Moreover, section 8 of the bill provides that if any

to a particular Indian tribe, it is the intent of Congress that the entire Act be invalidated with respect to such tribe.

Consequently, if the Supreme Court determines that

the bill effects a taking of a tribe's property rights and that the compensation determined in accordance with section 6 (c) is constitutionally inadequate, then the bill will not apply to that tribe and its claims will not be extinguished.

It

is difficult to imagine how a tribe's right to due process and just compensation could be more fully safeguarded.

standards.

What the Indian Counsel Memorandum appears to be saying is that Congress may not, under any circumstances, indicate a measure of compensation for a taking even if a court may find that measure to be fully consistent with fifth amendment The doctrine of separation of powers has never been pushed to such an extreme, however. In none of the cases cited in the Indian Counsel Memorandum did a court invalidate an entire statutory scheme as a result of an effort by Congress to specify a measure of compensation for a taking. In the only case cited in the Memorandum that is even remotely in point, Monongahela Navigation Co. v. United States, 148 U.S. 312 (1893), the Supreme Court held that Congress' direction that a franchise to collect tolls not be

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considered in valuing a lock and dam should be disregarded by the trial court in determining just compensation for the property. Significantly, the Court did not invalidate the statute merely because Congress had specified a rule of compensation. Instead, it examined the question of compensation, disagreed with the rule laid down by Congress, and directed that another rule be applied in implementing the statute. Had the Court agreed with the rule stated in the legislation, it is obvious that it would have applied that rule and would not have invalidated the statute.

A more recent case that is also instructive is the Regional Rail Reorganization Act Cases, 419 U.S. 102 (1974), which involved the government-mandated transfer of massive quantities of railroad assets from several bankrupt northeastern railroads to a newly-created railroad. In the legislation mandating the transfer, known as the "Rail Act," Congress provided that the bankrupt railroads would receive as compensation for their assets the new railroad's securities plus a specified amount of government-guaranteed obligations. When the constitutionality of the Rail Act was challenged, the Supreme Court did not hold the Act to be invalid because Congress had provided a measure of compensation that might prove to be deficient under the fifth amendment. Rather, the Court found that a remedy under the

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49/

Tucker Act- was available to the transferors for any such deficiency, and that such a remedy ensured the constitutionality of the Act.

With respect to the Ancient Indian Land Claims Settlement Act, the inseparability provision of section 8 provides the same assurance against an uncompensated taking that the Tucker Act remedy provided in the context of the Rail Act. As long as all affected tribes are protected by section 8, the bill cannot effect a taking of property rights protected by the fifth amendment without just compensation.

The second argument contained in part V of the Indian Counsel Memorandum is that the bill impermissibly promulgates rules of decision to be applied by the federal courts and thereby invades the judicial province. This argument, however, is based upon a mistaken view of the effect of the bill and of Congress' legislative powers, and is simply another version of the argument advanced in part II of the Memorandum that Indian land transfers may not be retroactively validated.

To begin with, the fact that the bill would provide the clear congressional approval of prior Indian tribal land transfers that the Indian tribal claimants in the pending cases have asserted has never been given does not constitute

branch.

an impermissible intrusion on the functions of the judicial In footnote 24 on page 35 of the Indian Counsel Memorandum, it is stated that enactment of the bill "would have the effect of reversing the holding of the district court [in the Oneida Indian Nation litigation against the County of Oneida] that the transfer was in violation of the Nonintercourse Act." The implication is that it would be a constitutionally impermissible intrusion on the judicial province for Congress to effect such a reversal.

However,

If

the district court judgment was based on the view of the district court judge that at the time of the decision Congress had never approved the transfers in question. Congress subsequently effects such an approval, it is clear that the fundamental predicate for the court's decision would no longer exist.

Moreover, the decision in Goddard v.

Frazier, 156 F.2d 938 (10th Cir.), cert. denied, 329 U.S. 765 (1946), discussed at page 24, above, makes clear that [A] legislative act which cures the illegality or defect may be passed and become operative after suit is brought to enforce the rights accruing by reason of the illegality or defect. The bringing of the suit vests in a party no right to a particular decision. 50/

50/

156 F.2d at 942. It should be noted in connection with the Goddard case that the Supreme Court had previously determined that transfers of Indian lands pursuant to state court partition proceedings in which the United States was not a party were invalid, and that the legislation in question was enacted after the plaintiff in Goddard v. Frazier had won a district court decision.

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More generally, this issue must be considered in light of Congress' broad power under the Constitution to establish rules of decision applicable in federal courts. The extent of this power was made clear as early as 1801, when the Supreme Court held, in United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801), that if, while a case is pending, "a law intervenes and positively changes the rule which governs, the law must be obeyed . In such a

case the court must decide according to existing laws See also Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir.), cert. denied, 335 U.S. 887 (1948) (discussed in footnote 48 on page 63, above, where the United States Court of Appeals for the Second Circuit upheld the application of the Portal-to-Portal Act to claims for compensation pending at the time).

Against this background, the dictum from United States v. Klein, 80 U.S. (13 Wall.) 128, 146 (1872), cited at page 34 of the Indian Counsel Memorandum, that Congress may not prescribe rules of decision in pending cases, is simply not the law. See Hart and Wechsler, The Federal Courts and the Federal System 315-16 & n. 4 (2d Ed. 1973). (In Glidden v. Zdanok, 370 U.S. 530, 568 (1962), also cited at page 34 of the Memorandum, the Supreme Court, in the course of a discussion of whether the Court of Claims is an Article III court, merely made an offhand reference to the Klein dictum