FEDERAL POWER COMMISSION V. TUSCARORA INDIAN NATION 362 U.S. 99
NO. 63. ARGUED DECEMBER 7, 1959 - DECIDED MARCH 7, 1960* - 105 U.S.
APP. D.C. 146, 265 F.2D 338, REVERSED.
*TOGETHER WITH NO. 66, POWER AUTHORITY OF THE STATE OF NEW YORK V.
TUSCARORA INDIAN NATION, ALSO ON CERTIORARI TO THE SAME COURT.
UNDER SEC. 21 OF THE FEDERAL POWER ACT, CERTAIN LANDS PURCHASED AND
OWNED IN FEE SIMPLE BY THE TUSCARORA INDIAN NATION AND LYING ADJACENT
TO A NATURAL POWER SITE ON THE NIAGARA RIVER MAY BE TAKEN FOR THE
STORAGE RESERVOIR OF A HYDROELECTRIC POWER PROJECT, UPON PAYMENT OF
JUST COMPENSATION, BY THE POWER AUTHORITY OF THE STATE OF NEW YORK
UNDER A LICENSE ISSUED TO IT BY THE FEDERAL POWER COMMISSION AS
DIRECTED BY CONGRESS IN THE ACT OF AUGUST 21, 1957, 71 STAT. 401. PP.
100-124.
(1) INASMUCH AS THE LANDS HERE INVOLVED ARE OWNED IN FEE SIMPLE BY
THE TUSCARORA INDIAN NATION AND NO "INTEREST" IN THEM IS "OWNED BY THE
UNITED STATES," THEY ARE NOT WITHIN A "RESERVATION," AS THAT TERM IS
DEFINED IN SEC. 3(2) OF THE FEDERAL POWER ACT, AND, THEREFORE, A
COMMISSION FINDING UNDER SEC. 4(E) "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 LANDS IN QUESTION. PP. 110-115.
(2) BY THE BROAD GENERAL TERMS OF SEC. 21 OF THE FEDERAL POWER ACT,
CONGRESS 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 PAYMENT OF JUST COMPENSATION;
THE LANDS IN QUESTION ARE NOT SUBJECT TO ANY TREATY BETWEEN THE UNITED
STATES AND THE TUSCARORA INDIAN NATION; AND 25 U.S.C. SEC. 177,
FORBIDDING A TRANSFER OF LANDS FROM INDIANS UNLESS MADE BY A TREATY OR
CONVENTION ENTERED INTO PURSUANT TO THE CONSTITUTION, 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 PAYMENT OF JUST COMPENSATION. PP. 115-124.
FEDERAL POWER COMMISSION V. TUSCARORA INDIAN NATION.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT.
MR. JUSTICE WHITTAKER DELIVERED THE OPINION OF THE COURT.
THE ULTIMATE QUESTION PRESENTED BY THESE CASES IS WHETHER CERTAIN
LANDS, PURCHASED AND OWNED IN FEE SIMPLE BY THE TUSCARORA INDIAN NATION
AND LYING ADJACENT TO A NATURAL POWER SITE ON THE NIAGARA RIVER NEAR
THE TOWN OF LEWISTON, NEW YORK, MAY BE TAKEN FOR THE STORAGE RESERVOIR
OF A HYDROELECTRIC POWER PROJECT, UPON THE PAYMENT OF JUST
COMPENSATION, BY THE POWER AUTHORITY OF THE STATE OF NEW YORK UNDER A
LICENSE ISSUED TO IT BY THE FEDERAL POWER COMMISSION AS DIRECTED BY
CONGRESS IN PUBLIC LAW 85-159, APPROVED AUGUST 21, 1957, 71 STAT. 401.
