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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.

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