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INDIAN RESERVATIONS, MILITARY RESERVATIONS, AND OTHER LANDS AND INTERESTS IN LANDS OWNED BY THE UNITED STATES, AND WITHDRAWN, RESERVED, OR WITHHELD FROM PRIVATE APPROPRIATION AND DISPOSAL UNDER THE PUBLIC LAND LAWS; ALSO LANDS AND INTERESTS IN LANDS ACQUIRED AND HELD FOR ANY PUBLIC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"'RESERVATIONS' MEANS LANDS AND INTEREST IN LANDS OWNED BY THE UNITED STATES AND WITHDRAWN, RESERVED, OR WITHHELD FROM PRIVATE APPROPRIATION AND DISPOSAL UNDER THE PUBLIC-LAND LAWS, AND LANDS AND INTEREST IN LANDS ACQUIRED AND HELD FOR ANY PUBLIC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.

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