Supreme Court of the United States

FEDERAL POWER COMMISSION, Petitioner,

v.

TUSCARORA INDIAN NATION.

POWER AUTHORITY OF STATE OF NEW

YORK, Petitioner,

v.

TUSCARORA INDIAN NATION.

Nos. 63, 66.

Argued Dec. 7, 1959.

Decided March 7, 1960.

Rehearing Denied April 18, 1960.

See 362 U.S. 956, 80 S.Ct. 858.

Proceeding to review order of Federal Power

Commission granting license to New York Power

Authority to build a dam that would flood lands of

the Tuscarora Indians. The United States Court of

Appeals for the District of Columbia Circuit, 105

U.S.App.D.C. 146, 265 F.2d 338, remanded the

case to the commission with instructions to amend

the license to exclude specifically the power of the

Authority to condemn lands of the Tuscarora Indians for reservoir purposes. The Supreme Court

granted certiorari. The Supreme Court, Mr. Justice

Whittaker, held that certain lands, purchased and

owned in fee simple by the Tuscarora Indian Nation

and lying adjacent to a natural power site of the

Niagara River near the town of Lewiston, New

York, may be taken for the storage reservoir of a

hydraulic 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 16 U.S.C.A. ss 836,836a.

Reversed.

Mr. Justice Black, Mr. Chief Justice Warren

and Mr. Justice Douglas dissented.

West Headnotes

[1] Federal Courts 170B 457

170B Federal Courts

170BVII Supreme Court

170BVII(B) Review of Decisions of Courts

of Appeals

170Bk455 Decisions Reviewable and

Grounds for Issuance

170Bk457 k. Conflicting decisions of

Courts of Appeals. Most Cited Cases

(Formerly 106k383(1))

Where the questions involved were of general

importance and there was a conflict between the

views of the Court of Appeals for the District of

Columbia Circuit and the views of the Court of Appeals for the Second Circuit on such questions, the

Supreme Court granted certiorari to review the decision of the Court of Appeals for the District of

Columbia Circuit.

[2] Water Law 405 2537

405 Water Law

405XV Navigable Waters

405XV(B) Rights of Public

405XV(B)1 In General

405k2537 k. Constitutional and statutory provisions. Most Cited Cases

(Formerly 270k2 Navigable Waters)

Congress could depart from the common understanding of term “reservations” as applied to Indian lands and was free and competent artificially

to define the term for the purposes it prescribed in

the Federal Power Act, and the courts are bound to

give effect to such definition. Federal Power Act, §

3(2) as amended 16 U.S.C.A. § 796(2).

[3] Water Law 405 2537

405 Water Law

405XV Navigable Waters

405XV(B) Rights of Public

405XV(B)1 In General

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405k2537 k. Constitutional and statutory provisions. Most Cited Cases

(Formerly 270k2 Navigable Waters)

The plain words of Federal Power Act definition of “reservations” as tribal lands embraced

within Indian reservations and other lands and interests in lands owned by United States, and the legislative history of the definition, and the fact that

Congress acted under property clause of Federal

Constitution when it authorized Federal Power

Commission to license federal power projects on

public lands and reservations of United States and

the plan of compensation disclosed by the Act when

a licensed project is on public lands and reservations, disclosed congressional intention to confine

term “reservations”, including tribal lands within

Indian reservations, to those located on lands

owned by United States or in which United States

owned a proprietary interest. Federal Power Act, §§

3(2), 4(e), 10(e), 21 as amended 16 U.S.C.A. §§

796(2), 797(e), 803(e), 814; U.S.C.A.Const. art. 4,

§ 3, cl. 2.

[4] Water Law 405 2537

405 Water Law

405XV Navigable Waters

405XV(B) Rights of Public

405XV(B)1 In General

405k2537 k. Constitutional and statutory provisions. Most Cited Cases

(Formerly 270k3 Navigable Waters)

Where the House of Representatives defined

the term “reservation” in what is presently the Federal Power Act as meaning lands and interest in

lands owned by United States, the Senate's amendment adding to the definition “triballands embraced

within Indian reservations” intended no change in

substance but only specified, as illustrative, some

of the reservations on lands and interests in lands

owned by the United States. Federal Power Act, §

3(2) as amended 16 U.S.C.A. § 796(2).

