at 621, Whitney v. Robertson, 124 U.S. 190, at 194, The Chinese Exclusion Case, 130 U.S. 581, at 600, and Reid v. Covert, 354 U.S. 1, at 18, ftn. 34, but has actually so held in Cook v. United States, 288 U.S. 102 (1933). In that case there was an unquestioned conflict between § 581 of the Tariff Act of 1922, reenacted by the Tariff Act of 1930, and a treaty between the United States and Great Britain of May 22, 1924, for the prevention of smuggling of intoxicating liquors. Justice Brandeis held: