16

II.

Contrary to the assertions contained in part II of the Indian Counsel Memorandum that, in the absence of a principal-agent relationship between Congress and a participant in an Indian land transaction, there is no act susceptible of retroactive ratification, the case law is clear that Congress may validate an Indian land transfer after the transfer has taken place and even if no agent of Congress was involved in the original transaction.

The major argument advanced on pages 9 through 14 of the Indian Counsel Memorandum is that Congress cannot now ratify or approve a prior transfer of land by an Indian tribe because the concept of "ratification" can be applied only in a principal-agent relationship and, in the specific context of Indian land transfers, can be applied only when Congress adopts the actions of a federal officer or agent taken with apparent but not actual authority. Since it is alleged that no federal officer or agent was involved in the transactions that would be "ratified" by the Ancient Indian Land Claims Settlement Act, it is argued that Congress cannot retroactively ratify those transactions.

While it is true that the principles of ratification and retroactive approval often arise in the context of a principal-agent relationship, the assertion that congressional approval under the Nonintercourse Act of prior Indian land transfers can be supplied only when Congress has a principal-agent relationship with one of the parties involved in the transfer ignores the general principle that any action Congress might have authorized at the time Congress can

17

subsequently authorize by ratification and the principle, embodied in the Latin maxim omnis ratihabitio retrotrahitur et mandato priori aequiparatur, that every ratification relates back and is equivalent to a prior authority. Moreover, that assertion is clearly contrary to a number of relevant court decisions specifically relating to federal approval of 14/ prior Indian land transfers.

A.

Applicable judicial precedent is clear that federal approval of Indian land transfers may be provided after the transaction has taken place and even though no federal officer or agent was involved in the transaction.

Although it is not an issue that has frequently arisen, several court decisions support the proposition that Congress may enact legislation to validate an Indian land transfer under the Nonintercourse Act years after the transaction in question and even though no federal officer or agent was a participant in the transaction.

In Seneca Nation of Indians v. United States, 173 Ct. Cl. 912 (1965), the Court of Claims addressed the question whether Congress had approved the acquisition by the State of New York of certain lands in the Senecas' Oil Spring

14/ While the Indian Counsel Memorandum cites several cases where congressional action has had the effect of ratifying prior actions of federal agents, it fails to cite a single case stating that Congress' power to approve prior Indian land transfers is limited to those tranfers where federal agents were involved.

Reservation in 1858 and during the period 1863-1872. The court noted that these acquisitions were made "without any contemporaneous consent or approval from Congress or from but went on to analyze

any federal officer or agency,

15/

the question whether action by Congress some 69 years later

provided the necessary approval:

[I]f federal consent was needed under
the Trade and Intercourse Act, such
approval has been given.

All agree that
appellant would have no complaint if
assent had been given at the time of the
appropriations. But approval can also

come afterwards, and that is what
happened here. In 1927, Congress pro-
vided that New York's game and fish laws
should thereafter apply to the Senecas'
Oil Spring Reservation (among others),
except that this Act shall be inappli-
cable to lands formerly in the Oil Spring
Reservation and heretofore acquired by
the State of New York by condemnation
proceedings." This explicit recognition
and implicit ratification of New York's
Ownership of the tract must be taken as
Congress's approval of the original
appropriation, as well as of the state's
continued claim of right. 16,

16/ 173 Ct. Cl. at 915 (emphasis supplied). In footnote 9 on page 12 of the Indian Counsel Memorandum, it is suggested that this decision did not indicate whether the approval was retroactive, i.e., related back to the date of the original transaction. The last sentence of the court's decision quoted above, however, demonstrates that the court believed that the federal legislation ratified the state's "continued claim of right" to the land at issue, and thus necessarily approved the original transaction as of the date of that transaction.

Support for congressional authority to approve prior transfers of Indian tribal lands even though no federal officer or agent participated in the transaction is also found in Seneca Nation v. Christy, 126 N.Y. 122, 27 N.E. 275 (1891), writ of error dismissed on other grounds, 162 U.S. 283 (1896). In that case, the New York Court of Appeals considered an action for ejectment against a landowner whose title was derived from private parties that had purchased the land from the tribe in 1862 in a transaction that had not been approved by Congress. The tribe sought ejectment of the landowner on the grounds that the original transfer was in violation of the Nonintercourse Act. In concluding that the tribe could not maintain the action, the court noted that one basis for its conclusion was that even if the 1826 transfer were invalid, an act of Congress in 1846 authorizing the President to receive and deposit in the federal treasury the funds received by the tribe as consideration for the 1826 transfer constituted an effective ratification of the transfer:

The United States, which imposed the
restriction [the Nonintercourse Act],
could waive it and give effect thereby
to the intention of the parties to the
grant; and an act of receiving the fund,
and administering it for many years as a
trust fund for the benefit of the plain-
tiffs, furnishes the most emphatic
evidence of a ratification on its part
of the transaction from which the fund
was derived. 17/

17/ 126 N.Y. at 146-47, 27 N.E. at. 282.

A third relevant decision on this point is Buffalo,

R. & P. R. Co. v. Lavery, 82 Sup. Ct. 396, 27 N.Y.S. 443 (App. Div. 1894), aff'd on opinion below, 149 N.Y. 576 (1896).

That case involved the interpretation of an 1875 Act of

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Congress- that validated prior leases of land made by the

Seneca Nation and its members. The plaintiff railroad claimed it was entitled to the land in question on the basis of an 1872 lease from the Senecas, while the defendant, who was in actual possession of the land, claimed the right of possession based on a lease granted by the Senecas in 1866. Although the court assumed that prior to 1875 both the 1872 lease to the plaintiff railroad and the 1866 lease to the defendant's predecessor in interest were invalid because they were not approved by Congress under the Nonintercourse Act, the court determined that the 1875 Act of Congress effectively validated all prior leases made by the Senecas. Since the defendant's rights were based on a lease executed six years earlier than the lease granted to the plaintiff railroad, the court ruled that the defendant was entitled to possession.19/

18/

Act of Feb. 19, 1875, ch. 90, § 1, 18 Stat. 330.

19/ Implicit in the court's conclusion is that the 1875 Act of Congress validated the prior leases effective as of the date of the original leases. It is for this reason that the defendant's lease, which was executed six years prior to the plaintiff's lease, was upheld.