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THE 1950 TREATY SUPERSEDED THE BOUNDARY WATERS TREATY OF JANUARY 11, 1909 (TREATY SERIES 548, 36 STAT. 2448) WHICH LIMITED DIVERSIONS OF WATER BY CANADA TO 36,000, AND BY THE UNITED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.