THE NIAGARA RIVER, AN INTERNATIONAL BOUNDARY STREAM AND A NAVIGABLE
WATERWAY OF THE UNITED STATES, FLOWS FROM LAKE ERIE TO LAKE ONTARIO, A
DISTANCE OF 36 MILES. ITS MEAN FLOW IS ABOUT 200,000 CUBIC FEET PER
SECOND. THE RIVER DROPS ABOUT 165 FEET AT NIAGARA FALLS AND AN
ADDITIONAL 140 FEET IN THE RAPIDS IMMEDIATELY ABOVE AND BELOW THE
FALLS. THE "HEAD" CREATED BY THESE GREAT FALLS, COMBINED WITH THE
LARGE AND STEADY FLOW OF THE RIVER, MAKES THE LEWISTON POWER SITE,
LOCATED BELOW THE RAPIDS, AN EXTREMELY FAVORABLE ONE FOR HYDROELECTRIC
DEVELOPMENT.
FOR THE PURPOSE OF AVOIDING "CONTINUING WASTE OF A GREAT NATURAL
RESOURCE AND TO MAKE IT POSSIBLE FOR THE UNITED STATES OF AMERICA AND
CANADA TO DEVELOP, FOR THE BENEFIT OF THEIR RESPECTIVE PEOPLES, EQUAL
SHARES OF THE WATERS OF THE NIAGARA RIVER AVAILABLE FOR POWER
PURPOSES," THE UNITED STATES AND CANADA ENTERED INTO THE TREATY OF
FEBRUARY 27, 1950, (FN1) PROVIDING FOR A FLOW OF 100,000 CUBIC FEET PER
SECOND OVER NIAGARA FALLS DURING CERTAIN SPECIFIED DAYTIME AND EVENING
HOURS OF THE TOURIST SEASON (APRIL 1 TO OCTOBER 31) AND OF 50,000 CUBIC
FEET PER SECOND AT OTHER TIMES, AND AUTHORIZING THE EQUAL DIVISION BY
THE UNITED STATES AND CANADA OF ALL EXCESS WATERS FOR POWER PURPOSES.
(FN2)
IN CONSENTING TO THE 1950 TREATY, THE SENATE IMPOSED THE CONDITION
THAT "NO PROJECT FOR REDEVELOPMENT OF THE UNITES STATES' SHARE OF SUCH
WATERS SHALL BE UNDERTAKEN UNTIL IT BE SPECIFICALLY AUTHORIZED BY ACT
OF CONGRESS." 1 U.S.T. 694, 699. TO THAT END, A STUDY WAS MADE AND
REPORTED TO CONGRESS IN 1951 BY THE UNITED STATES ARMY CORPS OF
ENGINEERS RESPECTING THE MOST FEASIBLE PLANS FOR UTILIZING ALL OF THE
WATERS AVAILABLE TO THE UNITED STATES UNDER THE 1950 TREATY, AND
DETAILED PLANS EMBODYING OTHER STUDIES WERE PREPARED AND SUBMITTED TO
CONGRESS PRIOR TO JUNE 7, 1956, BY THE BUREAU OF POWER OF THE FEDERAL
POWER COMMISSION, THE POWER AUTHORITY OF NEW YORK, AND THE NIAGARA
MOHAWK POWER CORPORATION. (FN3) TO ENABLE UTILIZATION OF ALL OF THE
UNITED STATES' SHARE OF THE NIAGARA WATERS BY AVOIDING WASTE OF THE
NIGHTTIME AND WEEK-END FLOW THAT WOULD NOT BE NEEDED AT THOSE TIMES FOR
THE GENERATION OF POWER, ALL OF THE STUDIES AND PLANS PROVIDED FOR A
PUMPING-GENERATING PLANT TO LIFT THOSE WATERS AT THOSE TIMES INTO A
RESERVOIR, AND FOR A STORAGE RESERVOIR TO CONTAIN THEM UNTIL RELEASED
FOR USE - THROUGH THE PUMPING-GENERATING PLANT, WHEN ITS MOTORS
(OPERATING IN REVERSE) WOULD SERVE AS GENERATORS - DURING THE DAYTIME
HOURS WHEN THE DEMAND FOR POWER WOULD BE HIGHEST AND THE DIVERSION OF
WATERS FROM THE RIVER WOULD BE MOST RESTRICTED BY THE TREATY.
