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INDIAN RESERVATIONS, MILITARY RESERVATIONS, AND OTHER LANDS AND INTERESTS IN LANDS OWNED BY THE UNITED STATES, AND WITHDRAWN, RESERVED, OR WITHHELD FROM PRIVATE APPROPRIATION AND DISPOSAL UNDER THE PUBLIC LAND LAWS; ALSO LANDS AND INTERESTS IN LANDS ACQUIRED AND HELD FOR ANY PUBLIC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

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