[5] Statutes 361 212.1

361 Statutes

361VI Construction and Operation

361VI(A) General Rules of Construction

361k212 Presumptions to Aid Construction

361k212.1 k. Knowledge of legislature. Most Cited Cases

Congress was deemed to know, when it authorized Federal Power Commission to license federal

power projects on public lands and reservations of

United States, that such licensing power springs

from the constitutional power to dispose of and

make all needful rules and regulations respecting

territory or other property belonging to United

States, and therefore Congress must have intended

to deal only with the territory or other property belonging to United States. Const. art. 4, § 3, cl. 2;

Federal Power Act, §§ 3(2), 4(e) as amended 16

U.S.C.A. §§ 796(2), 797(e).

[6] Water Law 405 2618

405 Water Law

405XV Navigable Waters

405XV(B) Rights of Public

405XV(B)5 Obstruction of Navigation in

General, Injury, and Remedies

405k2616 Piers, Dams, and Cables

405k2618 k. Authority to construct

and maintain, or to authorize construction and

maintenance. Most Cited Cases

(Formerly 270k22(1) Navigable Waters)

Where lands were owned in fee simple by Tuscarora Indian Nation, such lands were not a

“reservation” within Federal Power Act restricting

that term, including tribal lands within Indian reservations, to lands owned by United States or in

which United States owned a proprietary interest,

and the existence of a national paternal relationship

to the Indians and a concern on part of government

to protect Indians against improper alienation of

their lands gave rise to no such “interest” of United

States in the Tuscarora Indian lands as to make the

lands a reservation, and consequently under the act

80 S.Ct. 543 Page 2

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the Federal Power Commission could issue license

for federal power project on the Tuscarora Indian

lands without the necessity for any finding that license would not interfere with or be inconsistent

with purpose for which such reservation was created or acquired. Federal Power Act, §§ 3(w), 4(e)

as amended 16 U.S.C.A. §§ 796(2), 797(e).

[7] Eminent Domain 148 45

148 Eminent Domain

148I Nature, Extent, and Delegation of Power

148k44 Property Subject to Appropriation

148k45 k. In general. Most Cited Cases

(Formerly 149k45)

The provision in Federal Power Act authorizing licensee to condemn the lands or property of

others necessary to construction, maintenance or

operation of any licensed project applies to lands

owned in fee simple by Tuscarora Indian Nation,

when needed for a licensed project, upon the payment of just compensation. Federal Power Act, §§

3(2), 4(e), 10(e), 21 as amended 16 U.S.C.A. §§

796(2), 797(e), 803(e), 814; 25 U.S.C.A. §§ 177,

233.

[8] Indians 209 119

209 Indians

209I In General

209k119 k. Status and disabilities of Indians

in general. Most Cited Cases

(Formerly 209k5)

A general statute in terms applying to all persons includes Indians and their property interests.

[9] Indians 209 120

209 Indians

209I In General

209k120 k. Regulation of intercourse with

Indians. Most Cited Cases

(Formerly 209k15(2))

Indians 209 174

209 Indians

209IV Real Property

209k172 Alienation in General

209k174 k. Approval by, or through, federal authorities in general. Most Cited Cases

(Formerly 209k15(2))

The purpose of statute provision that 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 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. 25 U.S.C.A. § 177.

[10] Eminent Domain 148 55

148 Eminent Domain

148I Nature, Extent, and Delegation of Power

148k54 Exercise of Delegated Power

148k55 k. In general. Most Cited Cases

(Formerly 209k15(1))

Indians 209 120

209 Indians

209I In General

209k120 k. Regulation of intercourse with

Indians. Most Cited Cases

(Formerly 209k15(1))

Indians 209 174

209 Indians

209IV Real Property

209k172 Alienation in General

209k174 k. Approval by, or through, federal authorities in general. Most Cited Cases

(Formerly 209k15(1))

The statute providing that no purchase, grant,

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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 is not applicable to the sovereign United States nor, hence,

to its licensees to whom Congress has delegated

federal eminent domain powers under Federal

Power Act, and therefore the statute was not applicable to the taking of lands owned in fee simple by

Tuscarora Indian Nation for a licensed Niagara

power project. 25 U.S.C.A. § 177; Federal Power

Act, § 21 as amended 16 U.S.C.A. § 814.

[11] Statutes 361 233

361 Statutes

361VI Construction and Operation

361VI(A) General Rules of Construction

361k233 k. Construction as including or

binding government. Most Cited Cases

A general statute imposing restrictions does not

impose them upon the government itself without a

clear expression or implication to that effect.

[12] Eminent Domain 148 45

148 Eminent Domain

148I Nature, Extent, and Delegation of Power

148k44 Property Subject to Appropriation

148k45 k. In general. Most Cited Cases

(Formerly 209k3(3), 209k3)

Lands which were owned in fee simple by Tuscarora Indian Nation were not subject to treaties

protecting the lands from condemnation for licensed federal power projects. Treaty of Fort Stanwix of 1784, 7 Stat. 15; Treaty of Fort Harmar of

1789, 7 Stat. 33; Treaty of Canandaigua of 1794, 7

Stat. 44; Treaty of Big Tree of 1797, 7 Stat. 601;

Federal Power Act, § 21 as amended 16 U.S.C.A. §

814.

