337 U.S. 682 (1949). Second, and more importantly, the lands in Creek Nation had been conveyed by the United States to innocent third parties having equities analogous to bona fide purchasers. In many cases, it would have been grossly unjust to require reconveyance of the land to the Tribe decades following an innocent error. But since it would have been equally unjust to deprive the Tribe of a meaningful remedy, the Court was led to hold that a "taking" had occurred. In the present case, the land in question has not been reconveyed to third parties and it appears that the United States has not substantially changed its position in reliance on the surveying errors. Thus, equitable considerations, as well as abstract legal doctrine, accord with the view that no technical "taking" has occurred. The Court of Claims decision in Confederated Salish rested on the premise that a "taking" had occurred there by virtue of a combination of Congressional and Executive ratification of the original Executive error. The opinion does not point to any specific Congressional acts deemed to constitute ratification in that case. The history of that controversy might disclose Congressional ratification with knowledge of the relevant facts concerning the original Executive error, and, if so, that case is distinguishable from the present case. However, I am not prepared to read the Confederated Salish decision as resting alone upon a concept of Executive ratification of an unauthorized Executive act. Since the land in question here has not been "taken” by the United States within the meaning of the Fifth Amendment, it can be restored to the Tribe by Executive action. This can be accomplished by Executive order, pursuant to 16 U.S.C. 473. Alternatively, the Secretary of 2 Viewed in this light, Creek Nation is a sub silentio exception to the general principle that unauthorized Executive action may not result in a Fifth Amendment "taking". That result is virtually compelled by equitable considerations where, as in Creek Nation, land has been erroneously conveyed to innocent third parties. See also Sioux Tribe v. United States, 315 F. 2d 378 (Ct. C1. 1963). 3 The Department of Agriculture submission indicates that most of the land is in its natural state. Although some federal funds have been expended for camp grounds and roads, they aggregate less than amounts realized by the government from timber sales. Agriculture can direct the Forest Service to surrender possession to the Tribe. The fact that a portion of the land is now treated as a wilderness area does not affect the question of restoration. Although validly designated wilderness areas can only be changed with Congressional consent (16 U.S.C. 1131), the foregoing principles preclude application of that limitation here, where the land should never have been designated a wilderness area in the first place. Cf. 16 U.S.C. 1134, providing for access to privately-owned lands in wilderness areas. Should Congress deem it desirable that the land be preserved as a wilderness area or national forest, it can, of course, take appropriate action to authorize its purchase or condemnation. Respectfully, JOHN N. MITCHELL. OVERSEAS PRIVATE INVESTMENT CORPORATION OBLIGATIONS UNDER THE FOREIGN ASSISTANCE ACT OF 1961, AS AMENDED Investment guaranties issued by the Overseas Private Investment Corporation pursuant to section 234(b) of the Foreign Assistance Act of 1961, as amended, constitute general obligations of the United States and are backed by its full faith and credit. THE SECRETARY OF THE TREASURY. FEBRUARY 29, 1972. MY DEAR MR. SECRETARY: You have requested my opinion as to whether investment guaranties issued pursuant to section 234(b) of the Foreign Assistance Act of 1961, as amended, by the Overseas Private Investment Corporation (OPIC) constitute obligations, in accordance with their terms, of the United States of America, and whether the full faith and credit of the United States is pledged for the full payment and performance of such obligations. The Foreign Assistance Act of 1961, as amended, (§ 231, 22 U.S.C. 2191) established OPIC as an agency of the United States. Section 234(b), 22 U.S.C. 2194 (b), authorizes it to issue to eligible investors guaranties of loans and other investments made by such investors assuring against loss due to such risks and upon such terms and conditions as OPIC may determine. Section 237 (c) provides that such guaranties "shall constitute obligations, in accordance with the terms of such insurance or guaranties, of the United States of America and the full faith and credit of the United States of America is hereby pledged for the full payment and performance of such obligations.” 22 U.S.C. 2197 (c). I conclude therefore that a guaranty by the Overseas Private Investment Corporation of loans and other investments issued pursuant to section 234 (b) of the Foreign Assistance Act of 1961, as amended, is an obligation of the United States of America and that the full faith and credit of the United States is pledged for the full payment and performance of such guaranties. Sincerely, JOHN N. MITCHELL, |