ESTIMATES OF DEPENDABLE CAPACITY OF THE SEVERAL RECOMMENDED PROJECTS
VARIED FROM 1,240,000 TO 1,723,000 KILOWATTS, AND ESTIMATES OF THE
NEEDED RESERVOIR CAPACITY VARIED FROM 22,000 ACRE-FEET COVERING 850
ACRES TO 41,000 ACRE-FEET COVERING 1,700 ACRES. THE VARIATIONS IN
THESE ESTIMATES WERE LARGELY DUE TO DIFFERING ASSUMPTIONS AS TO THE
LENGTH OF THE DAILY PERIOD OF PEAK DEMAND.
ALTHOUGH THERE WAS "NO CONTROVERSY AS TO THE MOST DESIRABLE
ENGINEERING PLAN OF DEVELOPMENT," (FN4) THERE WAS SERIOUS DISAGREEMENT
IN CONGRESS OVER WHETHER THE PROJECT SHOULD BE PUBLICLY OR PRIVATELY
DEVELOPED AND OVER MARKETING PREFERENCES AND OTHER MATTERS OF POLICY.
THAT DISAGREEMENT CONTINUED THROUGH EIGHT SESSIONS OF COMMITTEE
HEARINGS, DURING WHICH MORE THAN 30 PROPOSED BILLS WERE CONSIDERED, IN
THE EIGHTY-FIRST TO EIGHTY-FIFTH CONGRESSES, (FN5) AND DELAYED
CONGRESSIONAL AUTHORIZATION OF THE PROJECT FOR SEVEN YEARS.
ON JUNE 7, 1956, A ROCK SLIDE DESTROYED THE SCHOELLKOPF PLANT. (FN6)
THIS CREATED A CRITICAL SHORTAGE OF ELECTRIC POWER IN THE NIAGARA
COMMUNITY. IT ALSO REQUIRED EXPANSION OF THE PLANS FOR THE NIAGARA
PROJECT IF THE 20,000 CUBIC FEET PER SECOND OF WATER THAT HAD BEEN
RESERVED FOR THE SCHOELLKOPF PLANT WAS TO BE UTILIZED. ACCORDINGLY,
THE POWER AUTHORITY OF NEW YORK PREPARED AND SUBMITTED TO CONGRESS A
MAJOR REVISION OF THE PROJECT PLANS. THOSE REVISED PLANS, DESIGNED TO
UTILIZE ALL OF THE NIAGARA WATERS AVAILABLE TO THE UNITED STATES UNDER
THE 1950 TREATY, PROVIDED FOR AN INSTALLED CAPACITY OF 2,190,000
KILOWATTS, OF WHICH 1,800,000 KILOWATTS WOULD BE DEPENDABLE POWER FOR
17 HOURS PER DAY, NECESSITATING A STORAGE RESERVOIR OF 60,000 ACRE-FEET
CAPACITY COVERING ABOUT 2,800 ACRES. (FN7)
CONFRONTED WITH THE DESTRUCTION OF THE SCHOELLKOPF PLANT AND THE
CONSEQUENT CRITICAL NEED FOR ELECTRIC POWER IN THE NIAGARA COMMUNITY,
CONGRESS SPEEDILY COMPOSED ITS DIFFERENCES IN THE MANNER AND TERMS
PRESCRIBED IN PUBLIC LAW 85-159, APPROVED AUGUST 21, 1957. 71 STAT.
