257 F2d 885 Tuscarora Nation of Indians v. Power Authority of State of New York W

Aruged July 10, 1958.
Decided July 24, 1958, Petition for Rehearing and for
Clarification Denied Aug. 26, 1958, Certiorari
Denied Oct. 13, 1958, See 79 S.Ct. 66.

Arthur Lazarus, Jr., Washington, D.C. (Strasser, Spiegelberg, Fried & Frank, Daniel M. Singer, Washington, D.C., on the brief), for plaintiff-appellant.

Thomas F. Moore, Jr., New York City (Samuel I. Rosenman, New York City, Henry S. Manley, Strykersville, John R. Davison, Albany, on the brief), for defendants-appellees-cross appellants, Power Authority of State of New York and Robert Moses.

Julius L. Sackman, Associate Atty., Albany, N.Y. (Louis J. Lefkowitz, Atty. Gen., of the State of New York, Paxton Blair, Sol. Gen., Albany, N.Y., on the brief), for defendant-appellee, Superintendent of Public Works of State of New York, John W. Johnson.

Before SWAN and MOORE, Circuit Judges, and ANDERSON, District Judge.

MOORE, Circuit Judge.

1 The appellant Tuscarora Nation of Indians (referred to as 'Tuscarora') brought this action in the federal court under 28 U.S.C.A. 1331, 2201 and 2202: (1) for a declaratory judgment to the effect that the appellees, Power Authority of the State of New York, Robert Moses, and Superintendent of Public Works of the State of New York, John W. Johnson, have no power to acquire a portion of their lands without the express consent of the United States and (2) for a permanent injunction against the appropriation of their lands without their consent.

2 The suit was commenced on April 19, 1958 in the Southern District of New York, and was later transferred (161 F.Supp. 702) to the Western District, where it was heard on the merits. The decision of June 24, 164 F.Supp. 107, ordered (1) that the Power Authority's motion for a three judge court be denied; (2) that the temporary restraining order previously issued be dissolved; (3) that plaintiff's motion for a permanent injunction be denied; (4) that the complaint be dismissed without costs; and (5) that the affidavit of Henry S. Manley be stricken as an affidavit and be considered as an additional brief on behalf of the defendants. The appeal is taken pursuant to 28 U.S.C.A. 1291.

3 The Tuscarora are a tribe of American Indians occupying lands in western New York. They migrated to central New York State from North Carolina prior to the American Revolution and became a part of the Iroquois Confederacy, sometimes referred to as the Six Nations. Subsequent to the Revolution New York State desired to move the Oneidas and Tuscaroras from central New York to the territory of the Senecas in western New York. As a result of sales of the Indians' rights of occupation the main body of Tuscaroras moved to Niagara County where they acquired three tracts of property. The first tract, a mile square (640 acres), was a right of occupancy conceded to them by the Senecas. The second tract (1280 acres) was a gift from the Senecas and the Holland Land Company. The third and largest tract, and the only tract involved in this litigation, consists of 4329 acres. This third tract was acquired in 1804 (title finally taken in 1809) for the Tuscarora through the good offices of the Secretary of War of the United States. The Tuscarora purchased the fee to this tract from the Holland Land Company out of the proceeds received from the sale of their North Carolina properties. Since that time the Tuscarora have lived on these tracts as a tax-exempt Indian Reservation despite the fact that the third tract was acquired by purchase and not as a grant from the United States.

4 The Power Authority of the State of New York is in charge of the development of a power project in western New York known as the Niagara River Power Project. This project was authorized by Congress and made possible by a treaty with Canada (February 27, 1950), which greatly enlarged the amount of water from the Niagara River available to the United States for power purposes. Following the treaty Congress through Public Law 85-159 (Act of August 21, 1957, 71 Stat. 401, 16 U.S.C.A. 836, 836a) authorized and directed the Federal Power Commission to issue a license to the Power Authority for the construction and operation of a power project with capacity to utilize all of the United States' share of the water permitted to be diverted under the terms of the treaty. The license was issued on January 30, 1958. On March 28, 1958 the Power Authority filed a petition in the Supreme Court of the State of New York for Niagara County to condemn 1,383 acres of the Reservation lands of the Tuscarora Nation of Indians whose entire Reservation consisted of 6,249 acres. The portion sought to be condemned was planned to be used for a water storage reservoir in connection with the Niagara power project. On April 15, 1958 the Power Authority withdrew the condemnation proceedings in the Supreme Court of New York and by filing a map of the 1,383 acre portion of the Tuscarora Reservation pursuant to 30 of the New York State Highway Law, McKinney's Consol.Laws, c. 25, and Article 5, Title 1 of the Public Authorities Law, McKinney's Consol.Laws, c. 43-A, appropriated the 1,383 acres for the purpose of the reservoir. At the same time a sum estimated by the Power Authority to be the fair market value fo the appropriated land was, as required by Statute, deposited with the Comptroller of the State of New York. The provisions of 30 of the New York Highway Law authorize the Power Authority, after filing the map and depositing the money, immediately to enter upon and take possession of the property described.

5 A power plant has been planned which will be the largest hydro-electric project in the United States. The total cost is estimated at upwards of.$625,000,000 and contracts have already been authorized for more than $339,000,000. An essential part of the project is a large water storage reservoir of at least 600,000 acre feet. Construction work and power lines relocation are now at the very edge of the Tuscarora Reservation.

6 Although both parties have given the court the benefit of the historical development of title to Indian lands in New York State and the various treaties relating thereto, this background material affects largely tracts 1 and 2 which are not now before the court. Since tract 3 was acquired in fee by purchase the primary question is: What laws and treaties apply to, and what other obligations have been assumed by the United States and the State of New York with respect to, this particular Indian Reservation?

7 Appellant claims that the taking of a portion of its Reservation is in violation of Title 25 United States Code, Sections 177 and 233. Appellees, on the other hand, assert that these statutes do not apply to the State of New York which possesses sovereign power of condemnation over Indian lands, independent of and never surrendered to, the Federal Government, derived from its status as one of the original thirteen colonies.

8 Indian Non-Intercourse Acts: State and Federal

9 In order to prevent Indians from being victimized by artful scoundrels inclined to make a sharp bargain, both New York and the United States from an early date imposed restrictions on the acquisition of lands from the Indians by private persons unless adequate protection was afforded. Thus in 1777 the first Constitution of New York State provided that 'no purchases * * * shall be binding * * * or deemed valid, unless made under the authority and with the consent of the legislature of this State' (Article XXXVII). This provision, in substance, has been continued in subsequent constitutions, Const. art. 1, 13.

10 In 1790 the United States enacted its first Indian Non-Intercourse Act which imposed a similar restriction against sale 'unless the same shall be made and duly executed at some public treaty, held under the authority of the United States' (1 Stat. 138). A second Non-Intercourse Act was passed in 1793, 1 Stat. 329. Other acts embodying substantially the same restrictions were enacted but the statute remains in virtually the same form today. Thus 25 U.S.C.A. 177 provides: