Federal Power Commission v. Tuscarora Indian Nation
1960 U.S. LEXIS 1886 · 362 U.S. 99 · 4 L. Ed. 2d 584 · 80 S. Ct. 543
April 18, 1960 · Docket 63
Opinion
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,
In consenting to the 1950 Treaty, the Senate imposed the condition that “no project for redevelopment of the United 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.
Although there was “no controversy as to the most desirable engineering plan of development,”
On June 7, 1956, a rock slide destroyed the Schoellkopf plant.
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 § 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 § 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.
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.
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.
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 § 3 (2), and as used in § 4 (e), of the Federal Power Act,
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.
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,
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 certio-rari. 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. § 791a et seq., and, if not, (2) whether those lands may be condemned by the licensee, under the eminent domain powers conferred by § 21 of the Federal Power Act, 16 U. S. C. § 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 § 4 (e) of the Federal Power Act, 16 U. S. C. § 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 § 3 (2) of the Federal Power Act, 16 U. S. C. § 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.” (Emphasis added.)
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.”14
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” (emphasis added) at the beginning of the definition.
Further evidence that Congress intended to limit “reservations,” for the “purposes of this Act” (§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 § 4 (e) of the Act. By that section Congress, after authorizing the Commission to license projects in streams or other bodies of water over which it has jurisdiction under the Commerce Clause of the Constitution (Art. I, § 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, § 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 § 21, 16 U. S. C. § 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, § 21 does not apply to nor authorize condemnation of lands or interests in lands owned by the United States, because § 10 (e) of the Act, 16 U. S. C. § 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” (emphasis added) 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 (these italicized words being lifted straight from the § 3 (2) definition of ‘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.” (Emphasis added.)
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” (§ 3 (2)), intended to and did confine “reservations,” including “tribal lands embraced within Indian reservations” (§ 3 (2)), to those located on lands “owned by the United States” (§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 be 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 § 3 (2) of the Federal Power Act. (Emphasis added.)
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 term is defined and used in the Federal Power Act, and that a Commission finding under § 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 § 21 of the Federal Power Act. Petitioners contend that § 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 § 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 § 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 §§ 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 § 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. § 177.
“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 § 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 § 177 is applicable to alienations effected by condemnation proceedings under § 21 of the Federal Power Act, the mere “expressed consent” of Congress would be vain and idle. For § 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 § 177 is applicable to alienations effected by condemnation under § 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 § 177 is not applicable to the sovereign United States nor, hence, to its licensees to whom Congress has delegated federal eminent domain powers under § 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, 239.227, 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.
“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.
In the light of these authorities we must hold that Congress, by the broad general terms of § 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. § 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 § 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 § 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.
1 U. .S. T. 694.
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.
S. Rep. No. 539, 85th Cong., 1st Sess., pp. 5-6.
Ibid.
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
See note 2.
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*104 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. E. Eep. No. 862, 85th Cong., 1st Sess., p. 7.
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.
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.
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.
As amended, 49 Stat. 838, 16 U. S. C. §§ 796 (2) and 797 (e).
Meanwhile, on April 15, 1958, the Power Authority of New York commenced so-called “appropriation” proceedings under § 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 § 21 of the Federal Power Act (16 U. S. C. § 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.)
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*110 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. §§ 177, 233.”
See H. R. Rep. No. 715, 65th Cong., 2d Sess., p. 22; S. Rep. No. 180, 66th Cong., 1st Sess., p. 10.
See S. Rep. No. 180, 66th Cong., 1st Sess., p. 10; 59 Cong. Rec. 1103.
See H. R. Rep. No. 910, 66th Cong., 2d Sess., p. 7.
The Tuscaroras also rely upon 25 U. S. C. § 233, which confers, subject to qualifications, jurisdiction upon the courts of New York over civil actions between Indians and also between them and other
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 suffer-
By the Treaty of Fort Stanwix of 1784 (7 Stat. 15) and the unrati-fied 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
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.