257 F2d 885 Tuscarora Nation of Indians v. Power Authority of State of New York W

257 F.2d 885 TUSCARORA NATION OF INDIANS, also known as Tuscarora Indian Nation, Plaintiff-Appellant,
v.
POWER AUTHORITY OF the STATE OF NEW YORK, Robert Moses,
Defendants-Appellees-Corss Appellants, and
Superintendent of Public Works of the
State of New York, John W.
Johnson, Defendant-Appellee.

No. 394, Docket 25236.

United States Court of Appeals Second Circuit.

Aruged July 10, 1958.
Decided July 24, 1958, Petition for Rehearing and for
Clarification Denied Aug. 26, 1958, Certiorari
Denied Oct. 13, 1958, See 79 S.Ct. 66.

Arthur Lazarus, Jr., Washington, D.C. (Strasser, Spiegelberg, Fried & Frank, Daniel M. Singer, Washington, D.C., on the brief), for plaintiff-appellant.

Thomas F. Moore, Jr., New York City (Samuel I. Rosenman, New York City, Henry S. Manley, Strykersville, John R. Davison, Albany, on the brief), for defendants-appellees-cross appellants, Power Authority of State of New York and Robert Moses.

Julius L. Sackman, Associate Atty., Albany, N.Y. (Louis J. Lefkowitz, Atty. Gen., of the State of New York, Paxton Blair, Sol. Gen., Albany, N.Y., on the brief), for defendant-appellee, Superintendent of Public Works of State of New York, John W. Johnson.

Before SWAN and MOORE, Circuit Judges, and ANDERSON, District Judge.

MOORE, Circuit Judge.

1 The appellant Tuscarora Nation of Indians (referred to as 'Tuscarora') brought this action in the federal court under 28 U.S.C.A. 1331, 2201 and 2202: (1) for a declaratory judgment to the effect that the appellees, Power Authority of the State of New York, Robert Moses, and Superintendent of Public Works of the State of New York, John W. Johnson, have no power to acquire a portion of their lands without the express consent of the United States and (2) for a permanent injunction against the appropriation of their lands without their consent.

2 The suit was commenced on April 19, 1958 in the Southern District of New York, and was later transferred (161 F.Supp. 702) to the Western District, where it was heard on the merits. The decision of June 24, 164 F.Supp. 107, ordered (1) that the Power Authority's motion for a three judge court be denied; (2) that the temporary restraining order previously issued be dissolved; (3) that plaintiff's motion for a permanent injunction be denied; (4) that the complaint be dismissed without costs; and (5) that the affidavit of Henry S. Manley be stricken as an affidavit and be considered as an additional brief on behalf of the defendants. The appeal is taken pursuant to 28 U.S.C.A. 1291.

3 The Tuscarora are a tribe of American Indians occupying lands in western New York. They migrated to central New York State from North Carolina prior to the American Revolution and became a part of the Iroquois Confederacy, sometimes referred to as the Six Nations. Subsequent to the Revolution New York State desired to move the Oneidas and Tuscaroras from central New York to the territory of the Senecas in western New York. As a result of sales of the Indians' rights of occupation the main body of Tuscaroras moved to Niagara County where they acquired three tracts of property. The first tract, a mile square (640 acres), was a right of occupancy conceded to them by the Senecas. The second tract (1280 acres) was a gift from the Senecas and the Holland Land Company. The third and largest tract, and the only tract involved in this litigation, consists of 4329 acres. This third tract was acquired in 1804 (title finally taken in 1809) for the Tuscarora through the good offices of the Secretary of War of the United States. The Tuscarora purchased the fee to this tract from the Holland Land Company out of the proceeds received from the sale of their North Carolina properties. Since that time the Tuscarora have lived on these tracts as a tax-exempt Indian Reservation despite the fact that the third tract was acquired by purchase and not as a grant from the United States.

4 The Power Authority of the State of New York is in charge of the development of a power project in western New York known as the Niagara River Power Project. This project was authorized by Congress and made possible by a treaty with Canada (February 27, 1950), which greatly enlarged the amount of water from the Niagara River available to the United States for power purposes. Following the treaty Congress through Public Law 85-159 (Act of August 21, 1957, 71 Stat. 401, 16 U.S.C.A. 836, 836a) authorized and directed the Federal Power Commission to issue a license to the Power Authority for the construction and operation of a power project with capacity to utilize all of the United States' share of the water permitted to be diverted under the terms of the treaty. The license was issued on January 30, 1958. On March 28, 1958 the Power Authority filed a petition in the Supreme Court of the State of New York for Niagara County to condemn 1,383 acres of the Reservation lands of the Tuscarora Nation of Indians whose entire Reservation consisted of 6,249 acres. The portion sought to be condemned was planned to be used for a water storage reservoir in connection with the Niagara power project. On April 15, 1958 the Power Authority withdrew the condemnation proceedings in the Supreme Court of New York and by filing a map of the 1,383 acre portion of the Tuscarora Reservation pursuant to 30 of the New York State Highway Law, McKinney's Consol.Laws, c. 25, and Article 5, Title 1 of the Public Authorities Law, McKinney's Consol.Laws, c. 43-A, appropriated the 1,383 acres for the purpose of the reservoir. At the same time a sum estimated by the Power Authority to be the fair market value fo the appropriated land was, as required by Statute, deposited with the Comptroller of the State of New York. The provisions of 30 of the New York Highway Law authorize the Power Authority, after filing the map and depositing the money, immediately to enter upon and take possession of the property described.

5 A power plant has been planned which will be the largest hydro-electric project in the United States. The total cost is estimated at upwards of.$625,000,000 and contracts have already been authorized for more than $339,000,000. An essential part of the project is a large water storage reservoir of at least 600,000 acre feet. Construction work and power lines relocation are now at the very edge of the Tuscarora Reservation.

6 Although both parties have given the court the benefit of the historical development of title to Indian lands in New York State and the various treaties relating thereto, this background material affects largely tracts 1 and 2 which are not now before the court. Since tract 3 was acquired in fee by purchase the primary question is: What laws and treaties apply to, and what other obligations have been assumed by the United States and the State of New York with respect to, this particular Indian Reservation?

7 Appellant claims that the taking of a portion of its Reservation is in violation of Title 25 United States Code, Sections 177 and 233. Appellees, on the other hand, assert that these statutes do not apply to the State of New York which possesses sovereign power of condemnation over Indian lands, independent of and never surrendered to, the Federal Government, derived from its status as one of the original thirteen colonies.

8 Indian Non-Intercourse Acts: State and Federal

9 In order to prevent Indians from being victimized by artful scoundrels inclined to make a sharp bargain, both New York and the United States from an early date imposed restrictions on the acquisition of lands from the Indians by private persons unless adequate protection was afforded. Thus in 1777 the first Constitution of New York State provided that 'no purchases * * * shall be binding * * * or deemed valid, unless made under the authority and with the consent of the legislature of this State' (Article XXXVII). This provision, in substance, has been continued in subsequent constitutions, Const. art. 1, 13.

10 In 1790 the United States enacted its first Indian Non-Intercourse Act which imposed a similar restriction against sale 'unless the same shall be made and duly executed at some public treaty, held under the authority of the United States' (1 Stat. 138). A second Non-Intercourse Act was passed in 1793, 1 Stat. 329. Other acts embodying substantially the same restrictions were enacted but the statute remains in virtually the same form today. Thus 25 U.S.C.A. 177 provides:


11 'Purchases or grants of lands from Indians. 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.'

Subsequent Laws and Decisions

12 As time passed the states were given more and more power to apply their laws in the Reservations of the Indians. Appellees refer to many cases, spread over a century and a half or more of dealings between the State of New York and the Indians within its boundaries, relative to Indian Reservations or tribal lands, reveal transfers in which parcels of land or interests therein, such as highways, easements for telephone lines and other takings short of the seizure of the whole or a substantial portion of such Reservations or tribal land, have been taken, granted or conveyed without special authorization by Congress and with the express, or at least tacit, acquiescence of the executive official of the United States chargeable with the responsibility for Indian affairs. A great majority of these cases have been in the State Courts of New York and two or three have been in the District Court of the United States. An examination of these cases discloses that between the earliest years of this Nation's existence and 1950, a large measure of social and economic intercourse relating to Indian tribal matters in the State of New York has been left to the State of New York through either the indifference or approval or express authorization of the federal executive officials who at a particular time had the responsibility for the care of the Indians. Despite this situation the Court of Appeals of New York has recognized that during all of this period, the Indians are and always have been, since the formation of this Government, the wards of the Nation and not of the States, and that the Federal Government has never relinquished its suzerainty over them.

13 In both criminal and civil fields Congress allowed the State laws to be extended onto the Reservations. However, in the act of September 13, 1950, 25 U.S.C.A. 233, granting to the courts of New York State jurisdiction in civil actions between Indians, there were specific exceptions, the first being that nothing therein contained shall be construed as subjecting the lands within Indian Reservations in the State of New York to taxation or subjecting them to execution on any judgment except a judgment by one tribal member against another as to use or possession of land; and second, 'That nothing herein contained shall be construed as authorizing the alienation from any Indian nation, tribe, or band of Indians of any lands within any Reservation in the State of New York; * * *.' This second exception was made the subject of comment in the Report of the Joint Legislative Committee on Indian Affairs to the Legislature of the State of New Yrok as follows:

14 'Neither would the proposed law permit taxation or alienation of reservation land, although many Indians have been led to believe that these are the very ends the bills aim to accomplish.

15 'Specific exclusion of the powers of taxation and disturbance of titles makes it clear that adoption of the bills would not end all Federal guardianship * * *.'

The Power Authority's License

16 The Power Authority claims to have derived its authority from a license issued to it pursuant to Public Law 85-159, 71 Stat. 401 which authorized and directed the Federal Power Commission to issue a license to the Power Authority for the construction and operation of a power project to utilize all of the United States' share of the water of the Niagara River permitted to be used by International agreement. Such a license was issued to the Power Authority although vigorously opposed by the Tuscarora. The Commission, however, did not pass on the eminent domain question because it expressly declared 'The question of whether the Licensee is empowered to acquire Intervener's land in eminent domain proceedings is, in our view, a question to be resolved by a court of competent jurisdiction. In any event, we are of the view that we are not required to render an advisory opinion on that question.' A petition for review of the Commission's order is presently pending before the Court of Appeals for the District of Columbia.

17 Under 4(e) of the Federal Power Act, 16 U.S.C.A. 797, the Commission is authorized to issue licenses for the purpose of constructing reservoirs and power houses, etc., even 'upon any part of the public lands and reservations of the United States' except that such a license 'shall be issued within any reservation only after a finding by the commission that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired, and shall be subject to and contain such conditions as the Secretary of the Department of Interior under whose supervision such reservation falls shall deem necessary for the adequate protection and utilization for such reservations:.'

18 The acquisition of property for the construction of reservoirs, etc., is implemented by 814 of the Federal Power Act which provides for the exercise by the licensee of the right of eminent domain. The section specifically provides for the manner in which this power may be exercised, namely, 'It may acquire the same by the exercise of the right of eminent domain in the district court of the United States for the district in which such land or other property may be located, or in the State courts. * * *'

19 The United States Guardianship of Indian Rights

20 Over the last one hundred and fifty years there have been many court decisions relating to the rights of Indians. Although each case was decided on the facts which gave rise to the controversy, there has been uniform support for the doctrine that the Indian tribes are wards of the United States and that a general guardianship power is vested in the United States to protect them and their property. This philosophy on the part of the courts has been expressed in various ways.


21 In the New York Court of Appeals, People ex rel. Cusick v. Daly, 1914, 212 N.Y. 183, 105 N.E. 1048, 1049, the court, after referring to the Supreme Court, decision in the Kagama case (United States v. Kagama, 1886, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228), which stressed the fact that the Reservation had been set apart by the United States said: 'But these were not the controlling elements in the decision, as will be seen from a perusal of the whole opinion, for the power of the federal authorities was asserted primarily because the Indian tribes in this country were, and always had been since the formation of the government, the wards of the nation and not of the states.' This case dealt specifically with the Tuscarora Indians. The court traced their history from their North Carolina days to their final Reservation in Niagara County, saying: 'Interesting as these facts may be to the student of history, they have little bearing upon the question to be decided. The truth is that we are dealing with dual relations growing out of peculiar conditions. The state of New York has enacted laws conferring upon these Indian tribes certain powers to regulate their own affairs, and to protect their lands from invasion (see Indian Law, Consol.Laws, Ch. 26), but the federal government has never relinquished its suzerainty over them.' The court further held that there was 'no less reason for placing them (the New York Indians) under the protectorate of the federal government then there was for extending it to the other tribes resident in any of the original 13 colonies' (212 N.Y. at page 192, 105 N.E. at page 1050). The court continued 'Congress has continued to act upon the theory that it has jurisdiction of our New York Indian tribes no less than of their brethren in the west' (212 N.Y. at page 193, 105 N.E. at page 1051). The conclusion of the court was that 'From this confusing history of federal and state legislation and judicial decisions upon matters affecting the relations of our governments to the Indians, it will be seen that the question is not free from doubt, but there are a few considerations which incline us to the view that the federal jurisdiction must prevail' (212 N.Y. at page 196, 105 N.E. at page 1052).

22 The Cusick case was followed by Mulkins v. Snow, 232 N.Y. 47, 133 N.E. 123, in which the court said 'They (the Indians) are the wards of the nation, and Congress has full authority to legislate for them within their reservation. People ex rel. Cusick v. Daly, 212 N.Y. 183, 105 N.E. 1048. When the state of New York legislates in relation to their affairs, its action is subject to the paramount authority of the federal government' (232 N.Y. at page 51, 133 N.E. at page 124).

23 In the Supreme Court of the United States this guardianship has been frequently restated. It was described in the Kagama case, supra (118 U.S. 375, 6 S.Ct. 1114), as follows:

24 'These Indian tribes are the wards of the nation. They are communities dependent on the United States,-- dependent largely for their daily food; dependent for their political rights. * * * From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them, and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the executive and by congress, and by this court, whenever the question has arisen.'

25 In United States v. Candelaria, 271 U.S. 432, 439, 46 S.Ct. 561, 562, 70 L.Ed. 1023, the court said:

26 "Not only does the Constitution expressly authorize Congress to regulate commerce with the Indian tribes, but long-continued legislative and executive usage and an unbroken current of judicial decisions have attributed to the United States as a superior and civilized nation the power and the duty of exercising a fostering care and protection over all dependent Indian communities within its borders, whether within its original territory or territory subsequently acquired, and whether within or without the limits of state. * * * 'It is for that body (Congress), and not for the courts, to determine when the true interests of the Indian require his release from such condition of tutelage."'

27 Not only has Congress not abandoned the field with respect to the property interests of Indian tribes in the State of New York but it has, by the enactment of the express reservation concerning land interests of the Indian tribes in New York in Title 25 U.S.C.A. 233, pointed up and reaffirmed its paramount authority over Indian tribal lands.

28 The primary question now to be decided is whether sections 177 and 233 of Title 25 U.S.C.A. prohibit the taking of any portion of the lands of the Tuscarora or whether the general power of the sovereign, namely, the United States, to take the lands of any of its subjects for appropriate public purposes, provided just compensation is paid, is paramount and impliedly written into all statutes affecting property.

29 A secondary question is, assuming that power of eminent domain exists, has it been exercised by the proper authority and in the manner prescribed by law?

30 Were the lands in question owned by citizens other than Indians, there would be no question but that the power of eminent domain could be exercised for the purposes of the power project. To create an exception it must be found that the Indians occupy some special status which renders them immune from the application of this principle. For many years their Reservations have been specially protected by law. They have practiced their own tribal customs and enjoyed their own way of life without too much outside interference. The present appropriation calls for the destruction of approximately one-third of the entire Reservation embraced within tract number 3. Unless there is some over-riding need or equity in others, the situation would seem to call for the exercise of that guardianship protection which the United States has asserted and exerted over the years.


31 On the other hand, as years go by there has been conscious effort to assimilate the Indians into the communities in which they live and to extend to them the same equal protection of the laws as all other citizens enjoy. This view is well exemplified in the Senate Report which preceded the passage of the civil jurisdiction bill in 1950 in which it was said that:

32 'Your committee believes that all citizens of a State should be parts of one social order; that anything which conflicts with this principle should be brought into confromity therewith at the earliest time consistent with justice; that the civil relationship and responsibility of all citizens within a State should be equal as well as just and under the jurisdiction of a common code of laws that govern all and protect all alike.' Sen.Rep. No. 1836, June 15, 1950.

33 If the Indians are to enjoy equal protection of the laws and all the other benefits extended to each citizen it may well be that they should bear some of the burdens including that of being subjected to having their lands condemned for public purposes, beneficial to the State in which they live.

34 The sovereign power of the United States is exercised by Congress and it would be anomalous indeed if this very power which could make its own land subject to condemnation (16 U.S.C.A. 797) could not be extended to the land of those over whom it exercises its guardianship. This power has been asserted from time to time as, for example, in the Reclamation Acts, the appropriation of vast areas in the mid-west for irrigation and other public projects. In Henkel v. United States, 237 U.S. 43, 49, 50, 35 S.Ct. 536, 539, 59 L.Ed. 831, the Supreme Court said:

35 'The authority of the Congress of the United States to devote these lands to irrigation purposes is unquestioned. As a matter of fact, it might, if it saw fit, remove the Indians therefrom and devote the land to such uses. Recognizing the injustice of arbitrary appropriations to other uses, no effort has been made to take these lands without compensation to the Indians for the improvements which they have made, and they have been given the right to select other lands in place of those released. The reclamation projects undertaken by the government are very extensive and cover many states; and they must involve in their construction, the flooding of lands in connection with dams designed to hold water for such purposes; and must necessarily include much territory which is included in Indian reservations. This situation was of course well known to Congress when it passed the Reclamation Act, and we cannot doubt, in view of the broad authority conferred by sections 7 and 10, above quoted, that it was the purpose of Congress to give the Secretary of the Interior the right to acquire such rights as are here involved, when necessary for reclamation purposes. In carrying out the purposes of the act, the Secretary of the Interior is authorized to acquire any rights or property necessary for that purpose, and to acquire the same either by purchase or by condemnation. He is specifically authorized to perform any and all acts necessary and proper for the purpose of carrying into effect the provisions of the act. Authority could hardly have been conferred in more comprehensive terms, and we do not believe it was the intention of Congress, because of the Indians' right of selection of lands under the circumstances here shown, to reserve such lands from the operation of the act. To do so might defeat the reclamation projects which it was evidently the purpose of Congress to authorize and promote. * * *'

36 The power of condemnation was also recognized in the passage of section 409a Title 25 U.S.C.A. which provides that 'Whenever any nontaxable land of a restricted Indian of the Five Civilized Tribes or of any other Indian tribe is sold to any State, county, or municipality for public-improvement purposes, or is acquired, under existing law, by any State, county, or municipality by condemnation or other proceedings for such public purposes, * * *' the proceeds therefrom may with the approval of the Secretary of the Interior be reinvested in other lands selected by the Indians and shall become restricted as to alienation and taxability as the lands condemned.

37 The court below came to the conclusion that 'There is no constitutional requirement that the appropriation now involved be specifically authorized by an act of Congress' and that neither sections 177 nor 233 of Title 25 U.S.C.A. presented any bar to the exercise of eminent domain. The wording of these two statutes does not, in our opinion, lead to such a conclusion. However, the same result is reached because the right of eminent domain of the United States is superior to, and could not have been extinguished by, the statutes in question. Of necessity, however, the exercise of this power must be by the United States through Congress.

38 This power may be found in the direction given to the Federal Power Commission to issue a license to the Power Authority (71 Stat. 401) and the right granted to a licensee to use the right of eminent domain. Appellant challenges this approach by arguing (1) that the Federal Power Commission cannot thus usurp the authority of Congress and (2) that any taking of Tuscarora property must be by special enactment directed to Tuscarora land. General acts, the Tuscarora say, will not suffice.

39 There is no question that Congress has the constitutional authority to take Indian Reservation or tribal lands by eminent domain. Cherokee Nation v. Southern Kansas Ry. Co., 135 U.S. 641, 10 S.Ct. 965, 34 L.Ed. 295. There remain to be determined whether in delegating its power of condemnation to the Power Authority, Congress expressly or impliedly intended to authorize the taking of Indian Reservation or tribal lands (as distinct from lands allotted to Indians in severalty, 25 U.S.C.A. 357); and whether in the course of its condemnation procedure the Power Authority complied with the pertinent provisions of the Federal Power Act.

40 Congress did not expressly authorize the taking of the appellant's land for the Niagara Power Project. Can it be inferred from the nature of the project and its proximity to the Reservation or from the impracticability of constructing it without taking a portion of the Tuscarora Reservation that Congress intended to authorize such a taking? Western Union Telegraph Co. v. Pennsylvania Railroad Co., 195 U.S. 540, 25 S.Ct. 133, 49 L.Ed. 312; Spalding v. Chandler, 1895, 160 U.S. 394, 16 S.Ct. 360, 40 L.Ed. 469; Seneca Nation of Indians v. Brucker, U.S. District Court, District of Columbia, Civil No. 2202-57, dated March 24, 1958 (unreported), and cases cited therein. Such an inference may properly be drawn when consideration is give to the size and extent of the Niagara Power Project.


41 The electric plant will have a capacity of 2,190,000 kilowatts, the largest hydroelectric plant in the United States, and will produce annually some 13,000,000,000 kilowatt hours of energy. To accomplish this result a large storage reservoir is essential for the efficient use of the available water supply.

42 The legislative history of the Niagara River Hydroelectric Power Project, 85th Congress, First Session, 1957, Vol. 2, U.S. Congressional and Administrative News, page 1585 et seq., shows that in the hearing before both Houses of Congress, the redevelopment plan contemplated 'a pump-storage plant at the top of Niagara escarpment 0.8 mile east of Lewiston, where water would be pumped during the night hours to a reservoir with surface area of 850 acres * * *.' While this acreage is less than that now sought to be taken, it may be assumed that Congress had general knowledge of the terrain and the pertinent area and that appellant's Reservation was in the vicinity and likely to be taken in part for the purposes of the project.

43 The direction to the Federal Power Commission was specific, namely, 'to issue a license to the Power Authority of the State of New York for the construction and operation of a power project with capacity to utilize all of the United States share of the water of the Niagara Power permitted to be used by International agreement.' The licensee by virtue of section 814 becomes vested with the governmental power of eminent domain. The exercise of the right is thus the act of an agency of the sovereign. But just as the grant is given by Congress it should be exercised in the manner prescribed by Congress which is either in the district court where the property is located or in the state courts. The appellees, although they started their condemnation proceedings in the State court, chose to abandon that method and proceeded under New York Public Authorities Law (specifically passed in 1958) and the New York Condemnation Law, McKinney's Consol. Laws, c. 73 giving the Power Authority the right to proceed by appropriation under section 30 of the New York Highway Law. If Congress had intended this procedure to be followed, section 814 instead of providing 'in the State courts' would have to read 'or in such manner as may be prescribed by the legislature of the state in which the property is located.' The specific 1958 legislation dealing with the Niagara River project enables the Power Authority to move in, appropriate the land and remove the owner before he has had a chance to have a judicial hearing. If Congress wishes this to be the method of eviction it should at least so declare in specific terms.

44 The final question is, what relief should be granted? The construction workers are on the borders of the Reservation ready to install power lines and cover the land with fill for the reservoir dikes. Nevertheless, aggressive construction activity should not be sufficient to nullify the protective policy of the Government towards the Indians or the laws calculated to enforce that policy. The Congressional concern, exhibited as recently as 1950, to except the two elements most carefully guarded by the Government, namely, tax exemption and alienation, from transfer to the civil jurisdictional powers of the State of New York is ample evidence that 'guardianship' still exists. If the Indians are no longer to be the wards of the United States such a change should be by Congressional enactment and not by court decision.

45 The court below dismissed the complaint thus preventing any relief by way of declaration of rights. This portion of the judgment should be reversed. Since the complaint seeks a declaration of rights we hold that the Power Authority of the State of New York as a licensee of the Federal Power Commission directed to issue a license pursuant to Public Law 85-159 (Act of August 21, 1957, 71 Stat. 401) is authorized to exercise the right of eminent domain according to the procedures specified in section 814 of the Federal Power Act (16 U.S.C.A. 814).

46 Pending the final determination of this action or any proceeding seeking to acquire the property in question, appellees are stayed from entering upon or damaging lands within the Tuscarora Reservation except that appellees shall have the right to conduct, and continue with, such activities on said property as have been excluded from the stays heretofore entered as amended from time to time.

47 The proceedings taken to appropriate the property in question by the filing of maps, notices or other documents pursuant to the Highway Law and the Public Authorities Law of the State of New York are vacated and annulled.

48 The District Court, in the event that the Power Authority desires to exercise its right of eminent domain in that court, is requested to expedite all proceedings as much as possible.

49 Insofar as the judgment appealed from dismisses the complaint and denies a stay it is reversed.

50 Insofar as the decision below holds that the Power Authority has the right to exercise eminent domain it is affirmed.

51 The cross-appeal with reference to the affidavit of Henry S. Manley is affirmed. It is sufficient that the material therein contained be received within the limitations fixed by the court below.

52 The judgment should be modified in accordance with this opinion. No costs.

53 On Petition by Appellant for Rehearing; and Motion by Appellees for Clarification or Modification of the Stay Provisions of this court's Judgment of July 24, 1958.

54 PER CURIAM.

55 The petition for rehearing is denied, and it is ordered that the mandate shall be issued six days after the date hereof.

56 Upon issuance of the mandate, the stay granted in the opinion of this court 'pending final determination of this action' will cease. Consequently after issuance of the mandate the answer to each of the three questions raised in the motion for clarification is 'No.'

57 SWAN, Circuit Judge (dissenting).

58 I disagree with the majority opinion only in its holding that condemnation by appropriation pursuant to the state statutes is not permissible under 21 of the Federal Power Act and the license issued by the Commission. In my opinion the judgment should be affirmed. The reasons which have led me to this conclusion have not been persuasive to my brothers, and I refrain from stating them here in order to avoid delaying the decision of the court.

No. 91
The People &c.,
Respondent,
v.
Neil Patterson, Jr.,
Appellant.

2005 NY Int. 99

June 14, 2005

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Christopher A. Amato, for appellant. Andrew D. Bing, for respondent.

ROSENBLATT, J.:

On this appeal, we consider whether the Treaty of Canandaigua of 1794 (7 Stat 44) vests members of the Tuscarora Nation with off-reservation fishing rights on former Seneca lands, the boundaries of which are demarcated by Article III of the Treaty. We hold that it does not.

I.
Defendant, Neil Patterson, is an enrolled member of the Tuscarora Indian Nation, one of the Six Nations of the Iroquois Confederacy. In February 2003, a State Environmental Conservation Officer saw him ice fishing in Wilson-Tuscarora State Park without an identifying tag on his ice fishing tip-up.[1] The park, located in Niagara County, is near the shore of Lake Ontario, outside the Tuscarora reservation, on former Seneca lands. The officer issued defendant a citation for violating 6 NYCRR 10.4-7, which provides that all "tip-ups must be marked with the name and address of the operator while . . . in the water."

Before the Town of Wilson Justice Court, defendant pleaded not guilty and requested a trial. The conservation officer prosecuted the case and testified that defendant's tip-up had no identification tag. Defendant responded that, under the Treaty of Canandaigua, he had a federally-protected treaty right to fish in Wilson-Tuscarora State Park and that, because section 10.4-7 does not represent a reasonable and necessary conservation measure, the State lacked the power to enforce the regulation against him. The court found defendant guilty and imposed a 25 dollar fine.

Defendant appealed to County Court, which affirmed. Relying on the United States Supreme Court's opinion in Federal Power Comm'n v Tuscarora Indians Nation (362 US 99 [1960]), the court determined that members of the Tuscarora Nation enjoy no treaty right to engage in off-reservation fishing on former Seneca lands. A Judge of this Court granted defendant leave to appeal, and we now affirm.

II.

It is basic to our system of governance that "all Treaties made . . . shall be the supreme Law of the Land" (US Const, art VI, cl 2).[2] This principle applies with full force to treaties with the Native American nations ( see Settler v Lameer, 507 F2d 231, 238 n16 [9th Cir 1974] ["The various Indian treaties constitute the Supreme Law of the Land"]). It is also fundamental that states have sovereign power to regulate hunting and fishing within their borders.[3]

In its "conservation necessity" line of cases, the United States Supreme Court has long experience in mediating between these two vying interests. In Tulee v State of Washington (315 US 681, 683-684 [1941]), the defendant, a member of the Yakima Nation, was charged with violating a state law requiring a license fee to catch salmon with a net, in spite of treaty language providing that the Yakima retained an "exclusive right of taking fish in all the streams, where running through or bordering said reservation." The treaty also secured the Yakima's right of "taking fish at all usual and accustomed places" ( id. at 683). The Supreme Court held that the state's attempt to impose a license fee on members of the Yakima was unconstitutional. Critical to the decision was the existence of a treaty fishing right in conflict with the state's regulatory scheme. The Court held that, in the face of this treaty right, the state retained only certain regulatory powers. It could impose on the Yakima, "equally with others such restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish" ( id.).

Similarly, in Puyallup Tribe v Department of Game of Washington (Puyallup I) (391 US 392 [1968]), the tribe had an off-reservation treaty right to take fish "at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory" ( id. at 395). In light of this treaty, the Supreme Court determined that a state regulation prohibiting fixed net fishing could not be enforced against members of the Puyallup Nation absent a finding that the ban represented a "'reasonable and necessary' conservation measure" ( id. at 402). It remanded for consideration of this question, as well as for findings on "the issue of equal protection implicit in the phrase 'in common with'" ( id. at 403; see also Department of Game of Washington v Puyallup Tribe [Puyallup II], 414 US 44 [1973]).

Echoing its opinion in Tulee, however, the Court emphasized that, confronted with a treaty off-reservation fishing right, the State may nevertheless regulate "the manner of fishing, the size of the take, . . . and the like. . . in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians" ( id. at 398). Most recently, in Antoine v Washington (420 US 194 [1975]), the Court held that, in regulating Native American off-reservation treaty fishing rights, the "State must demonstrate that its regulation is a reasonable and necessary conservation measure and that its application to the Indians is necessary in the interest of conservation" ( id. at 207 [internal citations omitted]).

Essentially, this line of cases stands for the proposition that a state law or regulation may impair an off- reservation treaty fishing right only when (1) it represents a reasonable and necessary conservation measure and (2) does not discriminate against the Native American treaty rightholders. The existence of, first, a treaty right and, second, a conflict between the treaty right and a state statute or regulation is the sine qua non of the Supreme Court's conservation necessity jurisprudence. Absent a treaty fishing right, the state enjoys the full run of its police powers in regulating off-reservation fishing.

Today, we hold that the Tuscarora -- and, derivatively, defendant -- have no right under the 1794 Treaty of Canandaigua to engage in off-reservation fishing on former Seneca lands.[4] Therefore, we need not consider whether 6 NYCRR 10.4-7 constitutes a reasonable and necessary conservation measure under Tulee and its progeny. The regulation may be applied to members of the Tuscarora fishing off-reservation, just as it applies to everyone else who ice fishes within the State. In reaching this result, we are influenced by the plain language of the Treaty of Canandaigua, along with the history of the land in question and the Supreme Court's opinion in Federal Power Comm'n v Tuscarora Indian Nation (362 US 99 [1960]).

Article III of the Treaty first demarcates the lands of the Seneca Nation. It then provides,

"Now, the United States acknowledge that all the land within the aforementioned boundaries, to be property of the Seneka nation; and the United States will never claim the same, nor disturb the Seneka nation, nor any of the Six Nations, or of their Indian friends residing thereon and united with them, in the free use and enjoyment thereof: but it shall remain theirs, until they choose to sell the same to the people of the United States, who have the right to purchase."

Article IV states that,

"The United States having thus described and acknowledged what lands belong to the Oneidas, Onondagas, Cayugas and Senekas, and engaged never to claim the same, nor disturb them, or any of the Six Nations, or their Indian friends residing thereon and united with them, in the free use and enjoyment thereof: Now, the Six Nations, and each of them, hereby engage that they will never claim any other lands within the boundary of the United States; nor ever disturb the people of the United States in the free use and enjoyment thereof."

In 1797, three years after signing the Treaty of Canandaigua, the Seneca surrendered their ownership of the land to the United States by the Treaty of Big Tree (7 Stat 601). Defendant argues, however, that the "free use and enjoyment" language in Articles III and IV grants the Tuscarora, as one of the Six Nations, a separate, usufructuary[5] fishing right on Seneca lands independent of the Seneca's possessory interest in the land. The Treaty of Canandaigua, he maintains, constitutes an official recognition of the Iroquois tradition of communal hunting and fishing rights for all members of the Six Nations throughout the territory of the Confederacy. We are sensitive to the historical customs and values of the Six Nations, but we are not persuaded by this reading of the Treaty. Although, as defendant claims, a treaty may provide for usufructuary fishing rights that survive the conveyance of the original possessor's title to the land ( see generally Minnesota v Mille Lacs Band of Chippewa Indians, 526 US 172 [1999]), the Treaty of Canandaigua does not create such a right.

We are mindful of the bedrock principle of Native American treaty interpretation that any possible ambiguities be resolved in favor of the Native American signatories ( see Worcester v State of Georgia, 31 US 515, 582 [1832]; Jones v Meehan, 175 US 1, 11 [1899]). We further appreciate that, where the scope of a treaty right is unclear, we must look "beyond the written words to the larger context that frames the [t]reaty, including 'the history of the treaty, the negotiations, and the practical construction adopted by the parties'" ( Mille Lacs, 526 US at 196). Articles III and IV, however, admit of no ambiguity. They clearly contemplate that the Seneca and the other Six Nations would have a right to free use and enjoyment of Seneca land until such time as the Seneca ceded it to "the people of the United States." In short, the Tuscarora Nation's fishing rights on the land in question were wholly contingent on continued ownership of the land by the Seneca. When the Seneca divested themselves of their interest in the land by the Treaty of Big Tree of 1797, the Tuscarora right to free use and enjoyment ended.[6]

The Supreme Court's opinion in Federal Power Comm'n v Tuscarora Indians Nation (362 US 99 [1960]) confirms this view. As relevant here, that case addressed the question whether the New York State Power Authority could, pursuant to the Federal Power Act (16 USC § 796, et seq), use eminent domain to seize off-reservation land owned by the Tuscarora in fee simple for use in a hydroelectric dam project. Among other things, the Tuscarora argued that their land, which was situated within the same former Seneca tract as Wilson-Tuscarora State Park, was protected from condemnation by the Treaty of Canandaigua.

In footnote 18 of its opinion, the Supreme Court rejected the Tuscarora's claim. The Court concluded, as do we, that the Treaty of Canandaigua covers the lands in question. Nevertheless, it determined that by conveying these lands pursuant to the Treaty of Big Tree of 1797, the Seneca "freed them from the effects of the Treaty of Canandaigua of 1794" ( id. at 121 n18). Tracing the history of Tuscarora migration to the Niagara frontier, the Court explained that the Tuscarora interest in the Seneca lands was contingent on Seneca beneficence. The Tuscarora tenure on Seneca lands was, the Court observed, as "guests or tenants at will or by sufferance" ( id.).

The Treaty of Canandaigua did not transform the Tuscarora's status on Seneca lands: "[b]y the Treaty of Canandaigua of 1794 . . . it was recognized that the Senecas alone had possessory rights to the western New York area here involved" ( id.). Moreover, any treaty interest the Tuscarora had in Seneca land was terminated by the Treaty of Big Tree of 1797, which, the Supreme Court determined, swept away any Tuscarora treaty rights to lands in Western New York. "[T]he lands in question," the Court noted, "were entirely freed from the effects of all then existing treaties with the Indians" ( id.). Since the Treaty of Big Tree, the former Seneca lands have "never since been subject to any treaty between the United States and the Tuscaroras" ( id.).

Both the Supreme Court's thorough treatment of the subject and our own study of the pertinent language satisfy us that the Tuscarora enjoy no right under the Treaty of Canandaigua to free use and enjoyment of former Seneca lands. Defendant's other contentions are without merit.

Accordingly, the order of County Court should be affirmed. Order affirmed. Opinion by Judge Rosenblatt. Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.

Decided June 14, 2005


Footnotes

1 A tip-up is a device, designed to be left unattended, that supports a fishing line suspended through a hole in the ice. When a fish takes the bait, it triggers a flag or other signal to alert the ice fisher.

2 See also Missouri v Holland (252 US 416 [1920] ["No doubt the great body of private relations usually fall within the control of the State, but a treaty may override its power"]).

3 See Lacoste v Dept of Conservation of State of Louisiana (263 US 545, 549 [1924] ["The wild animals within its borders are, so far as capable of ownership, owned by the state in its sovereign capacity for the common benefit of all of its people. Because of such ownership, and in the exercise of its police power the state may regulate and control the taking, subsequent use and property rights that may be acquired therein"]).

4 Defendant argues that his invocation of "conservation necessity" doctrine represents a challenge to the jurisdiction of New York courts and that the courts below wrongly treated it as a defense of justification pursuant to Penal Law § 35.05 1) ("conduct which would otherwise constitute an offense is justifiable and not criminal when. . . [s]uch conduct is required or authorized by law"). We need not consider this question. Neither a jurisdictional challenge nor a justification defense can be premised on a nonexistent treaty right.

5 A usufructuary right is a right to "use and enjoy the fruits of another's property for a period without damaging or diminishing it" (Black's Law Dictionary 1580 [8th ed 2004]).

6 The terms of the 1797 Treaty of Big Tree, which followed the Treaty of Canandaigua by three years, suggest that the express reservation of usufructuary fishing rights was not outside the ken of Native American negotiators in the 1790s. In the Treaty of Big Tree, the Seneca retained for themselves the "privilege of fishing and hunting on the said tract of land hereby intended to be conveyed."

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FEDERAL POWER COMMISSION V. TUSCARORA INDIAN NATION 362 U.S. 99

NO. 63. ARGUED DECEMBER 7, 1959 - DECIDED MARCH 7, 1960* - 105 U.S. APP. D.C. 146, 265 F.2D 338, REVERSED.

*TOGETHER WITH NO. 66, POWER AUTHORITY OF THE STATE OF NEW YORK V. TUSCARORA INDIAN NATION, ALSO ON CERTIORARI TO THE SAME COURT.

UNDER SEC. 21 OF THE FEDERAL POWER ACT, CERTAIN LANDS PURCHASED AND OWNED IN FEE SIMPLE BY THE TUSCARORA INDIAN NATION AND LYING ADJACENT TO A NATURAL POWER SITE ON THE NIAGARA RIVER MAY BE TAKEN FOR THE STORAGE RESERVOIR OF A HYDROELECTRIC POWER PROJECT, UPON PAYMENT OF JUST COMPENSATION, BY THE POWER AUTHORITY OF THE STATE OF NEW YORK UNDER A LICENSE ISSUED TO IT BY THE FEDERAL POWER COMMISSION AS DIRECTED BY CONGRESS IN THE ACT OF AUGUST 21, 1957, 71 STAT. 401. PP. 100-124.

(1) INASMUCH AS THE LANDS HERE INVOLVED ARE OWNED IN FEE SIMPLE BY THE TUSCARORA INDIAN NATION AND NO "INTEREST" IN THEM IS "OWNED BY THE UNITED STATES," THEY ARE NOT WITHIN A "RESERVATION," AS THAT TERM IS DEFINED IN SEC. 3(2) OF THE FEDERAL POWER ACT, AND, THEREFORE, A COMMISSION FINDING UNDER SEC. 4(E) "THAT THE LICENSE WILL NOT INTERFERE OR BE INCONSISTENT WITH THE PURPOSE FOR WHICH SUCH RESERVATION WAS CREATED OR ACQUIRED" IS NOT NECESSARY TO THE ISSUANCE OF A LICENSE EMBRACING THE LANDS IN QUESTION. PP. 110-115.

(2) BY THE BROAD GENERAL TERMS OF SEC. 21 OF THE FEDERAL POWER ACT, CONGRESS HAS AUTHORIZED THE FEDERAL POWER COMMISSION'S LICENSEES TO TAKE LANDS OWNED BY INDIANS, AS WELL AS THOSE OF ALL OTHER CITIZENS, WHEN NEEDED FOR A LICENSED PROJECT, UPON PAYMENT OF JUST COMPENSATION; THE LANDS IN QUESTION ARE NOT SUBJECT TO ANY TREATY BETWEEN THE UNITED STATES AND THE TUSCARORA INDIAN NATION; AND 25 U.S.C. SEC. 177, FORBIDDING A TRANSFER OF LANDS FROM INDIANS UNLESS MADE BY A TREATY OR CONVENTION ENTERED INTO PURSUANT TO THE CONSTITUTION, DOES NOT APPLY TO THE UNITED STATES ITSELF NOR PROHIBIT IT OR ITS LICENSEES UNDER THE FEDERAL POWER ACT FROM TAKING SUCH LANDS IN THE MANNER PROVIDED BY SEC. 21, UPON PAYMENT OF JUST COMPENSATION. PP. 115-124.

FEDERAL POWER COMMISSION V. TUSCARORA INDIAN NATION.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT.

THE ULTIMATE QUESTION PRESENTED BY THESE CASES IS WHETHER CERTAIN LANDS, PURCHASED AND OWNED IN FEE SIMPLE BY THE TUSCARORA INDIAN NATION AND LYING ADJACENT TO A NATURAL POWER SITE ON THE NIAGARA RIVER NEAR THE TOWN OF LEWISTON, NEW YORK, MAY BE TAKEN FOR THE STORAGE RESERVOIR OF A HYDROELECTRIC POWER PROJECT, UPON THE PAYMENT OF JUST COMPENSATION, BY THE POWER AUTHORITY OF THE STATE OF NEW YORK UNDER A LICENSE ISSUED TO IT BY THE FEDERAL POWER COMMISSION AS DIRECTED BY CONGRESS IN PUBLIC LAW 85-159, APPROVED AUGUST 21, 1957, 71 STAT. 401.

THE NIAGARA RIVER, AN INTERNATIONAL BOUNDARY STREAM AND A NAVIGABLE WATERWAY OF THE UNITED STATES, FLOWS FROM LAKE ERIE TO LAKE ONTARIO, A DISTANCE OF 36 MILES. ITS MEAN FLOW IS ABOUT 200,000 CUBIC FEET PER SECOND. THE RIVER DROPS ABOUT 165 FEET AT NIAGARA FALLS AND AN ADDITIONAL 140 FEET IN THE RAPIDS IMMEDIATELY ABOVE AND BELOW THE FALLS. THE "HEAD" CREATED BY THESE GREAT FALLS, COMBINED WITH THE LARGE AND STEADY FLOW OF THE RIVER, MAKES THE LEWISTON POWER SITE, LOCATED BELOW THE RAPIDS, AN EXTREMELY FAVORABLE ONE FOR HYDROELECTRIC DEVELOPMENT.

FOR THE PURPOSE OF AVOIDING "CONTINUING WASTE OF A GREAT NATURAL RESOURCE AND TO MAKE IT POSSIBLE FOR THE UNITED STATES OF AMERICA AND CANADA TO DEVELOP, FOR THE BENEFIT OF THEIR RESPECTIVE PEOPLES, EQUAL SHARES OF THE WATERS OF THE NIAGARA RIVER AVAILABLE FOR POWER PURPOSES," THE UNITED STATES AND CANADA ENTERED INTO THE TREATY OF FEBRUARY 27, 1950, (FN1) PROVIDING FOR A FLOW OF 100,000 CUBIC FEET PER SECOND OVER NIAGARA FALLS DURING CERTAIN SPECIFIED DAYTIME AND EVENING HOURS OF THE TOURIST SEASON (APRIL 1 TO OCTOBER 31) AND OF 50,000 CUBIC FEET PER SECOND AT OTHER TIMES, AND AUTHORIZING THE EQUAL DIVISION BY THE UNITED STATES AND CANADA OF ALL EXCESS WATERS FOR POWER PURPOSES. (FN2)

IN CONSENTING TO THE 1950 TREATY, THE SENATE IMPOSED THE CONDITION THAT "NO PROJECT FOR REDEVELOPMENT OF THE UNITES STATES' SHARE OF SUCH WATERS SHALL BE UNDERTAKEN UNTIL IT BE SPECIFICALLY AUTHORIZED BY ACT OF CONGRESS." 1 U.S.T. 694, 699. TO THAT END, A STUDY WAS MADE AND REPORTED TO CONGRESS IN 1951 BY THE UNITED STATES ARMY CORPS OF ENGINEERS RESPECTING THE MOST FEASIBLE PLANS FOR UTILIZING ALL OF THE WATERS AVAILABLE TO THE UNITED STATES UNDER THE 1950 TREATY, AND DETAILED PLANS EMBODYING OTHER STUDIES WERE PREPARED AND SUBMITTED TO CONGRESS PRIOR TO JUNE 7, 1956, BY THE BUREAU OF POWER OF THE FEDERAL POWER COMMISSION, THE POWER AUTHORITY OF NEW YORK, AND THE NIAGARA MOHAWK POWER CORPORATION. (FN3) TO ENABLE UTILIZATION OF ALL OF THE UNITED STATES' SHARE OF THE NIAGARA WATERS BY AVOIDING WASTE OF THE NIGHTTIME AND WEEK-END FLOW THAT WOULD NOT BE NEEDED AT THOSE TIMES FOR THE GENERATION OF POWER, ALL OF THE STUDIES AND PLANS PROVIDED FOR A PUMPING-GENERATING PLANT TO LIFT THOSE WATERS AT THOSE TIMES INTO A RESERVOIR, AND FOR A STORAGE RESERVOIR TO CONTAIN THEM UNTIL RELEASED FOR USE - THROUGH THE PUMPING-GENERATING PLANT, WHEN ITS MOTORS (OPERATING IN REVERSE) WOULD SERVE AS GENERATORS - DURING THE DAYTIME HOURS WHEN THE DEMAND FOR POWER WOULD BE HIGHEST AND THE DIVERSION OF WATERS FROM THE RIVER WOULD BE MOST RESTRICTED BY THE TREATY. ESTIMATES OF DEPENDABLE CAPACITY OF THE SEVERAL RECOMMENDED PROJECTS VARIED FROM 1,240,000 TO 1,723,000 KILOWATTS, AND ESTIMATES OF THE NEEDED RESERVOIR CAPACITY VARIED FROM 22,000 ACRE-FEET COVERING 850 ACRES TO 41,000 ACRE-FEET COVERING 1,700 ACRES. THE VARIATIONS IN THESE ESTIMATES WERE LARGELY DUE TO DIFFERING ASSUMPTIONS AS TO THE LENGTH OF THE DAILY PERIOD OF PEAK DEMAND.

ALTHOUGH THERE WAS "NO CONTROVERSY AS TO THE MOST DESIRABLE ENGINEERING PLAN OF DEVELOPMENT," (FN4) THERE WAS SERIOUS DISAGREEMENT IN CONGRESS OVER WHETHER THE PROJECT SHOULD BE PUBLICLY OR PRIVATELY DEVELOPED AND OVER MARKETING PREFERENCES AND OTHER MATTERS OF POLICY. THAT DISAGREEMENT CONTINUED THROUGH EIGHT SESSIONS OF COMMITTEE HEARINGS, DURING WHICH MORE THAN 30 PROPOSED BILLS WERE CONSIDERED, IN THE EIGHTY-FIRST TO EIGHTY-FIFTH CONGRESSES, (FN5) AND DELAYED CONGRESSIONAL AUTHORIZATION OF THE PROJECT FOR SEVEN YEARS.

ON JUNE 7, 1956, A ROCK SLIDE DESTROYED THE SCHOELLKOPF PLANT. (FN6) THIS CREATED A CRITICAL SHORTAGE OF ELECTRIC POWER IN THE NIAGARA COMMUNITY. IT ALSO REQUIRED EXPANSION OF THE PLANS FOR THE NIAGARA PROJECT IF THE 20,000 CUBIC FEET PER SECOND OF WATER THAT HAD BEEN RESERVED FOR THE SCHOELLKOPF PLANT WAS TO BE UTILIZED. ACCORDINGLY, THE POWER AUTHORITY OF NEW YORK PREPARED AND SUBMITTED TO CONGRESS A MAJOR REVISION OF THE PROJECT PLANS. THOSE REVISED PLANS, DESIGNED TO UTILIZE ALL OF THE NIAGARA WATERS AVAILABLE TO THE UNITED STATES UNDER THE 1950 TREATY, PROVIDED FOR AN INSTALLED CAPACITY OF 2,190,000 KILOWATTS, OF WHICH 1,800,000 KILOWATTS WOULD BE DEPENDABLE POWER FOR 17 HOURS PER DAY, NECESSITATING A STORAGE RESERVOIR OF 60,000 ACRE-FEET CAPACITY COVERING ABOUT 2,800 ACRES. (FN7)

CONFRONTED WITH THE DESTRUCTION OF THE SCHOELLKOPF PLANT AND THE CONSEQUENT CRITICAL NEED FOR ELECTRIC POWER IN THE NIAGARA COMMUNITY, CONGRESS SPEEDILY COMPOSED ITS DIFFERENCES IN THE MANNER AND TERMS PRESCRIBED IN PUBLIC LAW 85-159, APPROVED AUGUST 21, 1957. 71 STAT. 401. BY SEC. 1(A) OF THAT ACT, CONGRESS "EXPRESSLY AUTHORIZED AND DIRECTED" THE FEDERAL POWER COMMISSION "TO ISSUE A LICENSE TO THE POWER AUTHORITY OF THE STATE OF NEW YORK FOR THE CONSTRUCTION AND OPERATION OF A POWER PROJECT WITH CAPACITY TO UTILIZE ALL OF THE UNITED STATES SHARE OF THE WATER OF THE NIAGARA RIVER PERMITTED TO BE USED BY INTERNATIONAL AGREEMENT." BY SEC. 1(B) OF THE ACT, THE FEDERAL POWER COMMISSION WAS DIRECTED TO "INCLUDE AMONG THE LICENSING CONDITIONS, IN ADDITION TO THOSE DEEMED NECESSARY AND REQUIRED UNDER THE TERMS OF THE FEDERAL POWER ACT," SEVEN CONDITIONS WHICH ARE OF ONLY COLLATERAL IMPORTANCE HERE. (FN8) THE CONCLUDING SECTION OF THE ACT, SEC. 2, PROVIDES: "THE LICENSE ISSUED UNDER THE TERMS OF THIS ACT SHALL BE GRANTED IN CONFORMANCE WITH RULES OF PRACTICE AND PROCEDURE OF THE FEDERAL POWER COMMISSION, BUT IN THE EVENT OF ANY CONFLICT, THE PROVISIONS OF THIS ACT SHALL GOVERN IN RESPECT OF THE PROJECT HEREIN AUTHORIZED."

THEREAFTER, THE POWER AUTHORITY OF THE STATE OF NEW YORK, A MUNICIPAL CORPORATION CREATED UNDER THE LAWS OF THAT STATE TO DEVELOP THE ST. LAWRENCE AND NIAGARA POWER PROJECTS, APPLIED TO THE FEDERAL POWER COMMISSION FOR THE PROJECT LICENSE WHICH CONGRESS HAD THUS DIRECTED THE COMMISSION TO ISSUE TO IT. ITS APPLICATION EMBRACED THE PROJECT PLANS THAT IT HAD SUBMITTED TO THE EIGHTY-FIFTH CONGRESS SHORTLY BEFORE ITS APPROVAL OF PUBLIC LAW 85-159. (FN9) THE PROJECT WAS SCHEDULED TO BE COMPLETED IN 1963 AT AN ESTIMATED COST OF $720,000,000.

HEARINGS WERE SCHEDULED BY THE COMMISSION, OF WHICH DUE NOTICE WAS GIVEN TO ALL INTERESTED PARTIES, INCLUDING THE TUSCARORA INDIAN NATION, INASMUCH AS THE APPLICATION CONTEMPLATED THE TAKING OF SOME OF ITS LANDS FOR THE RESERVOIR. THE TUSCARORA INDIAN NATION INTERVENED AND OBJECTED TO THE TAKING OF ANY OF ITS LANDS UPON THE GROUND "THAT THE APPLICANT LACKS AUTHORITY TO ACQUIRE THEM." AT THE HEARINGS, IT WAS SHOWN THAT THE TUSCARORA LANDS NEEDED FOR THE RESERVOIR - THEN THOUGHT TO BE ABOUT 1,000 ACRES - ARE PART OF A SEPARATE TRACT OF 4,329 ACRES PURCHASED IN FEE SIMPLE BY THE TUSCARORA INDIAN NATION, WITH THE ASSISTANCE OF HENRY DEARBORN, THEN SECRETARY OF WAR, FROM THE HOLLAND LAND COMPANY ON NOVEMBER 21, 1804, WITH THE PROCEEDS DERIVED FROM THE CONTEMPORANEOUS SALE OF THEIR LANDS IN NORTH CAROLINA - FROM WHICH THEY HAD REMOVED IN ABOUT THE YEAR 1775 TO RESIDE WITH THE ONEIDAS IN CENTRAL NEW YORK. (FN10)

AFTER CONCLUDING THE HEARINGS, THE COMMISSION, ON JANUARY 30, 1958, ISSUED ITS ORDER GRANTING THE LICENSE. IT FOUND THAT A RESERVOIR HAVING A USABLE STORAGE CAPACITY OF 60,000 ACRE-FEET "IS REQUIRED TO PROPERLY UTILIZE THE WATER RESOURCES INVOLVED." ALTHOUGH THE COMMISSION FOUND THAT THE INDIAN LANDS "ARE ALMOST ENTIRELY UNDEVELOPED EXCEPT FOR AGRICULTURAL USE," IT DID NOT PASS UPON THE TUSCARORAS' OBJECTION TO THE TAKING OF THEIR LANDS BECAUSE IT THEN ASSUMED THAT "OTHER LANDS ARE AVAILABLE FOR RESERVOIR USE IF THE APPLICANT IS UNABLE TO ACQUIRE THE INDIAN LANDS." BUT THE COMMISSION DID DIRECT THE LICENSEE TO REVISE ITS EXHIBIT COVERING THE RESERVOIR, TO MORE DEFINITELY SHOW THE AREA AND ACREAGE INVOLVED, AND TO RESUBMIT IT TO THE COMMISSION FOR APPROVAL WITHIN A STATED TIME.

IN ITS APPLICATION FOR REHEARING, THE TUSCARORA INDIAN NATION CONTENDED, AMONG OTHER THINGS, THAT THE PORTION OF ITS LANDS SOUGHT TO BE TAKEN FOR THE RESERVOIR WAS PART OF A "RESERVATION," AS DEFINED IN SEC. 3(2), AND AS USED IN SEC. 4(E), OF THE FEDERAL POWER ACT, (FN11) AND THEREFORE COULD NOT LAWFULLY BE TAKEN FOR RESERVOIR PURPOSES IN THE ABSENCE OF A FINDING BY THE COMMISSION "THAT THE LICENSE WILL NOT INTERFERE OR BE INCONSISTENT WITH THE PURPOSE FOR WHICH SUCH RESERVATION WAS CREATED OR ACQUIRED." BY ITS ORDER OF MARCH 21, 1958, DENYING THAT APPLICATION FOR REHEARING, THE COMMISSION FOUND THAT "THE BEST LOCATION OF THE RESERVOIR WOULD REQUIRE APPROXIMATELY 1,000 ACRES OF LAND OWNED BY INTERVENER," AND IT HELD THAT THE INDIAN LANDS INVOLVED "ARE NOT PART OF A 'RESERVATION' REFERRED TO IN SECTION 4(E) AS DEFINED IN SECTION 3(2) OF THE FEDERAL POWER ACT AND THE FINDING SUGGESTED BY INTERVENER IS NOT REQUIRED." ON MAY 5, 1958, THE COMMISSION ISSUED ITS ORDER APPROVING THE LICENSEE'S REVISED EXHIBIT WHICH PRECISELY DELINEATED THE LOCATION, AREA, AND ACREAGE TO BE EMBRACED BY THE RESERVOIR - WHICH INCLUDED 1,383 ACRES OF THE TUSCARORAS' LANDS.

ON MAY 16, 1958, THE TUSCARORA INDIAN NATION FILED A PETITION FOR REVIEW IN THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT CHALLENGING THE LICENSE ISSUED BY THE COMMISSION ON JANUARY 30, 1958, INSOFAR AS IT WOULD AUTHORIZE THE TAKING OF TUSCARORA LANDS. (FN12) BY ITS OPINION AND INTERIM JUDGMENT OF NOVEMBER 14, 1958, THE COURT OF APPEALS HELD THAT THE TUSCARORA LANDS SOUGHT TO BE TAKEN FOR THE RESERVOIR CONSTITUTE A PART OF A "RESERVATION" WITHIN THE MEANING OF SECS. 3(2) AND 4(E) OF THE FEDERAL POWER ACT, AND THAT THE COMMISSION MAY NOT INCLUDE THOSE LANDS IN THE LICENSE IN THE ABSENCE OF A SEC. 4(E) FINDING THAT THEIR TAKING "WILL NOT INTERFERE OR BE INCONSISTENT WITH THE PURPOSE FOR WHICH SUCH RESERVATION WAS CREATED OR ACQUIRED," AND THE COURT REMANDED THE CASE TO THE COMMISSION THAT IT MIGHT "EXPLORE THE POSSIBILITY OF MAKING THAT FINDING." 105 U.S. APP. D.C. 146, 265 F.2D 338.

UPON REMAND, THE COMMISSION HELD EXTENSIVE HEARINGS, EXPLORING NOT ONLY THE MATTER OF THE MAKING OF THE FINDING HELD NECESSARY BY THE COURT OF APPEALS BUT ALSO THE POSSIBILITY OF LOCATING THE RESERVOIR ON OTHER LANDS. IN ITS ORDER OF FEBRUARY 2, 1959, THE COMMISSION FOUND THAT THE USE OF OTHER LANDS FOR THE RESERVOIR WOULD RESULT IN GREAT DELAY, SEVERE COMMUNITY DISRUPTION, AND UNREASONABLE EXPENSE; THAT A RESERVOIR WITH USABLE STORAGE CAPACITY OF 60,000 ACRE-FEET IS REQUIRED TO UTILIZE ALL OF THE UNITED STATES' SHARE OF THE WATER OF THE NIAGARA RIVER, AS REQUIRED BY PUBLIC LAW 85-159; THAT REMOVAL OF THE RESERVOIR FROM THE TUSCARORA LANDS BY REDUCING THE AREA OF THE RESERVOIR WOULD REDUCE THE USABLE STORAGE CAPACITY FROM 60,000 ACRE-FEET TO 30,000 ACRE FEET AND RESULT IN A LOSS OF ABOUT 300,000 KILOWATTS OF DEPENDABLE CAPACITY. BUT IT CONCLUDED THAT, ALTHOUGH OTHER LANDS CONTIGUOUS TO THEIR RESERVATION MIGHT BE ACQUIRED BY THE TUSCARORAS, (FN13) THE TAKING OF THE 1,383 ACRES OF TUSCARORA LANDS FOR THE RESERVOIR "WOULD INTERFERE AND WOULD BE INCONSISTENT WITH THE PURPOSE FOR WHICH THE RESERVATION WAS CREATED OR ACQUIRED." THAT ORDER WAS TRANSMITTED TO THE COURT OF APPEALS WHICH, ON MARCH 24, 1959, AFTER CONSIDERING VARIOUS MOTIONS OF THE PARTIES, ENTERED ITS FINAL JUDGMENT APPROVING THE LICENSE EXCEPT INSOFAR AS IT WOULD AUTHORIZE THE TAKING OF TUSCARORA LANDS FOR THE RESERVOIR, AND REMANDED THE CASE TO THE COMMISSION WITH INSTRUCTIONS TO AMEND THE LICENSE "TO EXCLUDE SPECIFICALLY THE POWER OF THE SAID POWER AUTHORITY TO CONDEMN THE SAID LANDS OF THE TUSCARORA INDIANS FOR RESERVOIR PURPOSES." 105 U.S. APP. D.C., AT 152, 265 F.2D, AT 344.

BECAUSE OF CONFLICT BETWEEN THE VIEWS OF THE COURT BELOW AND THOSE OF THE SECOND CIRCUIT, AND OF THE GENERAL IMPORTANCE OF THE QUESTIONS INVOLVED, WE GRANTED CERTIORARI. 360 U.S. 915.

THE PARTIES HAVE URGED UPON US A NUMBER OF CONTENTIONS, BUT WE THINK THESE CASES TURN UPON THE ANSWERS TO TWO QUESTIONS, NAMELY, (1) WHETHER THE TUSCARORA LANDS COVERED BY THE COMMISSION'S LICENSE ARE PART OF A "RESERVATION" AS DEFINED AND USED IN THE FEDERAL POWER ACT, 16 U.S.C. SEC. 791A ET SEQ., AND, IF NOT, (2) WHETHER THOSE LANDS MAY BE CONDEMNED BY THE LICENSEE, UNDER THE EMINENT DOMAIN POWERS CONFERRED BY SEC. 21 OF THE FEDERAL POWER ACT, 16 U.S.C. SEC. 814. WE NOW TURN TO A CONSIDERATION OF THOSE QUESTIONS IN THE ORDER STATED.


I.

A COMMISSION FINDING THAT "THE LICENSE WILL NOT INTERFERE OR BE INCONSISTENT WITH THE PURPOSE FOR WHICH SUCH RESERVATION WAS CREATED OR ACQUIRED" IS REQUIRED BY SEC. 4(E) OF THE FEDERAL POWER ACT, 16 U.S.C. SEC. 797(E), ONLY IF THE LANDS INVOLVED ARE WITHIN A "RESERVATION" IN THE SENSE OF THAT TERM AS DEFINED AND USED IN THAT ACT. THAT BY GENERALLY ACCEPTED STANDARDS AND COMMON UNDERSTANDING THESE TUSCARORA LANDS MAY BE PART OF A "RESERVATION" IS NOT AT ALL DECISIVE OF WHETHER THEY ARE SUCH WITHIN THE MEANING OF THE FEDERAL POWER ACT. CONGRESS WAS FREE AND COMPETENT ARTIFICIALLY TO DEFINE THE TERM "RESERVATIONS" FOR THE PURPOSES IT PRESCRIBED IN THAT ACT. AND WE ARE BOUND TO GIVE EFFECT TO ITS DEFINITION OF THAT TERM, FOR IT WOULD BE IDLE FOR CONGRESS TO DEFINE THE SENSE IN WHICH IT USED IT "IF WE WERE FREE IN DESPITE OF IT TO CHOOSE A MEANING FOR OURSELVES." FOX V. STANDARD OIL CO., 294 U.S. 87, 96. BY SEC. 3(2) OF THE FEDERAL POWER ACT, 16 U.S.C. SEC. 796(2), CONGRESS HAS PROVIDED:

"SEC. 3. THE WORDS DEFINED IN THIS SECTION SHALL HAVE THE FOLLOWING MEANINGS FOR PURPOSES OF THIS ACT, TO WIT:

* * * * *

"(2) 'RESERVATIONS' MEANS NATIONAL FORESTS, TRIBAL LANDS EMBRACED WITHIN INDIAN RESERVATIONS, MILITARY RESERVATIONS, AND OTHER LANDS AND INTERESTS IN LANDS OWNED BY THE UNITED STATES, AND WITHDRAWN, RESERVED, OR WITHHELD FROM PRIVATE APPROPRIATION AND DISPOSAL UNDER THE PUBLIC LAND LAWS; ALSO LANDS AND INTERESTS IN LANDS ACQUIRED AND HELD FOR ANY PUBLIC PURPOSE; BUT SHALL NOT INCLUDE NATIONAL MONUMENTS OR NATIONAL PARKS."

THE PLAIN WORDS OF THIS DEFINITION SEEM RATHER CLEARLY TO SHOW THAT CONGRESS INTENDED THE TERM "RESERVATIONS," WHEREVER USED IN THE ACT, TO EMBRACE ONLY "LANDS AND INTERESTS IN LANDS OWNED BY THE UNITED STATES."

TURNING TO THE DEFINITION'S LEGISLATIVE HISTORY, WE FIND THAT IT, TOO, STRONGLY INDICATES THAT SUCH WAS THE CONGRESSIONAL INTENTION. IN THE ORIGINAL DRAFT BILL OF THE FEDERAL WATER POWER ACT OF 1920, AS PROPOSED BY THE ADMINISTRATION AND PASSED BY THE HOUSE IN THE SIXTY FIFTH AND SIXTY-SIXTH CONGRESSES, THE TERM WAS DEFINED AS FOLLOWS:

"'RESERVATIONS' MEANS LANDS AND INTEREST IN LANDS OWNED BY THE UNITED STATES AND WITHDRAWN, RESERVED, OR WITHHELD FROM PRIVATE APPROPRIATION AND DISPOSAL UNDER THE PUBLIC-LAND LAWS, AND LANDS AND INTEREST IN LANDS ACQUIRED AND HELD FOR ANY PUBLIC PURPOSE." (FN14)

IT IS DIFFICULT TO PERCEIVE HOW CONGRESSIONAL INTENTION COULD BE MORE CLEARLY AND DEFINITELY EXPRESSED. HOWEVER, AFTER THE BILL REACHED THE SENATE IT INSERTED THE WORDS "NATIONAL MONUMENTS, NATIONAL PARKS, NATIONAL FORESTS, TRIBAL LANDS EMBRACED WITHIN INDIAN RESERVATIONS, MILITARY RESERVATIONS, AND OTHER" AT THE BEGINNING OF THE DEFINITION. (FN15) WHEN THE BILL WAS RETURNED TO THE HOUSE IT WAS EXPLAINED THAT THE SENATE'S "AMENDMENT RECASTS THE HOUSE DEFINITION OF 'RESERVATIONS.'" (FN16) THE BILL AS ENACTED CONTAINED THE DEFINITION AS THUS RECAST. IT REMAINS IN THAT FORM, EXCEPT FOR THE DELETION OF THE WORDS "NATIONAL MONUMENTS, NATIONAL PARKS," WHICH WAS OCCASIONED BY THE ACT OF MARCH 3, 1921 (41 STAT. 1353), NEGATING COMMISSION AUTHORITY TO LICENSE ANY PROJECT WORKS WITHIN "NATIONAL MONUMENTS OR NATIONAL PARKS," AND THOSE WORDS WERE FINALLY DELETED FROM THE DEFINITION BY AMENDMENT IN 1935. 49 STAT. 838. IT SEEMS ENTIRELY CLEAR THAT NO CHANGE IN SUBSTANCE WAS INTENDED OR EFFECTED BY THE SENATE'S AMENDMENT, AND THAT ITS "RECASTING" ONLY SPECIFIED, AS ILLUSTRATIVE, SOME OF THE "RESERVATIONS" ON "LANDS AND INTERESTS IN LANDS OWNED BY THE UNITED STATES."

