(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 bills purport to extinguish such claims without compensation and because section 4 (c) expressly precludes any future action by the tribes based on those claims, the bills patently violate the Fifth Amendment with respect to tribal

damages claims as well as title claims. due process and it is not constitutional.

20/

That result is not

20/ 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 aboriginal or recognized title. Compare Edwardsen v. Morton, 369 F. Supp. 1359 (D.C.D.C. 1973), where the court held trespass claims arising out of aboriginal title to be compensable property rights, with United States v. Richfield Co., 435 F.2d 1009 (D. Alaska L977), aff'd 612 F.2d 1132 (9th Cir. 1970), where the courts held that trespass claims based on aboriginal title were not compensable property rights within the meaning of the Fifth Amendment.

VII. The Bills Attempt to Legislatively Dictate Rules of Compensation and Decision in Violation of the Due Process Clause and the Constitutional Doctrine of Separation of Powers.

In addition to taking property without just compensation, discussed above, the bills would in effect establish a rule to be applied by the Court of Claims in computing compensation for the extinguished Indian claims. Yet it is settled that legislatively decreed rules of compensation violate due process and the constitutional doctrine of separation of powers. Moreover, the bills also promulgate 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 bills transgress the separation of powers and deprive the tribes of their due process right to an independent judicial determination of their constitutional claims.

A.

Congress may not determine the measure or the rule
of compensation in the exercise of its eminent domain
power.

Determination of the amount of compensation to be paid for a taking of 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 eminent domain, that same body may not turn around and act as judge in its own case

to determine 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, 571 (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 Congress 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:

-

that

[t]he legislature may determine what private
property is needed for public purposes
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 the legisla-
ture, its representative to say what compensa-
tion shall be paid, or even what shall be the
rule of compensation. The Constitution has de-
clared that just compensation shall be paid, and
the ascertainment of that is a judicial inquiry.
(Emphasis added.)

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, suora 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 bills conflict with these immutable principles of constitutional law. Section 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 bills provide that compensation must be computed in this fashion, they fix an impermissible legislative rule of compensation and 21/ unconstitutionally intrude on the judicial function.

21/ In Pose 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' power to pay the nation's debts, U.S. CONST., art. I, sec. 8, includes the power to prescribe a rule of compensation. continued on page 34

B.

The bills direct other rules of decision to be
applied by the federal courts.

The general rule is that Congress may not "invade the

judicial province by prescribing a rule of decision in a pend

ing case."

Glidden Co. v. Zdanok, 370 U.S. 530, 568 (1962), citing to United States v. Klein (U.S.) 13 Wall 128; Note,

Congressional Power Over State and Federal Court Jurisdiction 22/ 49 N.Y.U.L. Rev. 131, 140 n.58. The deprivation of federal jurisdiction contained in section 9 (b) and in section 4 (b)'s directive that any transfer "shall be deemed to have been made in accordance with the Constitution and all laws of the United States" (which resolves the major legal and factual issue in each of the affected Indian claims), has the practical effect

21/ continued from page 33

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 these bills, 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.

22/ Congress may, however, change the applicable substantive law while a case is being litigated and thus indirectly compel its outcome. United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801). Here, however, Congress does not seek to change the provisions of the Non-intercourse Act generally, but rather to nullify its application in particular cases pending in two states.