c. It is not clear that the claims of Indian tribes Unlike the situation of the Catawba Tribe in South Carolina, Indian tribes in New York, such as the Oneida Indian Nation and the Cayuga Tribe, did enter into treaties with the United States that related to their lands. While these tribes have asserted that the language of such treaties should be construed as granting them recognized title to the lands they once occupied, this issue has never been expressly adjudicated. 11/ Moreover, the language of these treaties is equally susceptible to the interpretation that the treaties were not intended to grant the kind of permanent property right that has generally been held to constitute true recognized title. Indeed, at least one Attorney General of the United States, in an opinion written in 1819 (which was reasonably contemporaneous with the signing of the 1794 treaty), has expressed the view that the relevant treaty did not enlarge the pre-existing rights of the tribes in question. 11/ One decision by the Indian Claims Commission has stated in dictum that the Oneida Nation held recognized title to certain of its lands in New York. Oneida Nation of New York v. United States, 26 Ind. Cl. Comm. 138, 140-41 (1971). Whether the title was aboriginal or recognized was not relevant to the issues under consideration by the Commission and was therefore not contested by the United States. Accordingly, the dictum would be of little precedential value. relied upon by these tribes in support of their claims of recognized title is Article II of the 1794 Treaty of The United States acknowledge the While the language of this provision commits the United States not to disturb the various tribes in the use and enjoyment of the lands reserved to them in their prior treaties with the State of New York, it should be noted that the referenced lands were to remain with the tribes "until they choose to sell the same to the people of the United States who have the right to purchase." Reference to the "right" of the people of the United States "to purchase" the lands in question makes sense only in the context of aboriginal title since, as noted earlier, the right to purchase the aboriginal title of Indian tribes or the "right of preemption" as it was generally known of the essential elements embodied in the concept of aboriginal title.12/ Support for this interpretation of the Treaty of Canadaigua is found in an opinion written by William Wirt, Attorney General of the United States, on March 26, 1819. Although the opinion does not set forth the text of the first question addressed by Attorney General Wirt in his opinion, it seems clear from the context of his opinion that the question was what effect the Treaty of Canadaigua had on the rights of Massachusetts and New York under the Hartford Convention of 1786 between those two states (which adjusted the rights of sovereignty and the rights of preemption between the two states with regard to a vast area of land in western New York that was the subject of conflicting grants from the British Crown): To the first question I answer that the legal Titles of the States of New York and Massachusetts and of the Grantees under them as settled and established by the Convention of 1786 are not divested or in any manner impaired by the treaty of Canandaigua, as 12/ The reference in the 1794 treaty to the right of the "people of the United States" to purchase the lands in question becomes understandable in light of the fact that the question whether the United States or the original thirteen states had the right of preemption to Indian lands within the borders of such states was not conclusively resolved until 1810, when the Supreme Court decided Fletcher v. Peck, 10 U.S. (6 Cranch) 87. to any of the Lands then occupied by the Thus, while the issue has not been conclusively resolved, there is a substantial basis for the view that the Cayuga Tribe and Oneida Indian Nation had only aboriginal title to lands transferred by them in the late eighteenth and early nineteenth centuries. 13/ Opinion of Attorney General William Wirt, Records of the Bureau of Indian Affairs, Letters Received by the Secretary of War Relating to Indian Affairs, 1800-1823, National Archives (Record Group No. 75), p. 1 (March 26, 1819) (emphasis supplied). 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 |