and the Secretary shall take immediate
action to implement the agreement, at
the end of the sixty-day period beginning
on the day such agreement is submitted

to the Congress, unless during such sixty-
day period either House adopts a resolution
disapproving such agreement.

In our view, the provision that either House might disapprove a proposed executive action, without that disapproval in turn being subject to presidential approval or disapproval, is unconstitutional.

Article I, section 1 of the Constitution vests all legislative powers granted thereby in a Congress, consisting of a Senate and a House of Representatives. Significantly, however, this power cannot be exercised absent participation by the President. Article I, section 7, clause 3 provides that "every Order, Resolution or Vote" to which concurrence of both Houses is necessary shall be presented to the President for his approval or veto. Giving the President this integral role in the legislative process was believed necessary in order to limit congressional power. As James Madison put it: "[I]t is against the enterprising ambition of this [legislative] department that the people ought to indulge all their jealousy and exhaust all their precautions." The Federalist No. 48, at 344 (Wright ed. 1961). And Alexander Hamilton viewed the veto power as necessary to prevent legislative and executive powers from becoming blended in the same hands. The Federalist No. 73, at 468-69 (Wright ed. 1961).

In addition to being the source for the legislative power of Congress, Article I of the Constitution thus provides a check on the exercise of that power through the presidential veto. It is our opinion that the one-House veto provision here does not respect this constitutional check on legislative power. The authority which Section 2 of this bill would grant to invalidate an agreement entered into by the Secretary would enable one House of Congress to effect a change in the substantive law under which the rights of those subject to the Act are to be determined. The constitutional problem is not the exercise of power in and of itself; Congress could no doubt prescribe the terms of an agreement by the normal legislative process or, through standards established in the Act at the time of its passage, could guide the Secretary's actions so as to achieve the same basic purpose produced by a one-House veto. The point is that the product of congressional action must be achieved in a manner that honors the Constitution's check on legislative power. To again quote Madison, "power is of an encroaching nature, and . . . it ought to be effectually restrained from passing the limits assigned to it." The Federalist No. 48, at 343 (Wright ed. 1961).

llere, however, such a constitutional check is absent. The retention of power through the legislative veto provision of Section 2 concentrates power in a single branch and portends legislative dominance of the executive branch because of the power Congress may wield independently of the President. This is the precise result feared by the Constitution's drafters and the reason for the inclusion of the presidential veto. This effect on the balance, distribution and exercise of power between the legislative and executive branches renders the legislative veto provision here unconstitutional. Stated a little differently, the provision is unconstitutional because the post-legislative action of one House can produce results that either cannot be, or are not, attained in the constitutionally prescribed manner.

In sum, then, while the Department of Justice defers to the Department of the Interior on the policy matters presented by this legislation, we note the unconstitutionality of Section 2 as drafted.

The Office of Management and Budget has advised that there is no objection to the submission of this report from the standpoint of the Administration's program.

Sincerely,

(Signed) Patricia M. Wald

Patricia M. Wald

Assistant Attorney General

Reference is made to your request for the views of the Department of the Army with respect to S. 660, 95th Congress, a bill "To authorize the Secretary of the Interior to enter into an agreement with the Cherokee, Choctaw, and Chickasaw Indian Nations for the purchase or lease by the United States of each nation's right and interests in the riverbed of the Arkansas River, and for other purposes."

The bill would authorize the Secretary of the Interior, after consultation with the Secretary of Defense, to enter into agreements with the three Indian Nations for purchase or lease of the bed of the Arkansas River, based upon appraisals conducted by the Secretary of the Interior and accepted by the Nations, and that any lease or purchase agreement shall provide for payment of the appraised value of the property rights involved.

The Department of the Army, on behalf of the Department of Defense, opposes the enactment of the bill.

The basis of this bill is the holding of the Supreme Court in Choctaw
Nation v. Oklahoma, 397 U.S. 620 (1970), that title to the bed of the
Arkansas River, within the State of Oklahoma from the Arkansas line
to the mouth of the Grand River, was held by the three Indian Nations
as a result of treaties between the United States and the respective
Indian Nations which preceded the admission of Oklahoma to the Federal
Union. Prior to this decision, it had been assumed that title to the
bed of the Arkansas River, being a navigable stream, passed to the
State of Oklahoma by operation of law upon its admission to the Union
in 1906. While the bill does not specify which portion, or portions,
of the Arkansas River is involved, it is assumed that the reach of
the river under consideration extends from the western boundary of the

State of Arkansas at Fort Smith, Arkansas, to the confluence of the
Arkansas River with the Grand (Neosho) River in the State of Oklahoma.

The rights exercised by the United States in this reach of the Arkansas River consists of portions of the McClellan-Kerr Arkansas River Navigation System, which extends through Arkansas and Oklahoma, and into Kansas, The Webbers Falls Lock and Dam, Robert S. Kerr Lock and Dam and the W. D. Mayo Lock and Dam are all located within this reach of the river. A11 interests in property situated above the ordinary high-water mark on both sides of the stream, which are required for these projects, were acquired from the private owners thereof by the United States. However, lands within the bed and banks of the Arkansas River within the boundaries of these projects have not been acquired by the Department of the Army. In accordance with a long line of judicial decisions, the Department of the Army has relied upon the servitude of navigation to support its use of these areas of the riverbed for the authorized project purposes. Under the Commerce Clause of the Constitution, the United States has the power to improve its navigable waters in the interest of navigation without liability for damage resulting to private property within the bed of the navigable stream. The courts have repeatedly held that the dominant power of the Federal Government extends to the entire bed of a navigable stream, which includes the lands below ordinary high-water mark. The exercise of the power within these limits is not an invasion of any private property right in such lands for which the United States must make compensation.

The decision, in the Supreme Court case referred to above, in no way modified or changed the well established judicial decisions pertaining to the navigation servitude. To the contrary, the decision contained the following specific wording:

"Indeed, the United States seems to have no present interest in
retaining title to the river bed at all; it had all it was con-
cerned with in its navigational easement via the constitutional
power over commerce."

Although the bill does not so state, it appears that the thrust of the measure is to compensate the Nations for the taking of the rights of the Nations in the bed of the river. In the course of improving navigation pursuant to an authorized project, the Department of the Army does not compensate private owners, or the State which owns the riverbed, where such lands are subject to the navigation servitude. There is no apparent basis for different treatment to be accorded to the Cherokee, Choctaw and Chickasaw Indian Nations of Oklahoma for their interests in the bed of the river which are already subject to the navigation servitude, and has been admitted by the Nations in the case of Choctaw Nation vs. Oklahoma (397 U. S. 620) that:

"...it is obvious that the Government had no need to retain anything but a navigation easement on the streams in the lands ceded to the Choctaw." (cf. briefs of Cherokee Nation and Choctaw Nation 25 L Ed, 2d 1006)

The bill provides for the use, lease and/or purchase by the United States of the rights of the Nations in the bed of the river. As noted above, the rights of the Nations are not being used. Those rights are still outstanding in the Nations, subject to the paramount servitude of the United States. The fact that those rights are, and have been, subordinate to the paramount right does not render them now compensable. Any use of those rights by the Nations may be exercised to the extent that they do not conflict with, or hinder the exercise of, the navigation easement. The Department of the Army has been informed that an evaluation of the Arkansas River bed from the Three Forks area to Arkansas-Oklahoma State line has been prepared for the Bureau of Indian Affairs, Department of the Interior, by W. R. Holway and Associates, a firm of consulting engineers located in Tulsa, Oklahoma. In its summary of the total value of the Arkansas River bed, Holway included what it terms a land valuation appraisal, together with the value of the sand and gravel on the tribal lands, the royalty value of the oil and gas resources, the total royalty value of two coal deposits together with a number of values unrelated to the value of bed and bank ownership and stemming from Federal improvements such as dams, the economic benefits of fish and wildlife, the present worth of recreational benefits, and the value of the powerhead, for a grand total of $177,024,468.

.

The Department of the Army is aware of four previous occasions on which the United States has acquired the bed and banks of navigable waters from respective Indian owners. All these acquisitions arose as a result of the Flood Control Act of December 22, 1944 (58 Stat. 887, 891) which authorized five major reservoir projects on the Missouri River, four of which (Garrison; Oahe, Big Bend, Fort Randall) required the acquisition of vast acreages of Indian Reservation fast lands for project purposes. As a result of such acquisitions substantial numbers of tribal members were required to be relocated for project purposes and were forced in effect to reshape their communities. Legislative committee reports with regard to the compensation statutes affecting one project (Fort Randall) specifically state that it was "in the overall interest that this acreage (the bed of the Missouri River) be removed from tribal ownership to prevent jurisdictional disputes and conflicts which would arise from exercise of treaty rights. "1 While the legislative reports are silent with regard to explicit reasons for the compensation of river bed ownership in the other instances, we believe that such compensation, while not required because of the Federal navigable servitude, was congressionally directed not only to preclude jurisdictional disputes based on treaty rights when a Federal navigation project necessitated the acquisition of vast acres of contiguous Indian tribal fast lands for the project operation, but also to legislatively satisfy all Indian claims involved