**545 *100 J. Lee Rankin, Washington, D.C., Sol.

Gen., for petitioner Federal power comm.

Mr. Thomas F. Moore, Jr., New York City, for petitioner Power Authority of New York.

Mr. Arthur Lazarus, Jr., Washington, D.C., for respondent.

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 simply 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, 16 U.S.C.A. ss 836, 836a.

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.

*101 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

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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

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.

In consenting to the 1950 Treaty, the Senate

imposed the condition that ‘no **546 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 *102 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 pumpinggenerating 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.

FN3. S.Rep. No. 539, 85th Cong., 1st

Sess., pp. 5-6.

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.

FN4. Ibid.

FN5. Hearings were held before the Senate

Committee on Public Works, or its Subcommittee, in the Eighty-second, Eightythird 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

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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.

*103 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

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 pumpinggenerating facilities will be required.’

H.R.Rep. No. 862, 85th Cong., 1st Sess., p.

7, U.S.Code Cong. and Adm.News 1957,

p. 1591.

**547 *104 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 s 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 s

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, s 2,

provides: ‘The license issued under the terms *105

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 re80 S.Ct. 543 Page 6

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spect of the project herein authorized.’

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 to 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.

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.

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.

**548 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 though to be about

1,000 acress-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 *106

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

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

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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.

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 underveloped*107 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 acrease

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 s

3(2), and as used in s 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**549 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

‘(t)he 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.

FN11. As amended, 49 Stat. 838, 16

U.S.C. ss 796(2) and 797(e), 16 U.S.C.A.

ss 796(2), 797(e).

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 *108 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’*109 within the meaning of ss 3(2) and

4(e) of the Federal Power Act, and that the Commission may not include those lands in the license

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in the absence of a s 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, 343.

FN12. Meanwhile, on April 15, 1958, the

Power Authority of New York commenced

so-called ‘appropriation’ proceedings under s 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, D.C., 146 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 s 21 of the Federal Power Act

(16 U.S.C. s 814, 16 U.S.C.A. s 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, 2 Cir., 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, 79 S.Ct. 66, 3 L.Ed.2d 76. 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. 362 U.S. 608, 80 S.Ct. 960.

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

**550 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 *110 the taking of the 1,383 acres

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fere 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 page 152, 265 F.2d at page 344.

FN13. In making the statement referred to

in the text the Commission was doubtless

alluding to the fact that in May 1958, the

Power Authority offered the Tuscaroras

$1,500,000 for the 1,383 acres, or in excess of $1,000 per acre, plus payment for,

or removal to or replacing on other lands,

the 37 houses located on these 1,383 acres

and offered to construct for them a community center building, involving a total

expenditure of about 2,400,000, which offer, the Commission says, has never been

withdrawn.

The Tuscarora Indian Nation tells us in its

brief that:

‘What the Government unfortunately fails

to point out is that the Power Authority's

‘offer’ was and still is an empty gesture

since, as the court below and the Court of

Appeals for the Second Circuit both ruled,

the Tuscarora Nation is prohibited by law

from selling its lands without the consent

of the United States expressed in an act of

Congress. 25 U.S.C. ss 177, 233 (25

U.S.C.A. ss 177, 233).'

[1] 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, 79

S.Ct. 1435, 3 L.Ed.2d 1532.

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. s 791a et seq.,

16 U.S.C.A. ss 791a et seq., and, if not, (2) whether, those lands may be condemned by the licensee,

under the eminent domain powers conferred by s 21

of the Federal Power Act, 16 U.S.C. s 814, 16

U.S.C.A. s 814. We now turn to a consideration of

those questions in the order stated.

I.

[2][3] 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 s 4(e) *111 of the Federal

Power Act, 16 U.S.C. s 797(e), 16 U.S.C.A. s

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 the

Act. And we are bound to give effect to its definition**551 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, 55 S.Ct. 333, 337, 79 L.Ed. 780. By s 3(2) of

the Federal Power Act, 16 U.S.C. s 796(2), 16

U.S.C.A. s 796(2), Congress has provided:

‘s 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

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owned by the United States, and withdrawn, reserved, or withheld from proviate appropriation and

disposal under the public land laws; also lands and

interests in lands acquired and held for any public

purposes; 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.’