401. BY SEC. 1(A) OF THAT ACT, CONGRESS "EXPRESSLY AUTHORIZED AND
DIRECTED" THE FEDERAL POWER COMMISSION "TO ISSUE A LICENSE TO THE POWER
AUTHORITY OF THE STATE OF NEW YORK FOR THE CONSTRUCTION AND OPERATION
OF A POWER PROJECT WITH CAPACITY TO UTILIZE ALL OF THE UNITED STATES
SHARE OF THE WATER OF THE NIAGARA RIVER PERMITTED TO BE USED BY
INTERNATIONAL AGREEMENT." BY SEC. 1(B) OF THE ACT, THE FEDERAL POWER
COMMISSION WAS DIRECTED TO "INCLUDE AMONG THE LICENSING CONDITIONS, IN
ADDITION TO THOSE DEEMED NECESSARY AND REQUIRED UNDER THE TERMS OF THE
FEDERAL POWER ACT," SEVEN CONDITIONS WHICH ARE OF ONLY COLLATERAL
IMPORTANCE HERE. (FN8) THE CONCLUDING SECTION OF THE ACT, SEC. 2,
PROVIDES: "THE LICENSE ISSUED UNDER THE TERMS OF THIS ACT SHALL BE
GRANTED IN CONFORMANCE WITH RULES OF PRACTICE AND PROCEDURE OF THE
FEDERAL POWER COMMISSION, BUT IN THE EVENT OF ANY CONFLICT, THE
PROVISIONS OF THIS ACT SHALL GOVERN IN RESPECT OF THE PROJECT HEREIN
AUTHORIZED."
THEREAFTER, THE POWER AUTHORITY OF THE STATE OF NEW YORK, A MUNICIPAL
CORPORATION CREATED UNDER THE LAWS OF THAT STATE TO DEVELOP THE ST.
LAWRENCE AND NIAGARA POWER PROJECTS, APPLIED TO THE FEDERAL POWER
COMMISSION FOR THE PROJECT LICENSE WHICH CONGRESS HAD THUS DIRECTED THE
COMMISSION TO ISSUE TO IT. ITS APPLICATION EMBRACED THE PROJECT PLANS
THAT IT HAD SUBMITTED TO THE EIGHTY-FIFTH CONGRESS SHORTLY BEFORE ITS
APPROVAL OF PUBLIC LAW 85-159. (FN9) THE PROJECT WAS SCHEDULED TO BE
COMPLETED IN 1963 AT AN ESTIMATED COST OF $720,000,000.
HEARINGS WERE SCHEDULED BY THE COMMISSION, OF WHICH DUE NOTICE WAS
GIVEN TO ALL INTERESTED PARTIES, INCLUDING THE TUSCARORA INDIAN NATION,
INASMUCH AS THE APPLICATION CONTEMPLATED THE TAKING OF SOME OF ITS
LANDS FOR THE RESERVOIR. THE TUSCARORA INDIAN NATION INTERVENED AND
OBJECTED TO THE TAKING OF ANY OF ITS LANDS UPON THE GROUND "THAT THE
APPLICANT LACKS AUTHORITY TO ACQUIRE THEM." AT THE HEARINGS, IT WAS
SHOWN THAT THE TUSCARORA LANDS NEEDED FOR THE RESERVOIR - THEN THOUGHT
TO BE ABOUT 1,000 ACRES - ARE PART OF A SEPARATE TRACT OF 4,329 ACRES
PURCHASED IN FEE SIMPLE BY THE TUSCARORA INDIAN NATION, WITH THE
ASSISTANCE OF HENRY DEARBORN, THEN SECRETARY OF WAR, FROM THE HOLLAND
LAND COMPANY ON NOVEMBER 21, 1804, WITH THE PROCEEDS DERIVED FROM THE
CONTEMPORANEOUS SALE OF THEIR LANDS IN NORTH CAROLINA - FROM WHICH THEY
HAD REMOVED IN ABOUT THE YEAR 1775 TO RESIDE WITH THE ONEIDAS IN
CENTRAL NEW YORK. (FN10)
AFTER CONCLUDING THE HEARINGS, THE COMMISSION, ON JANUARY 30, 1958,
ISSUED ITS ORDER GRANTING THE LICENSE. IT FOUND THAT A RESERVOIR
HAVING A USABLE STORAGE CAPACITY OF 60,000 ACRE-FEET "IS REQUIRED TO
PROPERLY UTILIZE THE WATER RESOURCES INVOLVED." ALTHOUGH THE
COMMISSION FOUND THAT THE INDIAN LANDS "ARE ALMOST ENTIRELY UNDEVELOPED
EXCEPT FOR AGRICULTURAL USE," IT DID NOT PASS UPON THE TUSCARORAS'
OBJECTION TO THE TAKING OF THEIR LANDS BECAUSE IT THEN ASSUMED THAT
"OTHER LANDS ARE AVAILABLE FOR RESERVOIR USE IF THE APPLICANT IS UNABLE
TO ACQUIRE THE INDIAN LANDS." BUT THE COMMISSION DID DIRECT THE
LICENSEE TO REVISE ITS EXHIBIT COVERING THE RESERVOIR, TO MORE
DEFINITELY SHOW THE AREA AND ACREAGE INVOLVED, AND TO RESUBMIT IT TO
THE COMMISSION FOR APPROVAL WITHIN A STATED TIME.
IN ITS APPLICATION FOR REHEARING, THE TUSCARORA INDIAN NATION
CONTENDED, AMONG OTHER THINGS, THAT THE PORTION OF ITS LANDS SOUGHT TO
BE TAKEN FOR THE RESERVOIR WAS PART OF A "RESERVATION," AS DEFINED IN
SEC. 3(2), AND AS USED IN SEC. 4(E), OF THE FEDERAL POWER ACT, (FN11)
AND THEREFORE COULD NOT LAWFULLY BE TAKEN FOR RESERVOIR PURPOSES IN THE
ABSENCE OF 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." BY ITS ORDER OF MARCH 21, 1958,
DENYING THAT APPLICATION FOR REHEARING, THE COMMISSION FOUND THAT "THE
BEST LOCATION OF THE RESERVOIR WOULD REQUIRE APPROXIMATELY 1,000 ACRES
OF LAND OWNED BY INTERVENER," AND IT HELD THAT THE INDIAN LANDS
INVOLVED "ARE NOT PART OF A 'RESERVATION' REFERRED TO IN SECTION 4(E)
AS DEFINED IN SECTION 3(2) OF THE FEDERAL POWER ACT AND THE FINDING
SUGGESTED BY INTERVENER IS NOT REQUIRED." ON MAY 5, 1958, THE
COMMISSION ISSUED ITS ORDER APPROVING THE LICENSEE'S REVISED EXHIBIT
WHICH PRECISELY DELINEATED THE LOCATION, AREA, AND ACREAGE TO BE
EMBRACED BY THE RESERVOIR - WHICH INCLUDED 1,383 ACRES OF THE
TUSCARORAS' LANDS.
ON MAY 16, 1958, THE TUSCARORA INDIAN NATION FILED A PETITION FOR
REVIEW IN THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
CHALLENGING THE LICENSE ISSUED BY THE COMMISSION ON JANUARY 30, 1958,
INSOFAR AS IT WOULD AUTHORIZE THE TAKING OF TUSCARORA LANDS. (FN12)
BY ITS OPINION AND INTERIM JUDGMENT OF NOVEMBER 14, 1958, THE COURT OF
APPEALS HELD THAT THE TUSCARORA LANDS SOUGHT TO BE TAKEN FOR THE
RESERVOIR CONSTITUTE A PART OF A "RESERVATION" WITHIN THE MEANING OF
SECS. 3(2) AND 4(E) OF THE FEDERAL POWER ACT, AND THAT THE COMMISSION
MAY NOT INCLUDE THOSE LANDS IN THE LICENSE IN THE ABSENCE OF A SEC.
4(E) FINDING THAT THEIR TAKING "WILL NOT INTERFERE OR BE INCONSISTENT
WITH THE PURPOSE FOR WHICH SUCH RESERVATION WAS CREATED OR ACQUIRED,"
AND THE COURT REMANDED THE CASE TO THE COMMISSION THAT IT MIGHT
"EXPLORE THE POSSIBILITY OF MAKING THAT FINDING." 105 U.S. APP. D.C.
146, 265 F.2D 338.
UPON REMAND, THE COMMISSION HELD EXTENSIVE HEARINGS, EXPLORING NOT
ONLY THE MATTER OF THE MAKING OF THE FINDING HELD NECESSARY BY THE
COURT OF APPEALS BUT ALSO THE POSSIBILITY OF LOCATING THE RESERVOIR ON
OTHER LANDS. IN ITS ORDER OF FEBRUARY 2, 1959, THE COMMISSION FOUND
THAT THE USE OF OTHER LANDS FOR THE RESERVOIR WOULD RESULT IN GREAT
DELAY, SEVERE COMMUNITY DISRUPTION, AND UNREASONABLE EXPENSE; THAT A
RESERVOIR WITH USABLE STORAGE CAPACITY OF 60,000 ACRE-FEET IS REQUIRED
TO UTILIZE ALL OF THE UNITED STATES' SHARE OF THE WATER OF THE NIAGARA
RIVER, AS REQUIRED BY PUBLIC LAW 85-159; THAT REMOVAL OF THE RESERVOIR
FROM THE TUSCARORA LANDS BY REDUCING THE AREA OF THE RESERVOIR WOULD
REDUCE THE USABLE STORAGE CAPACITY FROM 60,000 ACRE-FEET TO 30,000 ACRE
FEET AND RESULT IN A LOSS OF ABOUT 300,000 KILOWATTS OF DEPENDABLE
CAPACITY. BUT IT CONCLUDED THAT, ALTHOUGH OTHER LANDS CONTIGUOUS TO
THEIR RESERVATION MIGHT BE ACQUIRED BY THE TUSCARORAS, (FN13) THE
TAKING OF THE 1,383 ACRES OF TUSCARORA LANDS FOR THE RESERVOIR "WOULD
INTERFERE AND WOULD BE INCONSISTENT WITH THE PURPOSE FOR WHICH THE
RESERVATION WAS CREATED OR ACQUIRED." THAT ORDER WAS TRANSMITTED TO
THE COURT OF APPEALS WHICH, ON MARCH 24, 1959, AFTER CONSIDERING
VARIOUS MOTIONS OF THE PARTIES, ENTERED ITS FINAL JUDGMENT APPROVING
THE LICENSE EXCEPT INSOFAR AS IT WOULD AUTHORIZE THE TAKING OF
TUSCARORA LANDS FOR THE RESERVOIR, AND REMANDED THE CASE TO THE
COMMISSION WITH INSTRUCTIONS TO AMEND THE LICENSE "TO EXCLUDE
SPECIFICALLY THE POWER OF THE SAID POWER AUTHORITY TO CONDEMN THE SAID
LANDS OF THE TUSCARORA INDIANS FOR RESERVOIR PURPOSES." 105 U.S. APP.
D.C., AT 152, 265 F.2D, AT 344.
BECAUSE OF CONFLICT BETWEEN THE VIEWS OF THE COURT BELOW AND THOSE OF
THE SECOND CIRCUIT, AND OF THE GENERAL IMPORTANCE OF THE QUESTIONS
INVOLVED, WE GRANTED CERTIORARI. 360 U.S. 915.
THE PARTIES HAVE URGED UPON US A NUMBER OF CONTENTIONS, BUT WE THINK
THESE CASES TURN UPON THE ANSWERS TO TWO QUESTIONS, NAMELY, (1) WHETHER
THE TUSCARORA LANDS COVERED BY THE COMMISSION'S LICENSE ARE PART OF A
"RESERVATION" AS DEFINED AND USED IN THE FEDERAL POWER ACT, 16 U.S.C.
SEC. 791A ET SEQ., AND, IF NOT, (2) WHETHER THOSE LANDS MAY BE
CONDEMNED BY THE LICENSEE, UNDER THE EMINENT DOMAIN POWERS CONFERRED BY
SEC. 21 OF THE FEDERAL POWER ACT, 16 U.S.C. SEC. 814. WE NOW TURN TO A
CONSIDERATION OF THOSE QUESTIONS IN THE ORDER STATED.
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.
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).
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