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The Court concluded that the Act was not motivated by punitive intent, citing the fact that "just compensation" was to be awarded to Mr. Nixon in return for the Presidential records. The Court, looking back over earlier decisions, formulated a functional test to determine the existence of punishment:

(Footnotes omitted.) 433 U.S. at 475-476.

But our inquiry is

not ended by the determination that
the Act imposes no punishment tra-
ditionally judged to be prohibited by
the Bill of Attainder Clause. Our
treatment of the scope of the Clause
has never precluded the possibility
that new burdens and deprivations
might be legislatively fashioned that
are inconsistent with the bill of at-
tainder guarantee. The Court, there-
fore, often has looked beyond mere
historical experience and has ap-
plied a functional test of the exis-
tence of punishment, analyzing
whether the law under challenge,
viewed in terms of the type and
severity of burdens imposed, reason-
ably can be said to further nonpuni-
tive

legislative purposes.

estate.

In summary, the bill of attainder was a common and notorious legislative device, firmly rooted in English common law at the time the United States Constitution was adopted. The attainder of death was usually accompanied by a forfeiture of the condemned person's property to the King and the corruption of his blood, whereby his heirs were denied the right to inherit his Blackstone traced the practice of corruption of blood to the Norman conquest. See Nixon v. Administrator, supra, footnote 35, 433 U.S. 473. Although the device was utilized by the states following the Revolutionary War to confiscate the property of alleged Tory sympathizers, the Framers of the Constitution were united in opposing it, and the prohibition against bills of attainder was included in the Constitution with little controversy or debate.

Thus, while corruption of blood was a familiar concept to the Framers, a survey of U.S. Supreme Court cases indicates that the concept was never incorporated into post-Constitution American law, or at least not any which reached the Supreme Court. From the outset, the Supreme Court has interpreted the prohibition liberally to ban all acts of legislative punishment, and has never been constrained to a narrow view of the bill as it was used under English law. Thus, the key to ascertaining whether the prohibition has been violated under American jurisprudence is to determine whether the legislation in question is motivated by an intent to inflict punishment, and whether the burdens imposed have no purposeful justification other than punishment.

Should you desire a more detailed historical account of the bill of attainder, it might be useful to examine the sources cited herein. In many cases the footnotes, which have been omitted from quoted excerpts in the interest of brevity, contain references to primary sources of historical interest.

Bebis Jewele

Robin Jewler
Legislative Attorney

Washington, D.C.

20540

Congressional Research Service
The Library of Congress

ANALYSIS OF THE ANCIENT INDIAN LAND CLAIMS SETTLEMENT ACT OF 1982--H.R. 5494 and S. 2084

Elizabeth B. Bazan
Legislative Attorney
American Law Division

April 9, 1982

Washington, D.C.

20540

Congressional Research Service
The Library of Congress

ANALYSIS OF THE ANCIENT INDIAN LANDS SETTLEMENT
ACT OF 1982--H.R. 5494 AND S. 2084

The Ancient Indian Lands Settlement Act of 1982 has been introduced

The

in both the House of Representatives and the Senate for consideration. House bill, H.R. 5494, was introduced by Rep. Gary Lee of New York, for himself, Rep. Ken Holland of South Carolina, and Rep. George Wortley, also of New York, on February 9, 1982. S. 2084, a bill identical to that 1/ introduced by Mr. Lee, was introduced in the Senate on the same day by Sen. Alfonse D'Amato of New York, for himself and Sen. Strom Thurmond of South Carolina. This report will discuss briefly the historical context of the Eastern land claims, examine these two bills and consider their constitutional implications.

Background on the Eastern Land Claims

On July 22, 1790, the Indian Trade and Intercourse Act of 1790

was enacted. It provided in pertinent part:

That no sale of lands made by any Indians, or any nation or
tribe of Indians within the United States, shall be valid
to any person or person, or to any state, whether having the
right of preemption to such lands or not, unless the same shall
be made and duly executed at some public treaty, held under
the authority of the United States.

Act of July 22, 1790, ch. 33, § 4, 1 Stat. 137. From 1793 onward, the
"public treaty" language was replaced by a requirement of a "treaty or

1/ S. 2084 was introduced on calendar day February 9, 1982. However, the legislative day it was introduced was January 25, 1982. For a discussion of the distinction between calendar days and legislative days, see W. Oleszek, Congressional Procedures and the Policy Process 155-56, 224 (1978). There is one stylistic difference between the bills in provisos in their respective Sections 5(e), at page 10, line 25 of each bill, but this makes no substantive difference between the two.

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2/

convention." By the 1790 Act and its successors, the federal government sought to preempt the field, restraining alienation of Indian lands to treaties negotiated with the approbation of the United States. President Washington explained the purpose of the new Act to the Seneca Indians in 1790 as follows:

I must inform you that these evils arose before the present
Government of the United States was established, when the
separate States, and individuals under their authority,
undertook to treat with the Indian tribes respecting the sale
of their lands. But the case is now entirely altered; the
General Government, only, has the power to treat with the
Indian nations, and any treaty formed, and held without its
authority, will not be binding.

Here, then, is the security for the remainder of your lands. No State, nor person, can purchase your lands, unless at some public treaty, held under the authority of the United States.

3/

2/ E.g., Act of March 1, 1793, ch. 19, 1 Stat. 329; Act of May 19, 1796, ch. 30, 1 Stat. 469; Act of March 3, 1799, ch. 46, 1 Stat. 743. These, like the 1790 statute, were temporary acts. The first permanent Trade and Intercourse Act was enacted on March 30, 1802. This act, as amended, formed the basis for the Act of June 30, 1834, from which the present statute derives. The present provision states:

No purchase, grant, lease, or other conveyance of lands,
or of any title or claim thereto, from any Indian nation or
tribe of Indians, shall be of any validity in law or equity,
unless the same be made by treaty or convention entered into
pursuant to the Constitution. Every person who, not being
employed under the authority of the United States, attempts
to negotiate such treaty or convention, directly or indirectly,
or to treat with any such nation or tribe of Indians for the
title or purchase of any lands by them held or claimed, is
liable to a penalty of $1,000. The agent of any State who
may be present at any treaty held with Indians under the
authority of the United States, in the presence and with
the approbation of the commissioner of the United States
appointed to hold the same, may, however, propose to, and
adjust with, the Indians the compensation to be made for
their claim to lands within such State, which shall be
extinguished by treaty.

25 U.S.C. § 177, Act of June 30, 1834, c. 161, § 12, 4 Stat. 730.

3/ I American State Papers: Indian Affairs 142 (W. Lowrie & M. St. Clair Clarke eds. 1832), cited in Clinton and Hotopp, Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims, 31 Me. L. Rev. 17, 37 (1979).