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.