[4] 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 *112 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 publicland laws, and lands

and interest in lands acquired and held for any public purpose.'FN14

FN14. See H.R.Rep. No. 715, 65th Cong.,

2d Sess., p. 22; S.Rep. No. 180, 66th

Cong., 1st Sess., p. 10.

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.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), 16 U.S.C.A. s 797 note,

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.’

FN15. See S.Rep. No. 180, 66th Cong., 1st

Sess., p. 10; 59 Cong.Rec. 1103.

FN16. See H.R.Rep. No. 910, 66th Cong.,

2d Sess., p. 7.

[5] Further evidence that Congress intended to

limit ‘reservations,’ for the ‘purpose of this Act’ (s

3), to those *113 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 s 4(e)

of the Act. By that section Congress, after authorizing the Commission to license projects **552 in

streams or other bodies of water over which it has

jurisdiction under the Commerce Clause of the

Constitution (Art. I, s 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. v. State of

Oregon, 349 U.S. 435, 443, 75 S.Ct. 832, 837, 99

L.Ed. 1215, 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, s 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

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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 s 21,

16 U.S.C. s 814, 16 U.S.C.A. s 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 allinclusive terms, s 21 does not apply to nor authorize condemnation of lands or interests in lands

owned by the United States, because s 10(e) of the

Act, 16 U.S.C. 803(e), 16 U.S.C.A. s 803(e), expressly provides that ‘the licensee shall pay to the

United States reasonable annual charges * * * for

recompensating it for *114 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 s 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’ (s

3(2), intended to and did confine ‘reservations,’ including ‘tribal lands embraced within Indian reservations' (s 3(2), to those located on lands ‘owned by

the United States' (s 3(2), or in which it owns a proprietary interest.

[6] 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 they 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 page

150, 265 F.2d at page 342. *115 We do not agree.

The national ‘interest’ in Indian welfare and protection ‘is not to be expressed**553 in terms of property * * *.’ Heckman v. United States, 224 U.S.

413, 437, 32 S.Ct. 424, 56 L.Ed. 820. 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 s 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 s 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.

[7] 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 s 21 of the Federal

Power Act. Petitioners contend that s 21 is a broad

general statute authorizing condemnation of ‘the

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censed 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 s 21,

being only a general Act of Congress, does not apply to Indians or their lands.

[8] The Tuscarora Indian Nation heavily relies

upon Elk v. Wilkins, 112 U.S. 94, 5 S.Ct. 41, 28

L.Ed. 643. It is true that in that case the *116 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 pages 99-100, 5 S.Ct. at

page 44. 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, 55 S.Ct. 820, 79 L.Ed. 1517,

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,

51 S.Ct. 598, 599, 600, 75 L.Ed. 1353:

“The language of (the Internal Revenue Act of

1918) subjects the income of ‘every individual’ to

tax. Section 213(a) includes income ‘from any *117

source whatever.’ The intent of Congress was to

levy the **554 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 general 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, 45 S.Ct. 475,

69 L.Ed. 897; Heiner v. Colonial Trust Co., 275

U.S. 232, 48 S.Ct. 65, 72 L.Ed. 256; Helvering v.

Stockholms Enskilda Bank, 293 U.S. 84, 55 S.Ct.

50, 79 L.Ed. 211; Pitman v. Commissioner, 10 Cir.,

64 F.2d 740. The purpose is sufficiently clear.’ 295

U.S. at pages 419-420, 55 S.Ct. at page 821.

In Oklahoma Tax Comm. v. United States, 319

U.S. 598, 63 S.Ct. 1284, 87 L.Ed. 1612, 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 page 600, 63 S.Ct. at page

1285.) ‘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

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U.S. at page 607, 63 S.Ct. at page 1288.

See, e.g., Shaw v. Gibson-Zahniser Oil Corporation, 276 U.S. 575, 581-582, 48 S.Ct. 333,

335-336, 72 L.Ed. 709; United States v. Ransom,

263 U.S. 691, 44 S.Ct. 230, 68 L.Ed. 508; Kennedy

v. Becker, 241 U.S. 556, 563-564, 36 S.Ct. 705,

707-708, 60 L.Ed. 1166; Choate v. Trapp, 224 U.S.

665, 673, 32 S.Ct. 565, 568, 56 L.Ed. 941.

*118 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 s 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 ss 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 page 151, 265 F.2d at page 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 s 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 **555 U.S.C. s 177, 25 U.S.C.A. s

177.FN17 That section, in pertinent part, provides:

FN17. The Tuscaroras also rely upon 25

U.S.C. s 233, 25 U.S.C.A. s 233, which

confers, subject to qualifications, jurisdiction upon the courts of New York over

civil actions between Indians and also

between them and other persons, and contains a pertinent proviso ‘That nothing

herein contained shall be construed as authorizing the alienation from any Indian

nation, tribe, or band of Indians of any

lands within any Indian reservation in the

State of New York.’

