A gift tax cannot be imposed on gifts consummated before the taxing statute was adopted.[241] A conclusive presumption that gifts made within two years of death were made in contemplation of death was condemned as arbitrary and capricious even with respect to subsequent transfers.[242] A tax may be made retroactive for a short period to include profits made while it was in process of enactment. A special income tax on profits realized by the sale of silver, retroactive for 35 days, which was approximately the period during which the silver purchase bill was before Congress, was held valid.[243] An income tax law, made retroactive to the beginning of the calendar year in which it was adopted, was found constitutional as applied to the gain from the sale, shortly before its enactment, of property received as a gift during the year.[244] Retroactive assessment of penalties for fraud or negligence,[245] or of an additional tax on the income of a corporation used to avoid a surtax on its shareholders,[246] does not deprive the taxpayer of property without due process of law.
An additional excise tax imposed upon property still held for sale, after one excise tax had been paid by a previous owner, does not violate the due process clause.[247] A transfer tax measured in part by the value of property held jointly by a husband and wife, including that which comes to the joint tenancy as a gift from the decedent spouse, is valid,[248] as is the inclusion in the gross income of the settler of income accruing to a revocable trust during any period when he had power to revoke or modify it.[249]
GOVERNANCE OF THE INDIANS
The power of Congress in virtue of its wardship over Indians extends to a restriction on alienation of Indian lands even after a particular Indian has been granted citizenship.[250] But rights of tax exemption accruing to Indian allotments under an act of Congress, which have become vested, are protected by this amendment against repeal.[251] One who was duly enrolled as a member of the Chickasaw Nation acquired valuable rights which the Secretary of the Interior could not strike down without notice and hearing.[252] An act authorizing suit against allottees of Indian property as a class, for the value of services in securing the allotments, which provided for notice upon the governor of the tribe and designated the Attorney General to defend the suit, was consonant with due process.[253] Where the statute which created a tribal council for the Osage Indians, to be elected by the tribe, at the same time vested the Secretary of the Interior with discretion to remove a member without notice or hearing, there was no denial of due process of law since the right to elect was united in its creation with the right of removal.[254] A statute of the Choctaw Nation providing for the forfeiture and sale of buildings erected on their lands, was held to be unenforceable without giving the builder an opportunity to be heard.[255]
The National Eminent Domain Power
SCOPE OF POWER
Being an incident of sovereignty, the right of eminent domain requires no constitutional recognition. The requirement of just compensation is merely a limitation upon the exercise of a preexisting power[256] to which all private property is subject.[257] This prerogative of the National Government can neither be enlarged nor diminished by a State.[258] Whenever lands in a State are needed for a public purpose, Congress may authorize that they be taken, either by proceedings in the courts of the State, with its consent, or by proceedings in the courts of the United States, with or without any consent or concurrent act of the State.[259] The facts that land included in a federal reservoir project is owned by a State, or that its taking may impair the tax revenue of the State, that the reservoir will obliterate part of the State's boundary and interfere with the State's own project for water development and conservation, constitute no barrier to the condemnation of the land by the United States under its superior power of eminent domain.[260]
ALIEN PROPERTY
There is no constitutional prohibition against confiscation of enemy property.[261] Congress may authorize seizure and sequestration through executive channels of property believed to be enemy owned if adequate provision is made for return in case of mistake.[262] An alien friend is entitled to the protection of the Fifth Amendment against a taking of property for public use without just compensation.[263] The fact that property of our citizens may be confiscated in that alien's country does not subject the alien friend's property to confiscation here.[264]
PUBLIC USE