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Court determined that the actions and inactions of the executive and legislative branches over a fifty year period constituted ratification of a federal Indian agent's unauthorized action in placing a band of Arapahoes on reservation lands of the Shoshones. The ratification was determined

to relate back to the date when the Arapahoes were wrongfully placed on the Shoshones' reservation and the transfer of the land from the Shoshones to the Arapahoes was deemed to have taken place at that time.

Clear support for Congress' power to ratify prior transfers of recognized title can also be derived from a line of cases holding that any action that Congress might have authorized at the time it can subsequently authorize by ratification of the action. See Graham & Foster v. Goodcell, 282 U.S. 409, 427-28 (1931); Phillip Wagner v. Lesser, 239 U.S. 207 (1915); United States v. Heinszen & Co., 206 U.S. 370 (1907); Mattingly v. District of Col., 97 U.S. 687 (1878). . B. The courts have upheld Congress' power to validate retroactively transfers of lands by Indians that were invalid at the time of the transfer because the federal government's approval of the transfer, as required by statute, had not be obtained.

Apart from the general line of cases holding that Congress can authorize after the fact any action that it might have authorized before the fact, there are two circuit court of appeals decisions that have specifically upheld the

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constitutional power of Congress to validate transfers of land by individual Indians that were invalid at the time of the transfer because the federal government's approval of ↑ the transfer, as required by statute, had not been obtained. The statutory restrictions involved in these decisions are ... very similar to the restrictions contained in the Nonintercourse Act.

In McElroy v. Pegg, 167 F.2d 668 (10th Cir.), cert. denied, 335 U.S. 817 (1948), the issue was whether a 1932 transfer of land by one Harjo, a member of one of the Five Civilized Tribes, to the defendant was valid in light of the fact that (1) Harjo owned the land under a deed that included a provision, required by regulations of the Secretary of the Interior pursuant to a 1908-act of Congress, that no transfer of the land "shall be of any force and effect or capable of confirmation or ratification, unless made with the consent of and approved by the Secretary of the Interior," and (2) the transfer to the defendant was not approved by the

Secretary. In 1945, some thirteen years later, Congress 1/

passed a statute declaring that no transfer of land by members of the Five Civilized Tribes "shall be invalid because such conveyance was made without the consent and approval of

the Secretary of the Interior." In sustaining the title

Act of July 2, 1945, ch.283, §1, 59 Stat. 313.

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of the defendant against a challenge by an Indian who claimed the land passed to her under Harjo's will prior to the enactment of the 1945 statute, the court reaffirmed Congress' power "to impose, continue, remove, qualify, or reimpose restrictions with respect to the conveyance of Indian lands" and that

Congress, by curative statute, could validate
anything it might have authorized previously,
or make immaterial anything it might have
omitted from a previous enactment.

Since

it could have omitted the requirement in the
first instance, Congress had power by a curative
statute to make the lack of such approval im-
material and to validate deeds made without such
approval.1/

In an earlier and somewhat related case, Goddard v. Frazier, 156 F.2d 938 (10th Cir.), cert. denied, 329 U.S 765 (1946), the Court of Appeals for the Tenth Circuit reviewed the constitutionality of another provision of the same 1945 Act dealing with the Five Civilized Tribes. Section 3 of

the 1945 Act provided that no judgment or decree prior to 1945 involving lands owned by members of the Five Civilized Tribes should be void or invalid because the United States was not a party to the proceeding, and stated that all such judgments or decrees "are hereby confirmed, approved, and declared valid." Section 3 was necessitated by the decision

167 F.2d at 671-72.
671-72

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of the Supreme Court in United States v. Hellard, 322 U.S. 363 (1944), holding that transfers of lands owned by members of the Five Civilized Tribes to non-Indians pursuant to of partition decrees ordered by state courts were invalid ifned. the United States had not been made a party to the partition suit. The Supreme Court had held that the participation of the United States was necessary to ensure compliance with federal policy "of preserving restricted lands for the Indians or in seeing that the best possible price is obtained 1 where a sale is desirable." Faced with the fact that the

Supreme Court's 1944 decision would invalidate numerous land transfers, Congress enacted section 3 of the 1945 Act to validate these transfers retroactively.

In upholding the constitutionality of the retroactive validation of the earlier transfers, the Tenth Circuit in Goddard addressed the question whether "by the enactment of the curative statute the Congress arbitrarily took the Indian's property by ratifying and validating the judicial proceedings by which all the Indians intended to effect an alienation of the property they now claim but failed only because the United States in its governmental capacity was an indispensable 2/ party.

On this issue, the court determined that prior

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court decisions had established that "a legislature may

validate by subsequent act anything it might have authorized 1

previously,

and that a curative statute founded upon justice and equity and intended to "right a wrong" is not unconstitutional.

Moreover, and most significantly, the result was not affected by the fact that Congress acted both after the Supreme Court in Hellard had declared the transfers void and after the Indian plaintiffs in the instant case had won a district court judgment that they owned the land:

[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.2/

In summary, the decisions in McElroy v. Pegg and Goddard v. Frazier resolve any possible doubt that defects in the titles of present landowners caused by the failure of Congress to approve the original transfers of recognized title lands by Indian tribes can be eliminated by legislation that supplies the necessary congressional approval and validates the original transfers.

Id. at 941, quoting from J. Sutherland, Statutory Construction $2206, 3d ed. (1943).

2/ Id. at 942.