FURTHER EVIDENCE THAT CONGRESS INTENDED TO LIMIT "RESERVATIONS," FOR THE "PURPOSES OF THIS ACT" (SEC. 3), TO THOSE LOCATED ON "LANDS OWNED BY THE UNITED STATES" OR IN WHICH IT OWNS AN INTEREST IS FURNISHED BY ITS USE OF THE TERM IN THE CONTEXT OF SEC. 4(E) OF THE ACT. BY THAT IN STREAMS OR OTHER BODIES OF WATER OVER WHICH IT HAS JURISDICTION UNDER THE COMMERCE CLAUSE OF THE CONSTITUTION (ART. I, SEC. 8, CL. 3), AUTHORIZED THE COMMISSION TO LICENSE PROJECTS "UPON ANY PART OF THE PUBLIC LANDS AND RESERVATIONS OF THE UNITED STATES." CONGRESS MUST BE DEEMED TO HAVE KNOWN, AS THIS COURT HELD IN FEDERAL POWER COMM'N V. OREGON, 349 U.S. 435, 443, THAT THE LICENSING POWER, "IN RELATION TO PUBLIC LANDS AND RESERVATIONS OF THE UNITED STATES SPRINGS FROM THE PROPERTY CLAUSE" OF THE CONSTITUTION - NAMELY, THE " ... POWER TO DISPOSE OF AND MAKE ALL NEEDFUL RULES AND REGULATIONS RESPECTING THE TERRITORY OR OTHER PROPERTY BELONGING TO THE UNITED STATES ... ." ART. IV, SEC. 3, CL. 2. IN THUS ACTING UNDER THE PROPERTY CLAUSE OF THE CONSTITUTION, CONGRESS MUST HAVE INTENDED TO DEAL ONLY WITH "THE TERRITORY OR OTHER PROPERTY BELONGING TO THE UNITED STATES." IBID.

MOREOVER, THE FEDERAL POWER ACT'S PLAN OF COMPENSATING FOR LANDS TAKEN OR USED FOR LICENSED PROJECTS IS EXPLICABLE ONLY IF THE TERM "RESERVATIONS" IS CONFINED, AS CONGRESS EVIDENTLY INTENDED, TO THOSE LOCATED ON "LANDS OWNED BY THE UNITED STATES" OR IN WHICH IT OWNS A PROPRIETARY INTEREST. BY SEC. 21, 16 U.S.C. SEC. 814, LICENSEES ARE AUTHORIZED TO ACQUIRE "THE LANDS OR PROPERTY OF OTHERS NECESSARY TO THE" LICENSED PROJECT "BY THE EXERCISE OF THE RIGHT OF EMINENT DOMAIN" IN THE FEDERAL OR STATE COURTS, AND, OF COURSE, UPON THE PAYMENT OF JUST COMPENSATION. BUT, DESPITE ITS GENERAL AND ALL-INCLUSIVE TERMS, SEC. 21 DOES NOT APPLY TO NOR AUTHORIZE CONDEMNATION OF LANDS OR INTERESTS IN LANDS OWNED BY THE UNITED STATES, BECAUSE SEC. 10(E) OF THE ACT, 16 U.S.C. SEC. 803(E), EXPRESSLY PROVIDES THAT "THE LICENSEE SHALL PAY TO THE UNITED STATES REASONABLE ANNUAL CHARGES ... FOR RECOMPENSATING IT FOR THE USE, OCCUPANCY, AND ENJOYMENT OF ITS LANDS OR OTHER PROPERTY" DEVOTED TO THE LICENSED PROJECT. IT THEREFORE APPEARS TO BE UNMISTAKABLY CLEAR THAT BY THE LANGUAGE OF THE FIRST PROVISO OF THAT SECTION SAYING, IN PERTINENT PART, "THAT WHEN LICENSES ARE ISSUED INVOLVING THE USE OF GOVERNMENT DAMS OR OTHER STRUCTURES OWNED BY THE UNITED STATES OR TRIBAL LANDS EMBRACED WITHIN INDIAN RESERVATIONS THE COMMISSION SHALL ... FIX A REASONABLE ANNUAL CHARGE FOR THE USE THEREOF ... ," CONGRESS INTENDED TO TREAT AND TREATED ONLY WITH STRUCTURES, LANDS AND INTERESTS IN LANDS OWNED BY THE UNITED STATES, FOR, AS STATED, THE SECTION EXPRESSLY REQUIRES THE "REASONABLE ANNUAL CHARGES" TO BE PAID TO THE UNITED STATES FOR THE USE, OCCUPANCY, AND ENJOYMENT OF "ITS LANDS OR OTHER PROPERTY."

THIS ANALYSIS OF THE PLAIN WORDS AND LEGISLATIVE HISTORY OF THE ACT'S DEFINITION OF "RESERVATIONS" AND OF THE PLAN AND PROVISIONS OF THE ACT LEAVES US WITH NO DOUBT THAT CONGRESS, "FOR PURPOSES OF THIS ACT" (SEC. 3(2)), INTENDED TO AND DID CONFINE "RESERVATIONS," INCLUDING "TRIBAL LANDS EMBRACED WITHIN INDIAN RESERVATIONS" (SEC. 3(2)), TO THOSE LOCATED ON LANDS "OWNED BY THE UNITED STATES" (SEC. 3(2)), OR IN WHICH IT OWNS A PROPRIETARY INTEREST.

THE COURT OF APPEALS DID NOT FIND TO THE CONTRARY. INDEED, IT FOUND THAT THE ACT'S DEFINITION OF "RESERVATIONS" INCLUDES ONLY THOSE LOCATED ON LANDS IN WHICH THE UNITED STATES "HAS AN INTEREST." BUT IT THOUGHT THAT THE NATIONAL PATERNAL RELATIONSHIP TO THE INDIANS AND THE GOVERNMENT'S CONCERN TO PROTECT THEM AGAINST IMPROPER ALIENATION OF THEIR LANDS GAVE THE UNITED STATES THE REQUISITE "INTEREST" IN THE LANDS HERE INVOLVED, AND THAT THE RESULT "MUST THE THE SAME AS IF THE PHRASE 'OWNED BY THE UNITED STATES, ETC.' WERE NOT CONSTRUED AS A LIMITATION UPON THE TERM 'TRIBAL LANDS ETC.'" 105 U.S. APP. D.C., AT 150, 265 F.2D, AT 342. WE DO NOT AGREE. THE NATIONAL "INTEREST" IN INDIAN WELFARE AND PROTECTION "IS NOT TO BE EXPRESSED IN TERMS OF PROPERTY ... ." HECKMAN V. UNITED STATES, 224 U.S. 413, 437. THE NATIONAL "PATERNAL INTEREST" IN THE WELFARE AND PROTECTION OF INDIANS IS NOT THE "INTERESTS IN LANDS OWNED BY THE UNITED STATES" REQUIRED, AS AN ELEMENT OF "RESERVATIONS," BY SEC. 3(2) OF THE FEDERAL POWER ACT.

INASMUCH AS THE LANDS INVOLVED ARE OWNED IN FEE SIMPLE BY THE TUSCARORA INDIAN NATION AND NO "INTEREST" IN THEM IS "OWNED BY THE UNITED STATES," WE HOLD THAT THEY ARE NOT WITHIN A "RESERVATION" AS THAT THEM IS DEFINED AND USED IN THE FEDERAL POWER ACT, AND THAT A COMMISSION FINDING UNDER SEC. 4(E) OF THAT ACT "THAT THE LICENSE WILL NOT INTERFERE OR BE INCONSISTENT WITH THE PURPOSE FOR WHICH SUCH RESERVATION WAS CREATED OR ACQUIRED" IS NOT NECESSARY TO THE ISSUANCE OF A LICENSE EMBRACING THE TUSCARORA LANDS NEEDED FOR THE PROJECT.

II.

WE PASS NOW TO THE QUESTION WHETHER THE PORTION OF THE TUSCARORA LANDS HERE INVOLVED MAY BE CONDEMNED BY THE LICENSEE UNDER THE PROVISIONS AND EMINENT DOMAIN POWERS OF SEC. 21 OF THE FEDERAL POWER ACT. PETITIONERS CONTEND THAT SEC. 21 IS A BROAD GENERAL STATUTE AUTHORIZING CONDEMNATION OF "THE LANDS OR PROPERTY OF OTHERS NECESSARY TO THE CONSTRUCTION, MAINTENANCE, OR OPERATION OF ANY" LICENSED PROJECT, AND THAT LANDS OWNED BY INDIANS IN FEE SIMPLE, NOT BEING EXCLUDED, MAY BE TAKEN BY THE LICENSEE UNDER THE FEDERAL EMINENT DOMAIN POWERS DELEGATED TO IT BY THAT SECTION. PARRYING THIS CONTENTION, THE TUSCARORA INDIAN NATION ARGUES THAT SEC. 21, BEING ONLY A GENERAL ACT OF CONGRESS, DOES NOT APPLY TO INDIANS OR THEIR LANDS.

THE TUSCARORA INDIAN NATION HEAVILY RELIES UPON ELK V. WILKINS, 112 U.S. 94. IT IS TRUE THAT IN THAT CASE THE COURT, DEALING WITH THE QUESTION WHETHER A NATIVE-BORN AMERICAN INDIAN WAS MADE A CITIZEN OF THE UNITED STATES BY THE FOURTEENTH AMENDMENT OF THE CONSTITUTION, SAID: "UNDER THE CONSTITUTION OF THE UNITED STATES, AS ORIGINALLY ESTABLISHED ... GENERAL ACTS OF CONGRESS DID NOT APPLY TO INDIANS, UNLESS SO EXPRESSED AS TO CLEARLY MANIFEST AN INTENTION TO INCLUDE THEM." 112 U.S., AT 99-100. HOWEVER THAT MAY HAVE BEEN, IT IS NOW WELL SETTLED BY MANY DECISIONS OF THIS COURT THAT A GENERAL STATUTE IN TERMS APPLYING TO ALL PERSONS INCLUDES INDIANS AND THEIR PROPERTY INTERESTS. IN SUPERINTENDENT OF FIVE CIVILIZED TRIBES V. COMMISSIONER, 295 U.S. 418, THE FUNDS OF A RESTRICTED CREEK INDIAN WERE HELD AND INVESTED FOR HIM BY THE SUPERINTENDENT, AND A QUESTION AROSE AS TO WHETHER INCOME FROM THE INVESTMENT WAS SUBJECT TO FEDERAL INCOME TAXES. IN AN EARLIER CASE, BLACKBIRD V. COMMISSIONER, 38 F.2D 976, THE TENTH CIRCUIT HAD HELD SUCH INCOME TO BE EXEMPT FROM FEDERAL INCOME TAXATION. BUT IN THIS CASE THE BOARD OF TAX APPEALS SUSTAINED THE TAX, THE TENTH CIRCUIT AFFIRMED, AND THE SUPERINTENDENT BROUGHT THE CASE HERE. THIS COURT OBSERVED THAT IN THE BLACKBIRD CASE THE TENTH CIRCUIT HAD SAID THAT TO HOLD A GENERAL ACT OF CONGRESS TO BE APPLICABLE TO RESTRICTED INDIANS "WOULD BE CONTRARY TO THE ALMOST UNBROKEN POLICY OF CONGRESS IN DEALING WITH ITS INDIAN WARDS AND THEIR AFFAIRS. WHENEVER THEY AND THEIR INTERESTS HAVE BEEN THE SUBJECT AFFECTED BY LEGISLATION THEY HAVE BEEN NAMED AND THEIR INTERESTS SPECIFICALLY DEALT WITH." THAT IS PRECISELY THE ARGUMENT NOW MADE HERE BY THE TUSCARORA INDIAN NATION. BUT THIS COURT, IN AFFIRMING THE JUDGMENT, SAID:

"THIS DOES NOT HARMONIZE WITH WHAT WE SAID IN CHOTEAU V. BURNET (1931), 283 U.S. 691, 693, 696:

"'THE LANGUAGE OF THE INTERNAL REVENUE ACT OF 1918 SUBJECTS THE INCOME OF "EVERY INDIVIDUAL" TO TAX. SECTION 213(A) INCLUDES INCOME "FROM ANY SOURCE WHATEVER." THE INTENT OF CONGRESS WAS TO LEVY THE TAX WITH RESPECT TO ALL RESIDENTS OF THE UNITED STATES AND UPON ALL SORTS OF INCOME. THE ACT DOES NOT EXPRESSLY EXEMPT THE SORT OF INCOME HERE INVOLVED, NOR A PERSON HAVING PETITIONER'S STATUS RESPECTING SUCH INCOME, AND WE ARE NOT REFERRED TO ANY OTHER STATUTE WHICH DOES ... . THE INTENT TO EXCLUDE MUST BE DEFINITELY EXPRESSED, WHERE, AS HERE, THE LANGUAGE OF THE ACT LAYING THE TAX IS BROAD ENOUGH TO INCLUDE THE SUBJECT MATTER.'

"THE COURT BELOW PROPERLY DECLINED TO FOLLOW ITS QUOTED PRONOUNCEMENT IN BLACKBIRD'S CASE. THE TERMS OF THE 1928 REVENUE ACT ARE VERY BROAD, AND NOTHING THERE INDICATES THAT INDIANS ARE TO BE EXCEPTED. SEE IRWIN V. GAVIT, 268 U.S. 161; HEINER V. COLONIAL TRUST CO., 275 U.S. 232; HELVERING V. STOCKHOLMS ENSKILDA BANK, 293 U.S. 84; PITMAN V. COMMISSIONER, 64 F.(2D) 740. THE PURPOSE IS SUFFICIENTLY CLEAR." 295 U.S., AT 419-420.

IN OKLAHOMA TAX COMM'N V. UNITED STATES, 319 U.S. 598, THIS COURT, IN HOLDING THAT THE ESTATE OF A RESTRICTED OKLAHOMA INDIAN WAS SUBJECT TO STATE INHERITANCE AND ESTATE TAXES UNDER GENERAL STATE STATUTES, SAID:

"THE LANGUAGE OF THE STATUTES DOES NOT EXCEPT EITHER INDIANS OR ANY OTHER PERSONS FROM THEIR SCOPE. 319 U.S., AT 600. IF CONGRESS INTENDS TO PREVENT THE STATE OF OKLAHOMA FROM LEVYING A GENERAL NONDISCRIMINATORY ESTATE TAX APPLYING ALIKE TO ALL ITS CITIZENS, IT SHOULD SAY SO IN PLAIN WORDS. SUCH A CONCLUSION CANNOT REST ON DUBIOUS INFERENCES." 319 U.S., AT 607.

SEE, E.G., SHAW V. GIBSON-ZAHNISER OIL CORPORATION, 276 U.S. 575, 581 582; UNITED STATES V. RANSOM, 263 U.S. 691; KENNEDY V. BECKER, 241 U.S. 556, 563-564; CHOATE V. TRAPP, 224 U.S. 665, 673.

THE FEDERAL POWER ACT CONSTITUTES A COMPLETE AND COMPREHENSIVE PLAN FOR THE DEVELOPMENT AND IMPROVEMENT OF NAVIGATION AND FOR THE DEVELOPMENT, TRANSMISSION AND UTILIZATION OF ELECTRIC POWER IN ANY OF THE STREAMS OR OTHER BODIES OF WATER OVER WHICH CONGRESS HAS JURISDICTION UNDER ITS COMMERCE POWERS, AND UPON THE PUBLIC LANDS AND RESERVATIONS OF THE UNITED STATES UNDER ITS PROPERTY POWERS. SEE SEC. 4(E). IT NEITHER OVERLOOKS NOR EXCLUDES INDIANS OR LANDS OWNED OR OCCUPIED BY THEM. INSTEAD, AS HAS BEEN SHOWN, THE ACT SPECIFICALLY DEFINES AND TREATS WITH LANDS OCCUPIED BY INDIANS - "TRIBAL LANDS EMBRACED WITHIN INDIAN RESERVATIONS." SEE SECS. 3(2) AND 10(E). THE ACT GIVES EVERY INDICATION THAT, WITHIN ITS COMPREHENSIVE PLAN, CONGRESS INTENDED TO INCLUDE LANDS OWNED OR OCCUPIED BY ANY PERSON OR PERSONS, INCLUDING INDIANS. THE COURT OF APPEALS RECOGNIZED THAT THIS IS SO. 105 U.S. APP. D.C., AT 151, 265 F.2D, AT 343. SECTION 21 OF THE ACT, BY BROAD GENERAL TERMS, AUTHORIZES THE LICENSEE TO CONDEMN "THE LANDS OR PROPERTY OF OTHERS NECESSARY TO THE CONSTRUCTION, MAINTENANCE, OR OPERATION OF ANY" LICENSED PROJECT. THAT SECTION DOES NOT EXCLUDE LANDS OR PROPERTY OWNED BY INDIANS, AND, UPON THE AUTHORITY OF THE CASES CITED, WE MUST HOLD THAT IT APPLIES TO THESE LANDS OWNED IN FEE SIMPLE BY THE TUSCARORA INDIAN NATION. THE TUSCARORA INDIAN NATION INSISTS THAT EVEN IF ITS LANDS ARE EMBRACED BY THE TERMS OF SEC. 21 OF THE FEDERAL POWER ACT, THEY STILL MAY NOT BE TAKEN FOR PUBLIC USE "WITHOUT THE EXPRESS CONSENT OF CONGRESS REFERRING SPECIFICALLY TO THOSE LANDS," BECAUSE OF THE PROVISIONS OF 25 U.S.C. SEC. 177. (FN17) THAT SECTION, IN PERTINENT PART, PROVIDES:

"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 ... ."

THE OBVIOUS PURPOSE OF THAT STATUTE IS TO PREVENT UNFAIR, IMPROVIDENT OR IMPROPER DISPOSITION BY INDIANS OF LANDS OWNED OR POSSESSED BY THEM TO OTHER PARTIES, EXCEPT THE UNITED STATES, WITHOUT THE CONSENT OF CONGRESS, AND TO ENABLE THE GOVERNMENT, ACTING AS PARENS PATRIAE FOR THE INDIANS, TO VACATE ANY DISPOSITION OF THEIR LANDS MADE WITHOUT ITS CONSENT. SEE, E.G., UNITED STATES V. HELLARD, 322 U.S. 363; UNITED STATES V. CANDELARIA, 271 U.S. 432, 441-442; HENKEL V. UNITED STATES, 237 U.S. 43, 51; UNITED STATES V. SANDOVAL, 231 U.S. 28, 46-48. BUT THERE IS NO SUCH REQUIREMENT WITH RESPECT TO CONVEYANCES TO OR CONDEMNATIONS BY THE UNITED STATES OR ITS LICENSEES; "NOR IS IT CONCEIVABLE THAT IT IS NECESSARY, FOR THE INDIANS ARE SUBJECT ONLY TO THE SAME RULE OF LAW AS ARE OTHERS IN THE STATE ... ." UNITED STATES V. OKLAHOMA GAS CO., 318 U.S. 206, 211.

AS TO THE TUSCARORAS' CONTENTION THAT SEC. 177 PROHIBITS THE TAKING OF ANY OF THEIR LANDS FOR THE RESERVOIR "WITHOUT THE EXPRESS AND SPECIFIC CONSENT OF CONGRESS," ONE THING IS CERTAIN. IT IS CERTAIN THAT IF SEC. 177 IS APPLICABLE TO ALIENATIONS EFFECTED BY CONDEMNATION PROCEEDINGS UNDER SEC. 21 OF THE FEDERAL POWER ACT, THE MERE "EXPRESSED CONSENT" OF CONGRESS WOULD BE VAIN AND IDLE. FOR SEC. 177 AT THE VERY LEAST CONTEMPLATES THE ASSENT OF THE INDIAN NATION OR TRIBE. AND INASMUCH AS THE TUSCARORA INDIAN NATION WITHHOLDS SUCH CONSENT AND REFUSES TO CONVEY TO THE LICENSEE ANY OF ITS LANDS, IT FOLLOWS THAT THE MERE CONSENT OF CONGRESS, HOWEVER EXPRESS AND SPECIFIC, WOULD AVAIL NOTHING. THEREFORE, IF SEC. 177 IS APPLICABLE TO ALIENATIONS EFFECTED BY CONDEMNATION UNDER SEC. 21 OF THE FEDERAL POWER ACT, THE RESULT WOULD BE THAT THE TUSCARORA LANDS, HOWEVER IMPERATIVE FOR THE PROJECT, COULD NOT BE TAKEN AT ALL.

BUT SEC. 177 IS NOT APPLICABLE TO THE SOVEREIGN UNITED STATES NOR, HENCE, TO ITS LICENSEES TO WHOM CONGRESS HAS DELEGATED FEDERAL EMINENT DOMAIN POWERS UNDER SEC. 21 OF THE FEDERAL POWER ACT. THE LAW IS NOW WELL SETTLED THAT:

"A GENERAL STATUTE IMPOSING RESTRICTIONS DOES NOT IMPOSE THEM UPON THE GOVERNMENT ITSELF WITHOUT A CLEAR EXPRESSION OR IMPLICATION TO THAT EFFECT." UNITED STATES V. WITTEK, 337 U.S. 346, 358-359.

IN UNITED STATES V. UNITED MINE WORKERS OF AMERICA, 330 U.S. 258, 272 273, THE COURT SAID:

"THERE IS AN OLD AND WELL-KNOWN RULE THAT STATUTES WHICH IN GENERAL TERMS DIVEST PRE-EXISTING RIGHTS OR PRIVILEGES WILL NOT BE APPLIED TO THE SOVEREIGN WITHOUT EXPRESS WORDS TO THAT EFFECT."

SEE, E.G., LEITER MINERALS, INC., V. UNITED STATES, 352 U.S. 220, 224 225; UNITED STATES V. WYOMING, 331 U.S. 440, 449; UNITED STATES V. STEVENSON, 215 U.S. 190; UNITED STATES V. AMERICAN BELL TELEPHONE CO., 159 U.S. 548, 553-555; LEWIS V. UNITED STATES, 92 U.S. 618, 622; UNITED STATES V. HERRON, 20 WALL. 251, 263; DOLLAR SAVINGS BANK V. UNITED STATES, 19 WALL. 227, 239.

THIS COURT HAS SEVERAL TIMES APPLIED, IN COMBINATION, THE RULES (1) THAT GENERAL ACTS OF CONGRESS APPLY TO INDIANS AS WELL AS TO ALL OTHERS IN THE ABSENCE OF A CLEAR EXPRESSION TO THE CONTRARY, AND (2) THAT GENERAL STATUTES IMPOSING RESTRICTIONS DO NOT APPLY TO THE GOVERNMENT ITSELF WITHOUT A CLEAR EXPRESSION TO THAT EFFECT. IT DID SO IN HENKEL V. UNITED STATES, 237 U.S. 43 (SUSTAINING THE RIGHT OF THE UNITED STATES TO TAKE INDIAN LANDS FOR RESERVOIR PURPOSES UNDER THE GENERAL RECLAMATION ACT OF JUNE 17, 1902, 32 STAT. 388), IN SPALDING V. CHANDLER, 160 U.S. 394 (SUSTAINING THE POWER OF THE GOVERNMENT TO CONVEY A STRIP OF LAND THROUGH A TRACT OWNED BY AN INDIAN TRIBE TO ONE CHANDLER FOR THE USE OF THE STATE OF MICHIGAN IN CONSTRUCTING A CANAL, EVEN THOUGH THE CONVEYANCE WAS IN DEROGATION OF A TREATY WITH THE INDIAN TRIBE), AND IN CHEROKEE NATION V. SOUTHERN KANSAS R. CO., 135 U.S. 641. THERE, THIS COURT SUSTAINED THE RIGHT OF A LICENSEE OF THE GOVERNMENT TO TAKE SO MUCH OF THE UNDESCRIBED FEE LANDS OF AN INDIAN TRIBE AS WAS NECESSARY FOR THE LICENSED PROJECT, THOUGH IN DEROGATION OF THE TERMS OF A TREATY BETWEEN THE UNITED STATES AND THE INDIAN TRIBE, (FN18) SAYING:

"IT WOULD BE VERY STRANGE IF THE NATIONAL GOVERNMENT, IN THE EXECUTION OF ITS RIGHTFUL AUTHORITY, COULD EXERCISE THE POWER OF EMINENT DOMAIN IN THE SEVERAL STATES, AND COULD NOT EXERCISE THE SAME POWER IN A TERRITORY OCCUPIED BY AN INDIAN NATION OR TRIBE, THE MEMBERS OF WHICH WERE WARDS OF THE UNITED STATES, AND DIRECTLY SUBJECT TO ITS POLITICAL CONTROL. THE LANDS IN THE CHEROKEE TERRITORY, LIKE THE LANDS HELD BY PRIVATE OWNERS EVERYWHERE WITHIN THE GEOGRAPHICAL LIMITS OF THE UNITED STATES, ARE HELD SUBJECT TO THE AUTHORITY OF THE GENERAL GOVERNMENT TO TAKE THEM FOR SUCH OBJECTS AS ARE GERMANE TO THE EXECUTION OF THE POWERS GRANTED TO IT; PROVIDED ONLY, THAT THEY ARE NOT TAKEN WITHOUT JUST COMPENSATION BEING MADE TO THE OWNER." 135 U.S., AT 656-657.


SEE ALSO LONE WOLF V. HITCHCOCK, 187 U.S. 553, 565; MISSOURI, KANSAS & TEXAS R. CO. V. ROBERTS, 152 U.S. 114, 117-118; BEECHER V. WETHERBY, 95 U.S. 517; KOHL V. UNITED STATES, 91 U.S. 367.

IN THE LIGHT OF THESE AUTHORITIES WE MUST HOLD THAT CONGRESS, BY THE BROAD GENERAL TERMS OF SEC. 21 OF THE FEDERAL POWER ACT, HAS AUTHORIZED THE FEDERAL POWER COMMISSION'S LICENSEES TO TAKE LANDS OWNED BY INDIANS, AS WELL AS THOSE OF ALL OTHER CITIZENS, WHEN NEEDED FOR A LICENSED PROJECT, UPON THE PAYMENT OF JUST COMPENSATION; THAT THE LANDS IN QUESTION ARE NOT SUBJECT TO ANY TREATY BETWEEN THE UNITED STATES AND THE TUSCARORAS (SEE NOTES 10 AND 18); AND THAT 25 U.S.C. SEC. 177 DOES NOT APPLY TO THE UNITED STATES ITSELF NOR PROHIBIT IT, OR ITS LICENSEES UNDER THE FEDERAL POWER ACT, FROM TAKING SUCH LANDS IN THE MANNER PROVIDED BY SEC. 21, UPON THE PAYMENT OF JUST COMPENSATION.

ALL MEMBERS OF THIS COURT - NO ONE MORE THAN ANY OTHER - ADHERE TO THE CONCEPT THAT AGREEMENTS ARE MADE TO BE PERFORMED - NO LESS BY THE GOVERNMENT THAN BY OTHERS - BUT THE FEDERAL EMINENT DOMAIN POWERS CONFERRED BY CONGRESS UPON THE COMMISSION'S LICENSEE, BY SEC. 21 OF THE FEDERAL POWER ACT, TO TAKE SUCH OF THE LANDS OF THE TUSCARORAS AS ARE NEEDED FOR THE NIAGARA PROJECT DO NOT BREACH THE FAITH OF THE UNITED STATES, OR ANY TREATY OR OTHER CONTRACTUAL AGREEMENT OF THE UNITED STATES WITH THE TUSCARORA INDIAN NATION IN RESPECT TO THESE LANDS FOR THE CONCLUSIVE REASON THAT THERE IS NONE. REVERSED.

FN1 1 U.S.T. 694.

FN2 THE EXCESS FLOW OF WATER AVAILABLE FOR POWER PURPOSES UNDER THE 1950 TREATY WAS ESTIMATED TO FLUCTUATE BETWEEN 44,000 AND 210,000 CUBIC FEET PER SECOND, DEPENDING ON THE FLOW, THE TIME OF YEAR, AND THE TIME OF DAY. S. REP. NO. 539, 85TH CONG., 1ST SESS., P. 4.

THE 1950 TREATY SUPERSEDED THE BOUNDARY WATERS TREATY OF JANUARY 11, 1909 (TREATY SERIES 548, 36 STAT. 2448) WHICH LIMITED DIVERSIONS OF WATER BY CANADA TO 36,000, AND BY THE UNITED STATES TO 20,000, CUBIC FEET PER SECOND. BEGINNING IN 1921, THE WATERS AVAILABLE TO THE UNITED STATES UNDER THAT TREATY WERE UTILIZED BY NIAGARA MOHAWK POWER CORPORATION IN ITS SCHOELLKOPF HYDROELECTRIC PLANT, UNDER A FEDERAL LICENSE EXPIRING IN 1971. THE RATED CAPACITY OF THAT PLANT WAS 360,000 KILOWATTS.

FN3 S. REP. NO. 539, 85TH CONG., 1ST SESS., PP. 5-6.

FN4 IBID.

FN5 HEARINGS WERE HELD BEFORE THE SENATE COMMITTEE ON PUBLIC WORKS, OR ITS SUBCOMMITTEE, IN THE EIGHTY-SECOND, EIGHTY-THIRD AND EIGHTY FOURTH CONGRESSES, AND IN THE FIRST SESSION OF THE EIGHTY-FIFTH CONGRESS; BEFORE THE HOUSE COMMITTEE ON PUBLIC WORKS IN THE FIRST SESSIONS OF THE EIGHTY-FIRST AND EIGHTY-SECOND CONGRESSES, AND IN THE FIRST AND SECOND SESSIONS OF THE EIGHTY-FOURTH CONGRESS. JOINT HEARINGS WERE HELD BY THE HOUSE COMMITTEE AND A SUBCOMMITTEE OF THE SENATE COMMITTEE IN THE EIGHTY-THIRD CONGRESS, FIRST SESSION. REPORTS ON THESE BILLS WERE S. REP. NO. 2501, 83D CONG., 2D SESS.; H.R. REP. NO. 713, 83D CONG., 1ST SESS.; S. REP. NO. 1408, 84TH CONG., 2D SESS.; H.R. REP. NO. 2635, 84TH CONG., 2D SESS. THE COMMITTEE REPORTS ON THE BILL WHICH WAS FINALLY ENACTED WERE S. REP. NO. 539, 85TH CONG., 1ST SESS.; H.R. REP. NO. 862, 85TH CONG., 1ST SESS.

FN6 SEE NOTE 2.

FN7 THE REPORT OF THE SENATE COMMITTEE ON PUBLIC WORKS OF JUNE 27, 1957, REPORTING OUT THE BILL THAT WAS FINALLY ADOPTED, CONTAINED THE FOLLOWING STATEMENT:

"THE PROPOSALS BY THE POWER AUTHORITY OF THE STATE OF NEW YORK AT PRESENT CONTEMPLATE A PROJECT WITH A TOTAL INSTALLED CAPACITY OF 2,190,000 KILOWATTS. OF THIS 1,800,000 WILL CONSTITUTE FIRM POWER ON A 17-HOUR-DAY BASIS. THEY ANTICIPATE THAT IN ORDER TO ACHIEVE THIS AMOUNT OF FIRM CAPACITY PUMP-STORAGE AND PUMPING-GENERATING FACILITIES WILL BE REQUIRED." S. REP. NO. 539, 85TH CONG., 1ST SESS., P. 5.

THE REPORT OF THE HOUSE COMMITTEE ON PUBLIC WORKS OF JULY 23, 1957, CONTAINED THE FOLLOWING STATEMENT:

"AS A RESULT OF THE SCHOELLKOPF DISASTER, THE REDEVELOPMENT PROJECT WILL BE ENLARGED SO AS TO DEVELOP THE WATER FORMERLY UTILIZED IN THE DESTROYED PLANT. THE PROPOSAL NOW CONTEMPLATES A PROJECT WITH A TOTAL INSTALLED CAPACITY OF 2,190,000 KILOWATTS. OF THIS 1,800,000 WILL CONSTITUTE FIRM POWER ON A 17-HOUR-DAY BASIS. IT IS ANTICIPATED THAT IN ORDER TO ACHIEVE THIS AMOUNT OF FIRM CAPACITY, PUMP-STORAGE AND PUMPING-GENERATING FACILITIES WILL BE REQUIRED." H.R. REP. NO. 862, 85TH CONG., 1ST SESS., P. 7.

FN8 THOSE SEVEN CONDITIONS RESOLVED THE PREVIOUSLY DISPUTED ISSUES WHICH HAD SO LONG DELAYED CONGRESSIONAL AUTHORIZATION OF THE PROJECT. BY THOSE CONDITIONS, AT LEAST 50% OF THE PROJECT POWER MUST BE MADE AVAILABLE TO PUBLIC BODIES AND NONPROFIT COOPERATIVES "AT THE LOWEST RATES REASONABLY POSSIBLE," AND 20% OF THAT AMOUNT MUST BE MADE AVAILABLE FOR USE IN NEIGHBORING STATES. NIAGARA MOHAWK POWER CORPORATION WAS GIVEN THE RIGHT TO PURCHASE 445,000 KILOWATTS FOR A DESIGNATED PERIOD TO SUPPLY, AND "RESTORE LOW POWER COSTS TO," THE CUSTOMERS OF ITS SCHOELLKOPF PLANT, IN EXCHANGE FOR RELINQUISHMENT OF ITS FEDERAL LICENSE. THE POWER AUTHORITY OF NEW YORK WAS AUTHORIZED TO CONSTRUCT INDEPENDENT TRANSMISSION LINES TO REACH ITS PREFERENCE CUSTOMERS AND TO CONTROL THE RESALE RATES OF DISTRIBUTORS PURCHASING POWER FROM IT. THE PROJECT WAS REQUIRED TO BEAR THE UNITED STATES' SHARE OF THE COST OF REMEDIAL WORKS IN THE RIVER, AND, WITHIN A DESIGNATED MAXIMUM SUM, THE COST OF A SCENIC DRIVE AND A PARK.

FN9 THE PLANS EMBRACED BY THE APPLICATION FOR THE LICENSE CONSISTED, IN GENERAL, OF (1) THE MAIN GENERATING PLANT ON THE EAST BANK OF THE RIVER, (2) A PUMPING-GENERATING PLANT, LOCATED A SHORT DISTANCE EAST OF THE MAIN GENERATING PLANT, (3) A STORAGE RESERVOIR, ADJACENT TO THE PUMPING-GENERATING PLANT, HAVING A USABLE STORAGE CAPACITY OF 60,000 ACRE-FEET, AND COVERING ABOUT 2,800 ACRES, (4) A WATER INTAKE STRUCTURE ON THE EAST BANK OF THE RIVER ABOUT THREE MILES ABOVE THE FALLS, AND (5) A WATER CONVEYANCE SYSTEM EXTENDING FROM THE INTAKE TO A FOREBAY AT THE PUMPING-GENERATING PLANT, AND FROM THE LATTER TO A FOREBAY AT THE MAIN GENERATING PLANT.

FN10 BECAUSE THE PROCEEDS OF THE SALE OF THE TUSCARORAS' NORTH CAROLINA LANDS ($15,000) WERE PAYABLE IN THREE EQUAL ANNUAL INSTALLMENTS AND WERE TO BE USED, SO FAR AS NECESSARY, FOR THE PAYMENT OF THE PURCHASE PRICE OF THE NEW YORK LANDS ($13,752.80), WHICH WAS ALSO PAYABLE IN THREE SUBSTANTIALLY EQUAL ANNUAL INSTALLMENTS, THE LATTER LANDS WERE CONVEYED ON NOVEMBER 21, 1804, BY DEED OF THE HOLLAND LAND COMPANY (WHICH ACKNOWLEDGED RECEIPT OF THE FIRST INSTALLMENT OF THE PURCHASE PRICE, AND RESERVED A LIEN TO SECURE THE TWO UNPAID INSTALLMENTS OF THE PURCHASE PRICE) TO HENRY DEARBORN "IN TRUST" FOR THE "TUSCARORA NATION OF INDIANS AND THEIR ASSIGNS FOREVER ... THE SAID HENRY DEARBORN AND HIS HEIRS TO GRANT AND CONVEY THE SAME IN FEE SIMPLE OR OTHERWISE TO SUCH PERSON OR PERSONS AS THE SAID TUSCARORA NATION OF INDIANS SHALL AT ANY TIME HEREAFTER DIRECT AND APPOINT." AFTER COLLECTION OF THE REMAINING INSTALLMENTS OF THE PURCHASE PRICE OF THE TUSCARORAS' NORTH CAROLINA LANDS AND, IN TURN, REMITTING TO THE HOLLAND LAND COMPANY SO MUCH THEREOF AS WAS NECESSARY TO PAY THE BALANCE OF THE PURCHASE PRICE FOR THE NEW YORK LANDS, HENRY DEARBORN CONVEYED THE NEW YORK LANDS TO THE "TUSCARORA NATION OF INDIANS AND THEIR SUCCESSORS AND ASSIGNS FOR EVER," IN FEE SIMPLE FREE AND CLEAR OF ENCUMBRANCES, ON JANUARY 2, 1809. THE TUSCARORA INDIAN NATION HAS EVER SINCE CONTINUED TO OWN THOSE LANDS UNDER THAT CONVEYANCE.

IN ADDITION TO THE 4,329 ACRES PURCHASED FROM THE HOLLAND LAND COMPANY IN 1804, THE TUSCARORAS' RESERVATION EMBRACES TWO OTHER CONTIGUOUS TRACTS CONTAINING 1,920 ACRES. THE FIRST, A TRACT OF 640 ACRES, WAS CEDED TO THE TUSCARORAS BY THE HOLLAND LAND COMPANY IN JUNE 1798. THE SECOND, A TRACT OF 1,280 ACRES, WAS CEDED TO THEM BY THE HOLLAND LAND COMPANY IN 1799. THOSE TRACTS ARE NOT INVOLVED IN THIS CASE. FN11 AS AMENDED, 49 STAT. 838, 16 U.S.C. SECS. 796(2) AND 797(E). FN12 MEANWHILE, ON APRIL 15, 1958, THE POWER AUTHORITY OF NEW YORK COMMENCED SO-CALLED "APPROPRIATION" PROCEEDINGS UNDER SEC. 30 OF THE NEW YORK STATE HIGHWAY LAW, MCKINNEY'S CONSOL. LAWS, C. 25, AND ALSO UNDER ART. 5, TIT. 1, OF THE NEW YORK PUBLIC AUTHORITIES LAW, MCKINNEY'S CONSOL. LAWS, C. 43-A, TO CONDEMN THE 1,383 ACRES OF TUSCARORA LANDS FOR RESERVOIR USE. ON APRIL 18, 1958, THE TUSCARORA INDIAN NATION FILED A COMPLAINT IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AGAINST THE POWER AUTHORITY AND THE SUPERINTENDENT OF PUBLIC WORKS OF NEW YORK, SEEKING (1) A DECLARATORY JUDGMENT THAT THE POWER AUTHORITY HAD NO RIGHT OR POWER TO TAKE ANY OF ITS LANDS WITHOUT THE EXPRESS AND SPECIFIC CONSENT OF THE UNITED STATES, AND (2) A PERMANENT INJUNCTION AGAINST THE APPROPRIATION OR CONDEMNATION OF ANY OF ITS LANDS. THE COURT ISSUED A TEMPORARY RESTRAINING ORDER. THE ACTION, BEING A "LOCAL" ONE, WAS THEN TRANSFERRED TO THE DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK. AFTER HEARING, THAT COURT ON JUNE 24, 1958, DENIED THE RELIEF PRAYED, DISSOLVED THE RESTRAINING ORDER, AND DISMISSED THE COMPLAINT ON THE MERITS. TUSCARORA NATION OF INDIANS V. POWER AUTHORITY OF THE STATE OF NEW YORK, 164 F. SUPP. 107.

ON APPEAL, THE SECOND CIRCUIT AFFIRMED IN PART AND REVERSED IN PART. IT HELD THAT THE POWER AUTHORITY WAS AUTHORIZED UNDER PUBLIC LAW 58-159 AND THE FEDERAL POWER ACT AND BY THE COMMISSION'S LICENSE THEREUNDER OF JANUARY 30, 1958, TO TAKE THE PART OF THE TUSCARORA LANDS NEEDED FOR THE RESERVOIR, BUT THAT THEY COULD BE TAKEN ONLY BY A CONDEMNATION ACTION IN A STATE OR FEDERAL COURT IN THE DISTRICT WHERE THE PROPERTY IS LOCATED UNDER AND IN THE MANNER PROVIDED BY SEC. 21 OF THE FEDERAL POWER ACT (16 U.S.C. SEC. 814), AND NOT BY "APPROPRIATION" PROCEEDINGS UNDER THE NEW YORK LAWS REFERRED TO. TUSCARORA NATION OF INDIANS V. POWER AUTHORITY OF THE STATE OF NEW YORK, 257 F.2D 885. THE TUSCARORA INDIAN NATION'S PETITION TO THIS COURT FOR A WRIT OF CERTIORARI WAS DENIED ON OCTOBER 13, 1958. 358 U.S. 841. THE SUPERINTENDENT OF PUBLIC WORKS OF NEW YORK, A RESPONDENT IN THE SECOND CIRCUIT PROCEEDINGS, HAS APPEALED TO THIS COURT FROM SO MUCH OF THE JUDGMENT AS DENIED A RIGHT TO ACQUIRE THE TUSCARORA LANDS BY APPROPRIATION PROCEEDINGS UNDER THE NEW YORK LAWS, AND THAT APPEAL IS NOW PENDING HERE. (NO. 4, OCT. TERM, 1959.)

FN13 IN MAKING THE STATEMENT REFERRED TO IN THE TEXT THE COMMISSION WAS DOUBTLESS ALLUDING TO THE FACT THAT IN MAY 1958, THE POWER AUTHORITY OFFERED THE TUSCARORAS $1,500,000 FOR THE 1,383 ACRES, OR IN EXCESS OF $1,000 PER ACRE, PLUS PAYMENT FOR, OR REMOVAL TO OR REPLACING ON OTHER LANDS, THE 37 HOUSES LOCATED ON THESE 1,383 ACRES AND OFFERED TO CONSTRUCT FOR THEM A COMMUNITY CENTER BUILDING, INVOLVING A TOTAL EXPENDITURE OF ABOUT $2,400,000, WHICH OFFER, THE COMMISSION SAYS, HAS NEVER BEEN WITHDRAWN.

THE TUSCARORA INDIAN NATION TELLS US IN ITS BRIEF THAT:

"WHAT THE GOVERNMENT UNFORTUNATELY FAILS TO POINT OUT IS THAT THE POWER AUTHORITY'S 'OFFER' WAS AND STILL IS AN EMPTY GESTURE SINCE, AS THE COURT BELOW AND THE COURT OF APPEALS FOR THE SECOND CIRCUIT BOTH RULED, THE TUSCARORA NATION IS PROHIBITED BY LAW FROM SELLING ITS LANDS WITHOUT THE CONSENT OF THE UNITED STATES EXPRESSED IN AN ACT OF CONGRESS. 25 U.S.C. SECS. 177, 233."

FN14 SEE H.R. REP. NO. 715, 65TH CONG., 2D SESS., P. 22; S. REP. NO. 180, 66TH CONG., 1ST SESS., P. 10.

FN15 SEE S. REP. NO. 180, 66TH CONG., 1ST SESS., P. 10; 59 CONG. REC. 1103.

FN16 SEE H.R. REP. NO. 910, 66TH CONG., 2D SESS., P. 7.

FN17 THE TUSCARORAS ALSO RELY UPON 25 U.S.C. SEC. 233, WHICH CONFERS, SUBJECT TO QUALIFICATIONS, JURISDICTION UPON THE COURTS OF NEW YORK OVER CIVIL ACTIONS BETWEEN INDIANS AND ALSO BETWEEN THEM AND OTHER PERSONS, AND CONTAINS A PERTINENT PROVISO "THAT NOTHING HEREIN CONTAINED SHALL BE CONSTRUED AS AUTHORIZING THE ALIENATION FROM ANY INDIAN NATION, TRIBE, OR BAND OF INDIANS OF ANY LANDS WITHIN ANY INDIAN RESERVATION IN THE STATE OF NEW YORK."

FN18 THE TUSCARORA INDIAN NATION ARGUES THAT ITS LANDS IN QUESTION SHOULD BE REGARDED AS SUBJECT TO AND PROTECTED FROM CONDEMNATION BY THE TREATY OF FORT STANWIX OF OCTOBER 22, 1784 (7 STAT. 15), THE UNRATIFIED TREATY OF FORT HARMAR OF JANUARY 9, 1789 (7 STAT. 33), AND THE TREATY OF CANANDAIGUA OF NOVEMBER 11, 1794 (7 STAT. 44). BUT THE RECORD SHOWS THAT THE FIRST TWO OF THESE TREATIES RELATED TO OTHER LANDS AND, PRINCIPALLY AT LEAST, TO OTHER INDIAN NATIONS, AND THAT THE LAST TREATY MENTIONED, THOUGH COVERING THE LANDS IN QUESTION, WAS WITH ANOTHER INDIAN NATION (THE SENECAS) WHICH, PURSUANT TO THE TREATY OF BIG TREE OF SEPTEMBER 15, 1797 (7 STAT. 601) AND WITH THE APPROBATION OF THE UNITED STATES, SOLD ITS INTEREST IN THESE LANDS TO ROBERT MORRIS AND THUS FREED THEM FROM THE EFFECTS OF THE TREATY OF CANANDAIGUA OF 1794. ROBERT MORRIS, IN TURN, CONVEYED THESE LANDS TO THE HOLLAND LAND COMPANY AND IT, IN TURN, CONVEYED THE PART IN QUESTION TO THE TUSCARORA INDIAN NATION, AND ITS TITLE RESTS UPON THAT CONVEYANCE, FREE OF ANY TREATY.

IT APPEARS FROM THE RECORD THAT, AS EARLIER STATED (SEE NOTE 10), THE TUSCARORAS, SAVE FOR A FEW OF THEM WHO REMAINED ON THEIR LANDS "ON THE ROANOKE" IN NORTH CAROLINA, MOVED FROM THEIR NORTH CAROLINA LANDS TO RESIDE WITH THE ONEIDAS IN CENTRAL NEW YORK - AT A POINT ABOUT 200 MILES EAST OF THE LANDS NOW OWNED BY THE TUSCARORAS IN NIAGARA COUNTY, NEW YORK - IN 1775. THE TUSCARORAS HAD NO PROPRIETARY INTEREST IN THE ONEIDAS' LANDS IN CENTRAL NEW YORK BUT WERE THERE AS "GUESTS" OF THE ONEIDAS OR AS "TENANTS AT WILL OR BY SUFFERANCE." HOUGH, CENSUS OF THE STATE OF NEW YORK, 1857, P. 510; NEW YORK SENATE DOCUMENT NO. 24, 1846, P. 68. THEY CAME TO BE RECOGNIZED, HOWEVER, AS MEMBERS OF THE FIVE NATIONS WHICH THEREAFTER BECAME KNOWN AS THE SIX NATIONS (THE OTHERS BEING THE ONEIDAS, THE MOHAWKS, THE ONANDAGAS, THE CAYUGAS AND THE SENECAS). THE SENECAS OCCUPIED A VAST AREA IN WESTERN NEW YORK, INCLUDING THE LANDS HERE IN QUESTION. A FEW TUSCARORAS FOUGHT WITH THE SENECAS ON THE SIDE OF THE BRITISH AND AFTER THEIR DEFEAT AT THE BATTLE OF ELMIRA IN 1779, THEY WENT TO RESIDE WITH THE SENECAS IN THE VICINITY OF FORT NIAGARA IN ABOUT 1780. OTHER TUSCARORAS THEN MOVED TO THAT PLACE. JUST WHEN THEY DID SO IS NOT KNOWN WITH CERTAINTY AND IT APPEARS THAT THE MOST THAT CAN BE SAID IS THAT THEY WERE THERE PRIOR TO 1797. THE TUSCARORAS HAD THE SAME KIND OF TENURE, I.E., GUESTS OR TENANTS AT WILL OR BY SUFFERANCE, WITH THE SENECAS AS THEY HAD EARLIER HAD WITH THE ONEIDAS IN CENTRAL NEW YORK. ONE OF THEIR CHIEFS DESCRIBED THEIR SITUATION AS "SQUATTERS UPON THE TERRITORY OF ANOTHER DISTINCT NATION."

BY THE TREATY OF FORT STANWIX OF 1784 (7 STAT. 15) AND THE UNRATIFIED TREATY OF FORT HARMAR OF 1789 (7 STAT. 33) WITH THE SIX NATIONS, THE UNITED STATES PROMISED TO HOLD THE ONEIDAS AND THE TUSCARORAS SECURE IN THE LANDS UPON WHICH THEY THEN LIVED - WHICH WERE THE LANDS IN CENTRAL NEW YORK ABOUT 200 MILES EAST OF THE LANDS IN QUESTION. BY THE SAME TREATIES THE UNITED STATES PROMISED TO SECURE TO THE SIX NATIONS A TRACT OF LAND IN WESTERN NEW YORK IN THE VICINITY OF THE NIAGARA RIVER. BY THE TREATY OF CANANDAIGUA OF 1794 (7 STAT. 44) BETWEEN THE UNITED STATES AND THE SIX NATIONS, WHICH SUPERSEDED THE PRIOR TREATIES (EXCEPT, BY ARTICLE VI, THE UNITED STATES REMAINED BOUND TO PAY THE TUSCARORAS $4,500 PER YEAR FOR THE PURCHASE OF CLOTHING), IT WAS RECOGNIZED THAT THE SENECAS ALONE HAD POSSESSORY RIGHTS TO THE WESTERN NEW YORK AREA HERE INVOLVED AND, AS A RESULT OF THAT TREATY, A LARGE TRACT OF WESTERN NEW YORK LANDS, INCLUDING THE LANDS NOW ONWED BY THE TUSCARORAS, WAS SECURED TO THE SENECAS.

UNDER THE 1786 HARTFORD COMPACT BETWEEN NEW YORK AND MASSACHUSETTS, NEW YORK WAS RECOGNIZED TO HAVE SOVEREIGNTY OVER THOSE LANDS AND MASSACHUSETTS TO OWN THE UNDERLYING FEE TO THOSE LANDS AND THE RIGHT TO PURCHASE THE SENECAS' INTEREST IN THEM. IN 1794, MASSACHUSETTS SOLD THE FEE AND THE RIGHT TO PURCHASE THE SENECAS' RIGHT TO OCCUPY THESE WESTERN NEW YORK LANDS, INCLUDING THE LANDS NOW OWNED BY THE TUSCARORAS, TO ROBERT MORRIS, WHO, IN TURN, SOLD THOSE LANDS AND RIGHTS TO THE HOLLAND LAND COMPANY WITH THE COVENANT THAT HE WOULD BUY OUT THE SENECAS' RIGHTS OF OCCUPANCY FOR AND ON BEHALF OF THE HOLLAND LAND COMPANY. AND AT THE TREATY OF BIG TREE OF 1797 (7 STAT. 601), MORRIS, WITH THE APPROBATION OF THE UNITED STATES, PURCHASED THE SENECAS' RIGHTS OF OCCUPANCY IN THE LANDS HERE IN QUESTION FOR THE HOLLAND LAND COMPANY. THUS THE LANDS IN QUESTION WERE ENTIRELY FREED FROM THE EFFECTS OF ALL THEN EXISTING TREATIES WITH THE INDIANS, AND THE TUSCARORAS' TITLE TO THEIR PRESENT LANDS DERIVES, AS EARLIER STATED, FROM THE HOLLAND LAND COMPANY (SEE NOTE 10 FOR FURTHER DETAILS) AND HAS NEVER SINCE BEEN SUBJECT TO ANY TREATY BETWEEN THE UNITED STATES AND THE TUSCARORAS.

MR. JUSTICE BRENNAN CONCURS IN THE RESULT.

MR. JUSTICE BLACK, WHOM THE CHIEF JUSTICE AND MR. JUSTICE DOUGLAS JOIN, DISSENTING.


THE COURT HOLDS THAT THE FEDERAL POWER ACT (FN1) AUTHORIZES THE TAKING OF 22% (1,383 ACRES) OF THE SINGLE TRACT WHICH THE TUSCARORA INDIAN NATION HAS OWNED AND OCCUPIED AS ITS HOMELAND FOR 150 YEARS. (FN2) ADMITTEDLY THIS TAKING OF SO LARGE A PART OF THE LANDS WILL INTERFERE WITH THE PURPOSE FOR WHICH THIS INDIAN RESERVATION WAS CREATED - A PERMANENT HOME FOR THE TUSCARORAS. I NOT ONLY BELIEVE THAT THE FEDERAL POWER ACT DOES NOT AUTHORIZE THIS TAKING, BUT THAT THE ACT POSITIVELY PROHIBITS IT. MOREOVER, I THINK THE TAKING ALSO VIOLATES THE NATION'S LONG-ESTABLISHED POLICY OF RECOGNIZING AND PRESERVING INDIAN RESERVATIONS FOR TRIBAL USE, AND THAT IT CONSTITUTES A BREACH OF INDIAN TREATIES RECOGNIZED BY CONGRESS SINCE AT LEAST 1794.

WHETHER THE FEDERAL POWER ACT PERMITS THIS CONDEMNATION DEPENDS, IN PART, UPON WHETHER THE TUSCARORA RESERVATION IS A "RESERVATION" WITHIN THE MEANING OF THE ACT. FOR IF IT IS, SEC. 4(E) FORBIDS THE TAKING OF ANY PART OF THE LANDS EXCEPT AFTER A FINDING BY THE FEDERAL POWER COMMISSION THAT THE TAKING "WILL NOT INTERFERE OR BE INCONSISTENT WITH THE PURPOSE FOR WHICH SUCH RESERVATION WAS CREATED OR ACQUIRED ... ." (FN3) THERE IS NO SUCH FINDING HERE. IN FACT, THE COMMISSION FOUND THAT THE INUNDATION OF SO GREAT A PART OF THE TUSCARORA RESERVATION BY THE WATERS OF THE PROPOSED RESERVOIR "WILL INTERFERE AND WILL BE INCONSISTENT WITH THE PURPOSE FOR WHICH SUCH RESERVATION WAS CREATED OR ACQUIRED." 21 F.P.C. 146, 148. IF THESE TUSCARORA HOMELANDS ARE "TRIBAL LANDS EMBRACED WITHIN" AN INDIAN RESERVATION AS USED IN SEC. 3(2) (FN4) THEY CONSTITUTE A "RESERVATION" FOR PURPOSES OF SEC. 4(E), AND THEREFORE THE TAKING HERE IS UNAUTHORIZED BECAUSE THE REQUISITE FINDING COULD NOT BE MADE.

I BELIEVE THE PLAIN MEANING OF THE WORDS USED IN THE ACT, TAKEN ALONE, AND THEIR MEANING IN THE LIGHT OF THE HISTORICAL BACKGROUND AGAINST WHICH THEY MUST BE VIEWED, REQUIRE THE CONCLUSION THAT THESE LANDS ARE A "RESERVATION" ENTITLED TO THE PROTECTIONS OF SEC. 4(E) OF THE ACT. "RESERVATION," AS USED IN SEC. 4(E), IS DEFINED BY SEC. 3(2), WHICH PROVIDES:

"'RESERVATIONS' MEANS NATIONAL FORESTS, TRIBAL LANDS EMBRACED WITHIN INDIAN RESERVATIONS, MILITARY RESERVATIONS, AND OTHER LANDS AND INTERESTS IN LANDS OWNED BY THE UNITED STATES, AND WITHDRAWN, RESERVED, OR WITHHELD FROM PRIVATE APPROPRIATION AND DISPOSAL UNDER THE PUBLIC LAND LAWS; ALSO LANDS AND INTERESTS IN LANDS ACQUIRED AND HELD FOR ANY PUBLIC PURPOSES; BUT SHALL NOT INCLUDE NATIONAL MONUMENTS OR NATIONAL PARKS ... ."

THE PHRASE "TRIBAL LANDS EMBRACED WITHIN INDIAN RESERVATIONS" SURELY INCLUDES THESE TUSCARORA LANDS. THEY ARE TRIBAL LANDS. THEY ARE EMBRACED WITHIN THE TUSCARORA INDIAN NATION'S RESERVATION. THE LANDS HAVE BEEN CALLED A RESERVATION FOR MORE THAN 150 YEARS. THEY HAVE BEEN SO DESCRIBED IN TREATIES, ACTS OF CONGRESS, COURT DECISIONS, INDIAN AGENCY REPORTS, BOOKS, ARTICLES, AND MAPS. IN FACT, SO FAR AS I CAN ASCERTAIN, THEY HAVE NEVER BEEN CALLED ANYTHING ELSE, ANYWHERE OR AT ANY TIME - UNTIL TODAY. EVEN THE COURT OF APPEALS AND THE FEDERAL POWER COMMISSION, AND THE BRIEFS AND RECORD IN THIS COURT, QUITE NATURALLY REFER TO THIS 10-SQUARE-MILE TRACT OF LAND AS AN INDIAN RESERVATION. THE COURT ITSELF SEEMS TO ACCEPT THE FACT THAT THE TUSCARORA NATION LIVES ON A RESERVATION ACCORDING TO (IN ITS WORDS) THE "GENERALLY ACCEPTED STANDARDS AND COMMON UNDERSTANDING" OF THAT TERM.

THE COURT, HOWEVER, DECIDES THAT IN THE FEDERAL POWER ACT CONGRESS DEPARTED FROM THE MEANING UNIVERSALLY GIVEN THE PHRASE "TRIBAL LANDS EMBRACED WITHIN INDIAN RESERVATIONS" AND DEFINED THE PHRASE, THE COURT SAYS, "ARTIFICIALLY." THE COURT BELIEVES THAT THE WORDS "OTHER LANDS ... OWNED BY THE UNITED STATES," WHICH FOLLOW, WERE INTENDED BY CONGRESS TO LIMIT THE PHRASE TO INCLUDE ONLY THOSE RESERVATIONS TO WHICH THE UNITED STATES HAS TECHNICAL LEGAL TITLE. BY THE COURT'S "ARTIFICIAL" INTERPRETATION, THE PHRASE TURNS OUT TO MEAN "TRIBAL LANDS EMBRACED WITHIN INDIAN RESERVATIONS - EXCEPT WHEN 'THE LANDS INVOLVED ARE OWNED IN FEE SIMPLE BY THE INDIANS.'" (FN5)

CREATING SUCH A WHOLLY ARTIFICIAL AND LIMITED DEFINITION, SO NEW AND DISRUPTIVE, IMPOSES A HEAVY BURDEN OF JUSTIFICATION UPON THE ONE WHO ASSERTS IT. WE ARE TOLD THAT MANY TRIBES OWN THEIR RESERVATION LANDS. THE WELL-KNOWN PUEBLOS OF NEW MEXICO OWN SOME 700,000 ACRES OF LAND IN FEE. ALL SUCH RESERVATION LANDS ARE PUT IN JEOPARDY BY THE COURT'S STRAINED INTERPRETATION. THE COURT SUGGESTS NO PLAUSIBLE REASON, OR ANY REASON AT ALL FOR THAT MATTER, WHY CONGRESS SHOULD OR WOULD HAVE SOUGHT ARTIFICIALLY TO PLACE THOSE INDIANS WHO HOLD LEGAL TITLE TO THEIR RESERVATION LANDS IN SUCH A LESS-FAVORED POSITION. (FN6) THE FACT THAT THE TUSCARORA NATION HOLDS TECHNICAL LEGAL TITLE IS FORTUITOUS AND AN ACCIDENTAL CIRCUMSTANCE PROBABLY ATTRIBUTABLE TO THE INDIAN LAND POLICY PREVAILING AT THE EARLY DATE THIS RESERVATION WAS ESTABLISHED. THEIR LANDS, LIKE ALL OTHER INDIAN TRIBAL LANDS, CAN BE SOLD, LEASED OR SUBJECTED TO EASEMENTS ONLY WITH THE CONSENT OF THE UNITED STATES GOVERNMENT. CONGRESS AND GOVERNMENT AGENCIES HAVE ALWAYS TREATED THE TUSCARORA RESERVATION THE SAME AS ALL OTHERS, (FN7) AND THERE IS NO REASON EVEN TO SUSPECT THAT CONGRESS WANTED TO TREAT IT DIFFERENTLY WHEN IT PASSED THE FEDERAL POWER ACT.

IT IS NECESSARY TO ADD NO MORE THAN A WORD ABOUT THE LEGISLATIVE HISTORY OF THIS SECTION WHICH THE COURT RELIES ON. THE COURT POINTS OUT THAT THE HOUSE VERSION OF THE 1920 FEDERAL WATER POWER ACT (NOW CALLED THE FEDERAL POWER ACT) DEFINED "RESERVATIONS" AS MEANING ONLY "LANDS AND INTERESTS IN LANDS OWNED BY THE UNITED STATES." IN THIS DEFINITION OF "RESERVATIONS" THE SENATE INSERTED NEW WORDS WHICH INCLUDED THE PRESENT PHRASE "TRIBAL LANDS EMBRACED WITHIN INDIAN RESERVATIONS." IF THE ONLY INDIAN LANDS CONGRESS SOUGHT TO COVER BY THIS SECTION WERE THOSE TO WHICH THE UNITED STATES HAD TITLE, THE SENATE ADDITION SERVED NO PURPOSE. FOR THE HOUSE BILL COVERED ALL "LANDS ... OWNED BY THE UNITED STATES." THE ONLY REASON FOR THE SENATE ADDITIONS, IT SEEMS TO ME, WAS TO COVER LANDS, LIKE THOSE OF THE TUSCARORA NATION HERE, TITLE TO WHICH WAS NOT IN THE UNITED STATES GOVERNMENT.

THE COURT ALSO UNDERTAKES TO SUPPORT ITS "ARTIFICIAL" DEFINITION OF "TRIBAL LANDS EMBRACED WITHIN INDIAN RESERVATIONS" BY SAYING THAT THE CONGRESS KNEW, BY A PRIOR DECISION OF THIS COURT, THAT IT WAS ACTING UNDER ART. IV, SEC. 3, CL. 2, OF THE CONSTITUTION, WHICH GIVES CONGRESS POWER, AS THE COURT SAYS, "TO DEAL ONLY WITH 'THE TERRITORY OR OTHER PROPERTY BELONGING TO THE UNITED STATES,'" IN THE FIRST PLACE I DO NOT UNDERSTAND HOW THE COURT CAN SAY WITH SUCH ASSURANCE THAT THE CONGRESS WAS ACTING ONLY UNDER THAT CLAUSE, AS THERE IS NO EVIDENCE WHATSOEVER THAT CONGRESS EXPRESSED ITSELF ON THIS MATTER. MOREOVER, IT SEEMS FAR MORE LIKELY TO ME THAT IN THIS PHRASE REGULATING INDIAN TRIBES CONGRESS WAS ACTING UNDER ART. I, SEC. 8, CL. 3, WHICH EMPOWERS CONGRESS "TO REGULATE COMMERCE WITH ... THE INDIAN TRIBES."

EVEN ACCEPTING FOR A MOMENT THE COURT'S "ARTIFICIAL" DEFINITION, I THINK THE UNITED STATES OWNS A SUFFICIENT "INTEREST" IN THESE TUSCARORA HOMELANDS TO MAKE THEM A "RESERVATION" WITHIN THE MEANING OF THE ACT. LANDS EMBRACED WITHIN INDIAN RESERVATIONS"; THE SAME FINDING IS REQUIRED IN ORDER TO TAKE "OTHER ... INTERESTS IN LANDS OWNED BY THE UNITED STATES" WHETHER TRIBAL OR NOT. OR, AGAIN ACCEPTING THE COURT'S CONCEPTION, IF THE PHRASE "TRIBAL LANDS EMBRACED WITHIN INDIAN RESERVATIONS" MUST BE MODIFIED BY THE WORDS WHICH FOLLOW, "LANDS ... OWNED BY THE UNITED STATES," IT MUST ALSO BE MODIFIED BY THE WORDS "INTERESTS IN LANDS OWNED BY THE UNITED STATES," WHICH ALSO FOLLOW. READ THIS WAY, THE SECTION DEFINES "RESERVATIONS" AS TRIBAL LANDS IN WHICH THE UNITED STATES OWNS "INTERESTS." THUS AGAIN A FINDING UNDER SEC. 4(E) IS REQUIRED EVEN UNDER THE COURT'S OWN TECHNICAL APPROACH IF THE UNITED STATES OWNS "INTERESTS" IN THE LANDS. I THINK IT DOES.

CERTAINLY THE WORDS CONGRESS USED, "INTERESTS IN LANDS," ARE NOT SURPLUSAGE; THEY HAVE SOME MEANING AND WERE INTENDED TO ACCOMPLISH SOME PURPOSE OF THEIR OWN. THE UNITED STATES UNDOUBTEDLY CONTROLS (HAS "INTERESTS IN") MANY LANDS IN THIS COUNTRY THAT IT DOES NOT OWN IN FEE SIMPLE. THIS IS SURELY TRUE AS TO ALL INDIAN TRIBAL LANDS, EVEN THOUGH THE INDIANS OWN THE FEE SIMPLE TITLE. (FN8) SUCH LANDS CANNOT BE SOLD OR LEASED WITHOUT THE CONSENT OF THE UNITED STATES GOVERNMENT. THE SECRETARY OF THE INTERIOR TOOK THIS POSITION ABOUT THIS VERY RESERVATION IN 1912 WHEN THE TUSCARORAS DESIRED TO LEASE A PART OF THEIR LANDS TO PRIVATE INDIVIDUALS FOR LIMESTONE QUARRYING. (FN9) AND, OF COURSE, THE LONG-ACCEPTED CONCEPT OF A GUARDIAN-WARD RELATIONSHIP BETWEEN THE UNITED STATES AND ITS INDIANS, WITH ALL THE REQUIREMENTS OF FAIR DEALING AND PROTECTION THAT THIS INVOLVES, MEANS THAT THE INDIANS ARE NOT FREE TO TREAT THEIR LANDS AS WHOLLY THEIR OWN. (FN10) ANYONE DOUBTING THE EXTENT OF OWNERSHIP INTEREST IN THESE LANDS BY THE UNITED STATES WOULD HAVE THAT DOUBT RAPIDLY REMOVED SHOULD HE TAKE A DEED FROM THE TUSCARORA NATION WITHOUT THE CONSENT OF THE GOVERNMENT. (FN11) I CANNOT AGREE, THEREFORE, THAT THIS ALL BUT TECHNICAL FEE OWNERSHIP WHICH THE UNITED STATES HAS IN THESE LANDS IS INADEQUATE TO CONSTITUTE THE KIND OF "INTERESTS IN LANDS OWNED BY THE UNITED STATES" WHICH REQUIRES A SEC. 4(E) FINDING BEFORE CONDEMNATION.

AFTER THE COURT CONCLUDES THAT BECAUSE OF ITS INTERPRETATION OF THE DEFINITION OF "RESERVATIONS" IN SEC. 3(2) A FINDING IS NOT REQUIRED BY SEC. 4(E) TO TAKE THE TUSCARORA LANDS, IT GOES ON TO FIND THE NECESSARY CONGRESSIONAL AUTHORIZATION TO TAKE THESE LANDS IN THE GENERAL CONDEMNATION PROVISIONS OF SEC. 21. 16 U.S.C. SEC. 814. I BELIEVE THAT THIS IS AN INCORRECT INTERPRETATION OF THE GENERAL POWER TO CONDEMN UNDER SEC. 21, BOTH BECAUSE CONGRESS SPECIFICALLY PROVIDED FOR THE TAKING OF ALL INDIAN RESERVATION LANDS IT WANTED TAKEN IN OTHER CONTRARY TO THE MANNER IN WHICH CONGRESS HAS TRADITIONALLY GONE ABOUT THE TAKING OF INDIAN LANDS - SUCH AS CONGRESS HERE CAREFULLY PRESCRIBED IN SEC. 4(E). CONGRESS HAS BEEN CONSISTENT IN GENERALLY EXERCISING THIS POWER TO TAKE INDIAN LANDS ONLY IN ACCORD WITH PRIOR TREATIES, ONLY WHEN THE INDIANS THEMSELVES CONSENT TO BE MOVED, AND ONLY BY ACTS WHICH EITHER SPECIFICALLY REFER TO INDIANS OR BY THEIR TERMS MUST INCLUDE INDIAN LANDS. NONE OF THESE CONDITIONS IS SATISFIED HERE IF SEC. 21 IS TO BE RELIED UPON. THE SPECIFIC AND DETAILED PROVISIONS OF SEC. 10(E), 16 U.S.C. SEC. 803(E), UPON WHICH THE COURT RELIES, ONLY EMPHASIZE TO ME THE KIND OF CARE CONGRESS ALWAYS TAKES TO PROTECT THE JUST CLAIMS OF INDIANS TO RESERVATIONS LIKE THIS ONE.

THE CASES WHICH THE COURT CITES IN ITS OPINION DO NOT JUSTIFY THE BROAD MEANING READ INTO SEC. 21. MANY OF THOSE CASES DEAL WITH TAXATION - FEDERAL AND STATE. THE FACT THAT INDIANS ARE SOMETIMES TAXED LIKE OTHER CITIZENS DOES NOT EVEN REMOTELY INDICATE THAT CONGRESS HAS WEAKENED IN ANY WAY ITS POLICY TO PRESERVE "TRIBAL LANDS EMBRACED WITHIN INDIAN RESERVATIONS." MOREOVER, CASES DEALING WITH INDIVIDUALS WHO ARE NOT INDIANS ARE NOT APPLICABLE TO TRIBAL RESERVATIONS. FOR EXAMPLE, SHAW V. GIBSON-ZAHNISER OIL CORP., 276 U.S. 575, CITED BY THE COURT, DID NOT INVOLVE TRIBAL LANDS. THAT CASE ONLY HELD THAT A STATE MAY TAX THE PRODUCTION OF AN OIL COMPANY EVEN THOUGH IT WAS DERIVED FROM OIL COMPANY LANDS LEASED FROM AN INDIAN. THE OWNER THERE WAS AN INDIVIDUAL INDIAN, NOT A TRIBE, AND THE LANDS WERE NOT AND NEVER HAD BEEN A PART OF AN INDIAN RESERVATION, BUT RATHER HAD BEEN PURCHASED FOR THIS SINGLE INDIAN WITH THE ROYALTIES HE OBTAINED FROM HIS OWN ORIGINAL RESTRICTED ALLOTED LANDS. IN HENKEL V. UNITED STATES, 237 U.S. 43, WHICH INVOLVED THE TAKING OF INDIAN LANDS FOR THE VAST WESTERN RECLAMATION PROJECT, THE COURT NOT ONLY FOUND THAT IT HAD BEEN "WELL KNOWN TO CONGRESS" THAT INDIAN LANDS WOULD HAVE TO BE TAKEN, 237 U.S., AT 50, BUT THE TREATY WITH THE INDIANS INVOLVED IN THAT CASE CONTAINED A SPECIFIC CONSENT BY THE INDIANS TO SUCH A TAKING. 29 STAT. 356, QUOTED 237 U.S., AT 48 49. THERE WAS NO PROVISION EVEN RESEMBLING THIS IN THE TREATY OF 1794 WITH THE TUSCARORAS. OTHER CASES RELIED ON BY THE COURT, SUCH AS SPALDING V. CHANDLER, 160 U.S. 394, AND CHEROKEE NATION V. SOUTHERN KANSAS R. CO., 135 U.S. 641, ALL INVOLVED STATUTES THAT MADE IT CLEAR THAT CONGRESS WAS WELL AWARE IT WAS AUTHORIZING THE TAKING OF INDIANS' LANDS - UNLIKE THE HISTORY OF SEC. 21 OF THE FEDERAL POWER ACT AND THE 1957 NIAGARA POWER ACT, 71 STAT. 401, 16 U.S.C. SECS. 836-836A, INVOLVED HERE.

ALL THAT I HAVE SAID SO FAR RELATES TO WHAT THE COURT CALLS THE "PLAIN WORDS" OF THE STATUTE. I INTERPRET THESE "PLAIN WORDS" DIFFERENTLY THAN THE COURT. BUT THERE ARE OTHER MORE FUNDAMENTAL AND DECISIVE REASONS WHY I DISAGREE WITH THE COURT'S INTERPRETATION OF THE FEDERAL POWER ACT AS IT RELATES TO INDIANS. THE PROVISIONS IN SEC. 4(E) WHICH PROTECT INDIAN RESERVATIONS AGAINST DESTRUCTION BY CONDEMNATION CANNOT BE PROPERLY CONSTRUED UNLESS CONSIDERED AS A PART OF A BODY OF INDIAN LAWS BUILT UP THROUGHOUT THIS NATION'S HISTORY, AND EXTENDING BACK EVEN TO THE ARTICLES OF CONFEDERATION. IT IS NECESSARY TO SUMMARIZE BRIEFLY A PART OF THAT HISTORY.

THE EXPERIENCE OF THE TUSCARORA NATION ILLUSTRATES THIS HISTORY AS WELL AS THAT OF ANY INDIAN TRIBE. (FN12) WHEN THIS COUNTRY WAS DISCOVERED THE TUSCARORAS LIVED AND OWNED THEIR HOMELANDS IN THE AREA THAT LATER BECAME NORTH CAROLINA. EARLY SETTLERS WANTED THEIR LANDS. THE TUSCARORAS DID NOT WANT TO GIVE THEM UP. NUMEROUS CONFLICTS AROSE BECAUSE OF THIS CLASH OF DESIRES. FINALLY, ABOUT 1710, THERE WAS A WAR BETWEEN THE TUSCARORAS AND THE COLONISTS IN NORTH AND SOUTH CAROLINA. THE INDIANS WERE ROUTED. A MAJORITY OF THEIR WARRIORS WERE KILLED. HUNDREDS OF THEIR MEN, WOMEN AND CHILDREN WERE CAPTURED AND SOLD INTO SLAVERY. NEARLY ALL OF THE REMAINDER OF THE TRIBE FLED. THEY FOUND A HOME IN DISTANT NEW YORK WITH THE IROQUOIS CONFEDERATION OF NATIONS. WITH THEIR ACCEPTANCE INTO THE CONFEDERATION ABOUT 1720 IT BECAME KNOWN AS THE SIX NATIONS. HISTORICAL ACCOUNTS INDICATE THAT ABOUT 1780 THOSE TUSCARORAS WHO HAD SUPPORTED AMERICA IN THE REVOLUTION WERE COMPELLED TO LEAVE THEIR FIRST RESIDENCE IN NEW YORK BECAUSE OF THE HOSTILITY OF INDIANS WHO HAD FOUGHT WITH THE BRITISH AGAINST THE COLONIES. (FN13) THEY MIGRATED TO THE VILLAGE OF LEWISTON, NEW YORK, NEAR NIAGARA FALLS AND SETTLED IN THAT AREA AS THEIR NEW HOME. THEY HAVE REMAINED THERE EVER SINCE - NEARLY 180 YEARS.

WHEN THEIR LEGAL RIGHT TO THIS LAND CAME INTO QUESTION ABOUT 1800 THE SENECA INDIANS AND THE HOLLAND LAND COMPANY BOTH "THOUGHT THEIR CLAIM SO JUST" (FN14) THAT THEY GAVE THE TUSCARORA NATION DEEDS TO THREE SQUARE MILES OF THE AREA THEY HAD BEEN OCCUPYING FOR ABOUT 20 YEARS. WITH THE ASSISTANCE OF PRESIDENTS WASHINGTON AND JEFFERSON AND THE CONGRESS, THE TUSCARORAS WERE ABLE, THROUGH THE SECRETARY OF WAR, TO SELL THEIR VAST NORTH CAROLINA LANDS FOR $15,000. WITH THIS MONEY, HELD BY THE SECRETARY OF WAR AS TRUSTEE, ADDITIONAL LANDS ADJOINING THOSE RECEIVED FROM THE SENECA INDIANS AND THE HOLLAND LAND COMPANY WERE OBTAINED FOR THE TUSCARORA NATION AND THE TITLE HELD IN TRUST BY THE SECRETARY OF WAR FROM 1804 TO 1809. THE SECRETARY SUPERVISED THE PAYMENTS TO THE HOLLAND LAND COMPANY, FROM WHICH THE ADDITIONAL 4,329 ACRES WERE OBTAINED, AND WHEN PAYMENTS WERE COMPLETED HE CONVEYED THESE LANDS TO THE TUSCARORA NATION. (FN15) THE 1,383 ACRES OF THE TUSCARORA RESERVATION INVOLVED TODAY IS A PART OF THIS PURCHASE. DESPITE ALL THIS AND THE GOVERNMENT'S CONTINUING GUARDIANSHIP OVER THESE INDIANS AND THEIR LANDS THROUGHOUT THE YEARS THE COURT ATTEMPTS TO JUSTIFY THIS TAKING ON THE SINGLE GROUND THAT THE INDIANS, NOT THE UNITED STATES GOVERNMENT, NOW OWN THE FEE SIMPLE TITLE TO THIS PROPERTY.

IN 1838 THE GOVERNMENT MADE A TREATY WITH THE TUSCARORAS UNDER WHICH THEY WERE TO BE REMOVED TO OTHER PARTS OF THE UNITED STATES. (FN16) THE REMOVAL WAS TO BE CARRIED OUT UNDER THE AUTHORITY OF A CONGRESSIONAL ACT OF 1830, 4 STAT. 411, WHICH PROVIDED A PROGRAM FOR REMOVING THE INDIANS FROM THE EASTERN UNIRED STATES TO THE WEST. ASSURE THE TRIBE OR NATION WITH WHICH THE EXCHANGE IS MADE, THAT THE UNITED STATES WILL FOREVER SECURE AND GUARANTY TO THEM, AND THEIR HEIRS OR SUCCESSORS, THE COUNTRY SO EXCHANGED WITH THEM ... ." THE SAME ACT ALSO PROVIDED "THAT NOTHING IN THIS ACT CONTAINED SHALL BE CONSTRUED AS AUTHORIZING OR DIRECTING THE VIOLATION OF ANY EXISTING TREATY BETWEEN THE UNITED STATES AND ANY OF THE INDIAN TRIBES." ID., SEC. 7.

THE TUSCARORA NATION THEN HAD SUCH A TREATY WITH THE UNITED STATES, WHICH HAD BEEN IN EXISTENCE SINCE 1794 AND IS STILL RECOGNIZED BY CONGRESS TODAY. (FN17) THE TREATY WAS MADE WITH ALL THE SIX NATIONS, AT A TIME WHEN THE TUSCARORA NATION HAD BEEN A MEMBER FOR OVER 70 YEARS, AND ONE OF THEIR REPRESENTATIVES SIGNED THE TREATY. (FN18) IN ARTICLE III OF THE TREATY THE UNITED STATES GOVERNMENT MADE THIS SOLEMN PROMISE:

"NOW, THE UNITED STATES ACKNOWLEDGE ALL THE LAND WITHIN THE AFOREMENTIONED BOUNDARIES, TO BE THE PROPERTY OF THE SENEKA NATION; AND THE UNITED STATES WILL NEVER CLAIM THE SAME, NOR DISTURB THE SENEKA NATION, NOR ANY OF THE SIX NATIONS, OR OF THEIR INDIAN FRIENDS RESIDING THEREON AND UNITED WITH THEM, IN THE FREE USE AND ENJOYMENT THEREOF: BUT IT SHALL REMAIN THEIRS, UNTIL THEY CHOOSE TO SELL THE SAME TO THE PEOPLE OF THE UNITED STATES, WHO HAVE THE RIGHT TO PURCHASE."

THIS ARTICLE OF THE 1794 TREATY SUBSTANTIALLY REPEATED THE PROMISE GIVEN THE TUSCARORAS IN THE PRIOR 1784 TREATY, 7 STAT. 15, MADE BEFORE OUR CONSTITUTION WAS ADOPTED, THAT "THE ONEIDA AND TUSCARORA NATIONS SHALL BE SECURED IN THE POSSESSION OF THE LANDS ON WHICH THEY ARE SETTLED."


OF COURSE IT IS TRUE THAT IN 1794, WHEN THE TREATY WAS SIGNED, THE TUSCARORA NATION DID NOT YET HAVE THE TECHNICAL LEGAL TITLE TO THAT PART OF THE RESERVATION WHICH THE GOVERNMENT WAS LATER ABLE TO OBTAIN FOR IT. BUT THE SOLEMN PLEDGE OF THE UNITED STATES TO ITS WARDS IS NOT TO BE CONSTRUED LIKE A MONEY-LENDER'S MORTGAGE. UP TO THIS TIME IT HAS ALWAYS BEEN THE ESTABLISHED RULE THAT THIS COURT WOULD GIVE TREATIES WITH THE INDIANS AN ENLARGED INTERPRETATION; ONE THAT WOULD ASSURE THEM BEYOND ALL DOUBT THAT THIS GOVERNMENT DOES NOT ENGAGE IN SHARP PRACTICES WITH ITS WARDS. (FN19) THIS VERY PRINCIPLE OF INTERPRETATION WAS APPLIED IN THE CASE OF THE NEW YORK INDIANS, 5 WALL. 761, 768, WHERE THE COURT SAID, ABOUT THIS TREATY: "IT HAS ALREADY BEEN SHOWN THAT THE UNITED STATES HAVE ACKNOWLEDGED THE RESERVATIONS TO BE THE PROPERTY OF THE SENECA NATION - THAT THEY WILL NEVER CLAIM THEM NOR DISTURB THIS NATION IN THEIR FREE USE AND ENJOYMENT, AND THAT THEY SHALL REMAIN THEIRS UNTIL THEY CHOOSE TO SELL THEM. THESE ARE THE GUARANTEES GIVEN BY THE UNITED STATES, AND WHICH HER FAITH IS PLEDGED TO UPHOLD."

AFTER THE TREATY OF 1838 WAS SIGNED, IN WHICH THE TUSCARORAS AGREED TO GO WEST, THEY DECIDED NOT TO DO SO, AND THE GOVERNMENT RESPECTED THEIR OBJECTIONS AND LEFT THEM WITH THEIR LAND. THEY HAVE, SINCE THAT TIME, HELD IT AS OTHER INDIANS HAVE THROUGHOUT THE NATION. THIS HAS BEEN IN ACCORD WITH THE SETTLED GENERAL POLICY TO PRESERVE SUCH RESERVATIONS AGAINST ANY KIND OF TAKING, WHETHER BY PRIVATE CITIZENS OR GOVERNMENT, THAT MIGHT RESULT IN DEPRIVING INDIAN TRIBES OF THEIR HOMELANDS AGAINST THEIR WILL. (FN20) PRESIDENT JACKSON, IN 1835, EXPLAINED THE PURPOSE OF THE REMOVAL AND RESERVATION PROGRAM AS MEANING THAT, "THE PLEDGE OF THE UNITED STATES HAS BEEN GIVEN BY CONGRESS THAT THE COUNTRY DESTINED FOR THE RESIDENCE OF THIS PEOPLE SHALL BE FOREVER 'SECURED AND GUARANTEED TO THEM.'" (FN21) THIS POLICY WAS SO WELL SETTLED THAT WHEN THE MISSOURI COMPROMISE BILL WAS BEING DISCUSSED IN CONGRESS IN 1854 TEXAS SENATOR SAM HOUSTON USED THIS PICTURESQUE LANGUAGE TO DESCRIBE THE GOVERNMENT'S PROMISE TO THE INDIANS:

"AS LONG AS WATER FLOWS, OR GRASS GROWS UPON THE EARTH, OR THE SUN RISES TO SHOW YOUR PATHWAY, OR YOU KINDLE YOUR CAMP FIRES, SO LONG SHALL YOU BE PROTECTED BY THIS GOVERNMENT, AND NEVER AGAIN REMOVED FROM YOUR PRESENT HABITATIONS." (FN22)

IT WAS TO CARRY OUT THESE SACRED PROMISES MADE TO PROTECT THE SECURITY OF INDIAN RESERVATIONS THAT CONGRESS ADOPTED SEC. 4(E) WHICH FORBIDS THE TAKING OF AN INDIAN RESERVATION FOR A POWER PROJECT IF IT WILL "INTERFERE ... WITH THE PURPOSE FOR WHICH SUCH RESERVATION WAS CREATED OR ACQUIRED ... ." BUT NO SUCH FINDING WAS MADE OR COULD BE MADE HERE.

THERE CAN BE NO DOUBT AS TO THE IMPORTANCE OF THIS POWER PROJECT. IT WILL BE ONE OF THE LARGEST IN THIS COUNTRY AND PROBABLY WILL HAVE COST OVER $700,000,000 WHEN IT IS COMPLETED. IT IS TRUE THAT IT WILL UNDOUBTEDLY COST MORE TO BUILD A PROPER RESERVOIR WITHOUT THE TUSCARORA LANDS, AND THAT THERE HAS ALREADY BEEN SOME DELAY BY REASON OF THIS CONTROVERSY. THE USE OF LANDS OTHER THAN THOSE OF THE TRIBE WILL CAUSE THE ABANDONMENT OF MORE HOMES AND THE REMOVAL OF MORE PEOPLE. IF THE DECISION IN THIS CASE DEPENDED EXCLUSIVELY UPON COST AND INCONVENIENCE, THE AUTHORITY UNDOUBTEDLY WOULD HAVE BEEN JUSTIFIED IN USING THE TUSCARORA LANDS. BUT THE FEDERAL POWER ACT REQUIRES FAR MORE THAN THAT TO JUSTIFY BREAKING UP THIS INDIAN RESERVATION.

THESE INDIANS HAVE A WAY OF LIFE WHICH THIS GOVERNMENT HAS SEEN FIT TO PROTECT, IF NOT ACTUALLY TO ENCOURAGE. COGENT ARGUMENTS CAN BE MADE THAT IT WOULD BE BETTER FOR ALL CONCERNED IF INDIANS WERE TO ABANDON THEIR OLD CUSTOMS AND HABITS, AND BECOME INCORPORATED IN THE COMMUNITIES WHERE THEY RESIDE. THE FACT REMAINS, HOWEVER, THAT THEY HAVE NOT DONE THIS AND THAT THEY HAVE CONTINUED THEIR TRIBAL LIFE WITH TRUST IN A PROMISE OF SECURITY FROM THIS GOVERNMENT.

OF COURSE, CONGRESS HAS POWER TO CHANGE THIS TRADITIONAL POLICY WHEN IT SEES FIT. BUT WHEN SUCH CHANGES HAVE BEEN MADE CONGRESS HAS ORDINARILY BEEN SCRUPULOUSLY CAREFUL TO SEE THAT NEW CONDITIONS LEAVE THE INDIANS SATISFIED. UNTIL CONGRESS HAS A CHANCE TO EXPRESS ITSELF FAR MORE CLEARLY THAN IT HAS HERE THE TUSCARORAS ARE ENTITLED TO KEEP THEIR RESERVATION. IT WOULD BE FAR BETTER TO LET THE POWER AUTHORITY PRESENT THE MATTER TO CONGRESS AND REQUEST ITS CONSENT TO TAKE THESE LANDS. IT IS NOT TOO LATE FOR IT TO DO SO NOW. IF, AS HAS BEEN ARGUED HERE, CONGRESS HAS ALREADY IMPLIEDLY AUTHORIZED THE TAKING, THERE CAN BE NO REASON WHY IT WOULD NOT PASS A MEASURE AT ONCE CONFIRMING ITS AUTHORIZATION. IT HAS BEEN KNOWN TO PASS A JOINT RESOLUTION IN ONE DAY WHERE THIS COURT INTERPRETED AN ACT IN A WAY IT DID NOT LIKE. SEE COMMISSIONER V. ESTATE OF CHURCH, 335 U.S. 632, 639-640. SUCH ACTION WOULD SIMPLY PUT THIS QUESTION OF AUTHORIZATION BACK INTO THE HANDS OF THE LEGISLATIVE DEPARTMENT OF THE GOVERNMENT WHERE THE CONSTITUTION WISELY REPOSED IT. (FN23)

IT MAY BE HARD FOR US TO UNDERSTAND WHY THESE INDIANS CLING SO TENACIOUSLY TO THEIR LANDS AND TRADITIONAL TRIBAL WAY OF LIFE. (FN24) THE RECORD DOES NOT LEAVE THE IMPRESSION THAT THE LANDS OF THEIR RESERVATION ARE THE MOST FERTILE, THE LANDSCAPE THE MOST BEAUTIFUL OR THEIR HOMES THE MOST SPLENDID SPECIMENS OF ARCHITECTURE. BUT THIS IS THEIR HOME - THEIR ANCESTRAL HOME. THERE, THEY, THEIR CHILDREN, AND THEIR FOREBEARS WERE BORN. THEY, TOO, HAVE THEIR MEMORIES AND THEIR LOVES. SOME THINGS ARE WORTH MORE THAN MONEY AND THE COSTS OF A NEW ENTERPRISE.

THERE MAY BE INSTANCES IN WHICH CONGRESS HAS BROKEN FAITH WITH THE INDIANS, ALTHOUGH EXAMPLES OF SUCH ACTION HAVE NOT BEEN POINTED OUT TO US. WHETHER IT HAS DONE SO BEFORE NOW OR NOT, HOWEVER, I AM NOT CONVINCED THAT IT HAS DONE SO HERE. I REGRET THAT THIS COURT IS TO BE THE GOVERNMENTAL AGENCY THAT BREAKS FAITH WITH THIS DEPENDENT PEOPLE. GREAT NATIONS, LIKE GREAT MEN, SHOULD KEEP THEIR WORD.

FN1 41 STAT. 1063, AS AMENDED, 16 U.S.C. SECS. 791A-828C.

FN2 WHILE THE PETITIONERS HAVE ARGUED THAT CONGRESS AUTHORIZED THIS TAKING IN THE 1957 NIAGARA POWER ACT, 71 STAT. 401, 16 U.S.C. SECS. 836 836A, THE COURT DOES NOT ACCEPT THIS ARGUMENT. NEITHER DO I. THERE IS ABSOLUTELY NO EVIDENCE THAT CONGRESS WAS IN ANY WAY AWARE THAT THESE TUSCARORA LANDS WOULD BE REQUIRED BY THE NIAGARA POWER PROJECT. THE PETITIONERS HAVE ALSO ARGUED THAT CONGRESS IMPLIEDLY AUTHORIZED THIS TAKING IN THE 1957 ACT BECAUSE IN FACT THE TUSCARORA LANDS ARE INDISPENSABLE TO THE NIAGARA POWER PROJECT. BUT THE RECORD SHOWS THAT THE RESERVATION LANDS ARE NOT INDISPENSABLE. THE FEDERAL POWER COMMISSION FIRST FOUND THAT "OTHER LANDS ARE AVAILABLE." 19 F.P.C. 186, 188. AND SEE 105 U.S. APP. D.C. 146, 151, 265 F.2D 338, 343. ON REMAND THE COMMISSION REFUSED TO FIND THAT THE INDIAN LANDS WERE INDISPENSABLE, ALTHOUGH IT DID FIND THAT USE OF OTHER LANDS WOULD BE MUCH MORE EXPENSIVE. 21 F.P.C. 146. AND SEE 21 F.P.C. 273, 275. THAT OTHER LANDS ARE MORE EXPENSIVE IS HARDLY PROOF THAT THE TUSCARORA LANDS ARE INDISPENSABLE TO THIS $700,000,000 PROJECT.

FN3 SECTION 4(E) CONTAINS THE GENERAL GRANT OF POWER FOR THE FEDERAL POWER COMMISSION TO ISSUE LICENSES FOR FEDERAL POWER PROJECTS. THE PART THAT IS OF CRUCIAL SIGNIFICANCE HERE READS:

"LICENSES SHALL BE ISSUED WITHIN ANY RESERVATION ONLY AFTER A FINDING BY THE COMMISSION THAT THE LICENSE WILL NOT INTERFERE OR BE INCONSISTENT WITH THE PURPOSE FOR WHICH SUCH RESERVATION WAS CREATED OR ACQUIRED, AND SHALL BE SUBJECT TO AND CONTAIN SUCH CONDITIONS AS THE SECRETARY OF THE DEPARTMENT UNDER WHOSE SUPERVISION SUCH RESERVATION FALLS SHALL DEEM NECESSARY FOR THE ADEQUATE PROTECTION AND UTILIZATION OF SUCH RESERVATION ... ."

TITLE 16 U.S.C. SEC. 797(E), ENACTED AS SEC. 4(D) IN THE FEDERAL WATER POWER ACT OF 1920, 41 STAT. 1063, WAS RE-ENACTED IN THE 1935 AMENDMENTS, 49 STAT. 838, AS SEC. 4(E) AND IS REFERRED TO AS SUCH THROUGHOUT.

FN4 SECTION 3, 16 U.S.C. SEC. 796, IS THE GENERAL DEFINITIONS WATER POWER ACT OF 1920, 41 STAT. 1063. SECTION 3(2) DEFINES THE TERM "RESERVATIONS."

FN5 THE COURT'S OPINION STATES: "INASMUCH AS THE LANDS INVOLVED ARE OWNED IN FEE SIMPLE BY THE TUSCARORA INDIAN NATION ... WE HOLD THAT THEY ARE NOT WITHIN A 'RESERVATION' ... ."

FN6 IN UNITED STATES V. CANDELARIA, 271 U.S. 432, 440, AND UNITED STATES V. SANDOVAL, 231 U.S. 28, 39, THIS COURT HAS HELD THAT THE PUEBLOS' FEE SIMPLE OWNERSHIP OF THEIR LANDS HAS NO EFFECT WHATSOEVER ON THE UNITED STATES' RIGHTS AND RESPONSIBILITIES TOWARDS THESE INDIANS AND THEIR LANDS. SEE THE NEW YORK INDIANS, 5 WALL. 761, 767, FOR A SIMILAR HOLDING AS TO SENECA INDIAN LANDS IN NEW YORK GOVERNED BY THE SAME TREATY UNDER WHICH THE TUSCARORAS ASSERT THEIR RIGHTS IN THIS CASE. AND SEE ALSO UNITED STATES V. HELLARD, 322 U.S. 363, 366 ("THE GOVERNMENTAL INTEREST ... IS AS CLEAR AS IT WOULD BE IF THE FEE WERE IN THE UNITED STATES"); MINNESOTA V. UNITED STATES, 305 U.S. 382; HECKMAN V. UNITED STATES, 224 U.S. 413.

FN7 SEE, E.G., REPORT OF THE COMMISSIONER OF INDIAN AFFAIRS, H.R. EXEC. DOC. NO. 1, PT. 5, VOL. I, 45TH CONG., 2D SESS. 397, 558-564 (1877). SEE ALSO 64 STAT. 845, 25 U.S.C. SEC. 233, WHICH SPECIFICALLY SUBJECTS ALL NEW YORK TRIBES TO REV. STAT. SEC. 2116 (1875), 25 U.S.C. SEC. 177, WHICH BANS ALIENATION OF THEIR LANDS WITHOUT THE CONSENT OF CONGRESS. AND SEE GENERALLY NOTES 6, SUPRA, 9, 11, 16, 17, 20, INFRA.

FN8 THE COURT OF APPEALS HELD THE UNITED STATES HAD AN ADEQUATE SEC. 3(2) "INTEREST IN" THE TUSCARORA RESERVATION TO REQUIRE A SEC. 4(E) FINDING. 105 U.S. APP. D.C. 146, 150, 265 F.2D 338, 342. SEE NOTES 6, SUPRA, AND 16, INFRA.

FN9 SEE 51 CONG. REC. 11659-11660, 14561-14562. AND SEE NOTE 16, INFRA.

FN10 SEE, E.G., CHEROKEE NATION V. SOUTHERN KANSAS R. CO., 135 U.S. 641, 657; ELK V. WILKINS, 112 U.S. 94, 99; EX PARTE CROW DOG, 109 U.S. 556, 569; CHEROKEE NATION V. GEORGIA, 5 PET. 1, 17. SEE ALSO UNITED STATES V. CANDELARIA, 271 U.S. 432, 442, WHERE THIS COURT POINTED OUT THAT THE SAME CONCEPT HAD APPLIED UNDER SPANISH AND MEXICAN LAW. AND SEE ALSO UNITED STATES V. KAGAMA, 118 U.S. 375, 384 ("DUTY OF PROTECTION"), AND CHIEF JUSTICE MARSHALL'S LEADING OPINION IN JOHNSON V. M'INTOSH, 8 WHEAT. 543, 591 ("INDIANS ARE TO BE PROTECTED ... IN THE POSSESSION OF THEIR LANDS").

FN11 IN UNITED STATES V. CANDELARIA, 271 U.S. 432, FOR EXAMPLE, THIS COURT HELD THAT THE UNITED STATES COULD SET ASIDE A DEED FROM THE PUEBLOS OF LANDS TO WHICH THE INDIANS HAD FEE SIMPLE TITLE, EVEN THOUGH THE ISSUE IN THE CASE HAD BEEN SETTLED BY OTHERWISE APPLICABLE PRINCIPLES OF RES JUDICATA IN PRIOR LITIGATION TO WHICH THE INDIANS, BUT NOT THE UNITED STATES, HAD BEEN A PARTY. SEE NOTE 9, SUPRA.

FN12 FOR GENERAL DISCUSSIONS OF THE TUSCARORAS' HISTORY SEE HODGE (EDITOR), HANDBOOK OF AMERICAN INDIANS (1910), PT. 2, 842-853, SMITHSONIAN INSTITUTION BUREAU OF AMERICAN ETHNOLOGY, BULLETIN 30, H.R. DOC. NO. 926, PART 2, 59TH CONG., 1ST SESS.; COHEN, HANDBOOK OF FEDERAL INDIAN LAW (1941), 423; MORGAN, LEAGUE OF THE IROQUOIS (1904), I, 23, 42, 93, II, 77, 187, 305; CUSICK, ANCIENT HISTORY OF THE SIX NATIONS (1848), 31-35; H.R. DOC. NO. 1590, 63D CONG., 3D SESS. 7, 11-15 (1915); H.R. EXEC. DOC. NO. 1, PT. 5, VOL. I, 45TH CONG., 2D SESS. 562-563 (1877). AND SEE STATEMENTS IN NEW YORK INDIANS V. UNITED STATES, 30 CT. CL. 413 (1895); TUSCARORA NATION OF INDIANS V. POWER AUTHORITY OF NEW YORK, 164 F. SUPP. 107 (D.C.W.D.N.Y. 1958); PEOPLE EX REL. CUSICK V. DALY, 212 N.Y. 183, 190, 105 N.E. 1048, 1050 (1914).

FN13 SEE HANDBOOK OF AMERICAN INDIANS, OP. CIT., SUPRA, NOTE 12, AT 848; WILSON, APOLOGIES TO THE IROQUOIS (1960), 135.

FN14 LETTER FROM THEOPHILE CAZENOVE TO JOSEPH ELLICOTT, MAY 10, 1798, 1 BINGHAM (EDITOR), HOLLAND LAND COMPANY'S PAPERS: REPORTS OF JOSEPH ELLICOTT (BUFFALO HIST. SOC. PUB. VOL. 32, 1937) 21, 23.

FN15 IN ADDITION TO THE GENERAL HISTORIES CITED, NOTE 12, SUPRA, THIS PARTICULAR TRANSACTION IS DESCRIBED IN VARIOUS LETTERS AND SPEECHES OF THE TUSCARORAS AND THE SECRETARY OF WAR. SEE LETTERS SENT BY THE SECRETARY OF WAR RELATING TO INDIAN AFFAIRS (NATIONAL ARCHIVES, RECORD GROUP 75, INTERIOR BRANCH), VOL. A, 18-19, 22-23, 113-114, 117 119, 147-148, 402, 425-426, 438-439, VOL. B, 29, 274, 421; 6 BUFFALO HIST. SOC. PUB. 221; AND LETTER FROM ERASTUS GRANGER TO SECRETARY OF WAR HENRY DEARBORN, JULY 20, 1804, IN BUFFALO HIST. SOC. MANUSCRIPT FILES. THE DEEDS ARE RECORDED IN THE NIAGARA COUNTY CLERK'S OFFICE, LOCKPORT, NEW YORK, NOV. 21, 1804, LIBER B, PP. 2-7; JAN. 2, 1809, LIBER A, P. 5. "IN 1804 CONGRESS AUTHORIZED THE SECRETARY OF WAR TO PURCHASE ADDITIONAL LAND FOR THESE INDIANS." FROM A DEPARTMENT OF INTERIOR LETTER, H.R. DOC. NO. 1590, 63D CONG., 3D SESS. 7. AND SEE THE COURT'S NOTE 10, AND FELLOWS V. BLACKSMITH, 19 HOW. 366.

FN16 TREATY OF JANUARY 15, 1838, 7 STAT. 550, 554 (ARTICLE 14, "SPECIAL PROVISIONS FOR THE TUSCARORAS").

THE INTEREST OF THE GOVERNMENT IN INDIAN LANDS WAS A PART OF THE LAW OF SPAIN, MEXICO, GREAT BRITAIN AND OTHER EUROPEAN POWERS DURING PRE COLONIAL DAYS. UNITED STATES V. CANDELARIA, 271 U.S. 432, 442; UNITED STATES V. KAGAMA, 118 U.S. 375, 381; WORCESTER V. GEORGIA, 6 PET. 515, 551-552; CHEROKEE NATION V. GEORGIA, 5 PET. 1, 17-18. THE ORIGINAL ARTICLES OF CONFEDERATION PROVIDED FOR CONGRESSIONAL CONTROL OF INDIAN AFFAIRS IN ARTICLE 9. A SIMILAR PROVISION IS IN THE COMMERCE CLAUSE OF THE PRESENT CONSTITUTION. ONE OF THE FIRST ACTS OF THE NEW CONGRESS WAS THE SO-CALLED NON-INTERCOURSE ACT OF JULY 22, 1790, 1 STAT. 137, WHICH PROVIDED, IN SEC. 4, "THAT NO SALE OF LANDS MADE BY ANY INDIANS ... SHALL BE VALID ... UNLESS THE SAME SHALL BE MADE AND DULY EXECUTED AT SOME PUBLIC TREATY, HELD UNDER THE AUTHORITY OF THE UNITED STATES." THE SIMILAR PROVISION IS PRESENTLY FOUND IN 25 U.S.C. SEC. 177, AS MODIFIED BY REV. STAT. SEC. 2079, 25 U.S.C. SEC. 71.

FN17 TREATY OF NOVEMBER 11, 1794, 7 STAT. 44. ARTICLE VI OF THAT TREATY PROVIDES: "BECAUSE THE UNITED STATES DESIRE, WITH HUMANITY AND KINDNESS, TO CONTRIBUTE TO THEIR COMFORTABLE SUPPORT ... THE UNITED STATES WILL ADD THE SUM OF THREE THOUSAND DOLLARS TO THE ONE THOUSAND FIVE HUNDRED DOLLARS, HERETOFORE ALLOWED THEM BY AN ARTICLE RATIFIED BY THE PRESIDENT APRIL 23, 1792; MAKING IN THE WHOLE, FOUR THOUSAND FIVE HUNDRED DOLLARS; WHICH SHALL BE EXPENDED YEARLY FOREVER, IN PURCHASING CLOATHING, ETC. ... ."

EVERY CONGRESS UNTIL THE 81ST INDICATED THAT THEIR $4,500 ANNUAL APPROPRIATION RESTED UPON "ARTICLE 6, TREATY OF NOVEMBER 11, 1794." E.G., 62 STAT. 1120, 80TH CONG., 2D SESS. SUBSEQUENT CONGRESSES SIMPLY APPROPRIATED A TOTAL AMOUNT FOR INDIAN TREATY OBLIGATIONS INCLUDING "TREATIES WITH SENECAS AND SIX NATIONS OF NEW YORK ... ." E.G., 63 STAT. 774, 81ST CONG., 1ST SESS. IN 1951 THE 82D CONG., 1ST SESS., APPROPRIATED SIMPLY "SUCH AMOUNTS AS MAY BE NECESSARY AFTER JUNE 30, 1951" FOR THIS PURPOSE. 65 STAT. 254. AT THE HEARINGS IT WAS EXPLAINED THAT THIS PROVISION "WOULD HAVE THE EFFECT OF BEING PERMANENT LAW INSOFAR AS MAKING THE FUNDS AVAILABLE WITHOUT HAVING TO BE INCLUDED IN EACH ANNUAL APPROPRIATION ACT ... . IT IS A TREATY OBLIGATION AND HAS ALWAYS BEEN PAID BY THE GOVERNMENT IN FULL ... . THESE TREATIES HAVE BEEN IN EXISTENCE FOR MANY, MANY YEARS." DIRECTOR D. OTIS BEASLEY, DIVISION OF BUDGET AND FINANCE, DEPARTMENT OF THE INTERIOR, HEARINGS ON INTERIOR DEPARTMENT APPROPRIATIONS FOR 1952 BEFORE THE SUBCOMMITTEE ON INTERIOR DEPARTMENT OF THE HOUSE COMMITTEE ON APPROPRIATIONS, 82D CONG., 1ST SESS., PT. 2, 1747, 1764.

FN18 "KANATSOYH, ALIAS NICHOLAS KUSIK," SIGNED THE 1794 TREATY AS A TUSCARORA, BUT IS NOT SO IDENTIFIED THERE. HOWEVER, HE ALSO SIGNED THE TREATIES OF DECEMBER 2, 1794, 7 STAT. 47, AND JANUARY 15, 1838, 7 STAT. 550, FOR THE TUSCARORA NATION AND IS LISTED THERE AS A "TUSCARORA." IT HAS NEVER EVEN BEEN HINTED, UNTIL THE COURT'S NOTE 18 TODAY, THAT THE TUSCARORA NATION IS FOR SOME REASON NOT INCLUDED IN THIS NOVEMBER 11, 1794, SIX NATIONS' TREATY.

FN19 THE KANSAS INDIANS, 5 WALL. 737, 760 ("ENLARGED RULES OF CONSTRUCTION ARE ADOPTED IN REFERENCE TO INDIAN TREATIES"); WORCESTER V. GEORGIA, 6 PET. 515, 582 ("THE LANGUAGE USED IN TREATIES WITH THE INDIANS SHOULD NEVER BE CONSTRUED TO THEIR PREJUDICE ... . HOW THE WORDS OF THE TREATY WERE UNDERSTOOD BY THIS UNLETTERED PEOPLE, RATHER THAN THEIR CRITICAL MEANING, SHOULD FORM THE RULE OF CONSTRUCTION")(CONCURRING OPINION); TULEE V. WASHINGTON, 315 U.S. 681, 683-685 ("IN A SPIRIT WHICH GENEROUSLY RECOGNIZES THE FULL OBLIGATION OF THIS NATION TO PROTECT THE INTERESTS OF A DEPENDENT PEOPLE"). AND SEE SPALDING V. CHANDLER, 160 U.S. 394, 405; ELK V. WILKINS, 112 U.S. 94, 100; EX PARTE CROW DOG, 109 U.S. 556, 572; UNITED STATES V. ROGERS, 4 HOW. 567, 572.

FN20 THE ORIGINS OF THIS POLICY EXTEND INTO PRE-COLONIAL BRITISH HISTORY. AS CHIEF JUSTICE MARSHALL SAID IN WORCESTER V. GEORGIA, 6 PET. 515, 547, IN SPEAKING OF THE INDIAN LAND POLICY:

"THE KING PURCHASED THEIR LANDS WHEN THEY WERE WILLING TO SELL, AT A PRICE THEY WERE WILLING TO TAKE; BUT NEVER COERCED A SURRENDER OF THEM."

CHIEF JUSTICE MARSHALL QUOTED AT THE SAME PLACE SIMILAR LANGUAGE FROM A SPEECH MADE TO THE AMERICAN INDIANS BY THE BRITISH SUPERINTENDENT OF INDIAN AFFAIRS IN 1763. THIS PRINCIPLE HAS BEEN CONSISTENTLY RECOGNIZED BY THIS GOVERNMENT AND THIS COURT. SPALDING V. CHANDLER, 160 U.S. 394, 403; UNITED STATES V. FORTY-THREE GALLONS OF WHISKEY, 93 U.S. 188, 197; THE NEW YORK INDIANS, 5 WALL. 761, 768; CHEROKEE NATION V. GEORGIA, 5 PET. 1, 17; JOHNSON V. M'INTOSH, 8 WHEAT. 543. AND SEE 48 STAT. 987, 25 U.S.C. SEC. 476; 25 U.S.C. SECS. 311-328 AND 25 CFR SEC. 161.3(A).

THE AGE AND SCOPE OF THIS DOCTRINE OF GUARDIANSHIP AND FAIRNESS TO THE INDIANS IS WELL ILLUSTRATED IN A STATEMENT MADE BY PRESIDENT WASHINGTON, DECEMBER 29, 1790, RESPONDING TO AN ADDRESS BY THE CHIEFS AND COUNCILORS OF THE SENECA NATION:

"I AM NOT UNINFORMED, THAT THE SIX NATIONS HAVE BEEN LED INTO SOME DIFFICULTIES, WITH RESPECT TO THE SALE OF THEIR LANDS, SINCE THE PEACE. BUT 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. THE GENERAL GOVERNMENT WILL NEVER CONSENT TO YOUR BEING DEFRAUDED, BUT IT WILL PROTECT YOU IN ALL YOUR JUST RIGHTS." 4 AMERICAN STATE PAPERS (INDIAN AFFAIRS, VOL. I, 1832) 142; 31 WASHINGTON, WRITINGS (UNITED STATES GEORGE WASHINGTON BICENTENNIAL COMM'N ED. 1939) 179, 180.

FN21 SEVENTH ANNUAL MESSAGE, DEC. 7, 1835, 3 RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1897, 147, 172.

FN22 CONG. GLOBE, 33D CONG., 1ST SESS., APP. 202. SEE 1 MORISON AND COMMAGER, THE GROWTH OF THE AMERICAN REPUBLIC (1950), 621.

FN23 SEE, E.G., UNITED STATES V. HELLARD, 322 U.S. 363, 367 ("THE POWER OF CONGRESS OVER INDIAN AFFAIRS IS PLENARY"); UNITED STATES V. SANDOVAL, 231 U.S. 28, 45-46; TIGER V. WESTERN INVESTMENT CO., 221 U.S. 286, 315 ("IT IS FOR THAT BODY (CONGRESS), AND NOT THE COURTS"); LONE WOLF V. HITCHCOCK, 187 U.S. 553, 565 ("PLENARY AUTHORITY OVER THE TRIBAL RELATIONS OF THE INDIANS HAS BEEN EXERCISED BY CONGRESS FROM THE BEGINNING ... NOT ... THE JUDICIAL DEPARTMENT OF THE GOVERNMENT"); UNITED STATES V. ROGERS, 4 HOW. 567, 572.

FN24 "AS WE UNDERSTAND THE POSITION OF THE TRIBE, THEY DO NOT COMPLAIN SO MUCH OF A POSSIBLE LEASE OR LICENSE FOR THE USE OF THE LANDS AS THEY COMPLAIN OF A POSSIBLE PERMANENT LOSS OF PART OF THEIR HOMELANDS." LETTER FROM UNDER SECRETARY OF THE INTERIOR BENNETT TO FEDERAL POWER COMMISSION CHAIRMAN KUYKENDALL, DECEMBER 19, 1958, RELATING TO THE TAKING OF THESE TUSCARORA LANDS FOR THE NIAGARA POWER PROJECT.

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