‘No purchase, grant, lease, or other conveyance

of lands, or of any title or claim thereto, from any

*119 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. * * *’

[9] 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, 64 S.Ct. 985, 88 L.Ed. 1326; United

States v. Candelaria, 271 U.S. 432, 441-442, 46

S.Ct. 561, 562-563, 70 L.Ed. 1023; Henkel v.

United States, 237 U.S. 43, 51, 35 S.Ct. 536, 539,

59 L.Ed. 831; United States v. Sandoval, 231 U.S.

28, 46-48, 34 S.Ct. 1, 5-6, 58 L.Ed. 107. 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 subjected only to the same rule

of law as are others in the State * * *.’ United

States v. Oklahoma Gas & Elec. Co., 318 U.S. 206,

211, 63 S.Ct. 534, 537, 87 L.Ed. 716.

As to the Tuscaroras' contention that s 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 s

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177 is applicable to alienations effected by condemnation proceedings under s 21 of the Federal Power

Act, the mere ‘expressed consent’ of Congress

would be vain and idle. For s 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 *120 nothing. Therefore, if s 177 is applicable to alienations effected by condemnation

under s 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.

[10][11] But s 177 is not applicable to the sovereign United States nor, hence, to its licensees to

whom Congress has delegated federal eminent domain powers under s 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, 69 S.Ct. 1108, 1114, 93 L.Ed. 1406.

In United States v. United Mine Workers of

America, 330 U.S. 258, 272-273, 67 S.Ct. 677, 686,

91 L.Ed. 884, 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, 77 S.Ct. 287, 290, 1

L.Ed.2d 267; United States v. Wyoming, 331 U.S.

440, 449, 67 S.Ct. 1319, 1324, 91 L.Ed. 1590;

United States v. Stevenson, 215 U.S. 190, 30 S.Ct.

35, **556 54 L.Ed. 153; United States v. American

Bell Telephone Co., 159 U.S. 548, 553-555, 16

S.Ct. 69, 71-72, 40 L.Ed. 255; Lewis v. United

States, 92 U.S. 618, 622, 23 L.Ed. 513; United

States v. Herron, 20 Wall. 251, 263, 22 L.Ed. 275;

Dollar Savings Bank v. United States, 19 Wall.

227, 239, 22 L.Ed. 80.

[12] 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, 35 S.Ct. 536 (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, 16 S.Ct. 360, 40 L.Ed. 469

*121 (sustaining the power of the Government to

convey a strip of land through a track 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, 10 S.Ct. 965, 34

L.Ed. 295. 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:

FN18. The Tuscarora Indian Nation argues

that its lands in question should be regarded as subject to and protected from

condemnation by the Treaty of Fort Stanwix Of October 22, 1784 (7 Stat. 15), the

unratified Treaty of Fort Harmar of January 9, 1789 (7 Stat. 33), and the Treaty of

Canandaigua of November 11, 1794 (7

Stat. 44). But the record shows that the

first two of these treaties related to other

lands and, principally at least, to other Indian nations, and that the last treaty mentioned, though covering the lands in question, was with another Indian nation (the

Senecas) which, pursuant to the Treaty of

Big Tree of September 15, 1797 (7 Stat.

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601) and with the approbation of the

United States, sold its interest in these

lands to Robert Morris and thus freed them

from the effects of the Treaty of Canandaigua of 1794, Robert Morris, in turn, conveyed these lands to the Holland Land

Company and it, in turn, conveyed the part

in question to the Tuscarora Indian Nation,

and its title rests upon that conveyance,

free of any treaty.

It appears from the record that, as earlier

stated (see note 10), the Tuscaroras, save

for a few of them who remained on their

lands ‘on the Roanoke’ in North Carolina,

moved from their North Carolina lands to

reside with the Oneidas in central New

York-at a point about 200 miles east of the

lands now owned by the Tuscaroras in

Niagara County, New York-in 1775. The

Tuscaroras had no proprietary interest in

the Oneidas' lands in central New York but

were there as ‘guests' of the Oneidas or as

‘tenants at will or by sufferance.’ Hough,

Census of the State of New York, 1857, p.

510; New York Senate Document No. 24,

1846, p. 68. They came to be recognized,

however, as members of the Five Nations

which thereafter became known as the Six

Nations (the others being the Oneidas, the

Mohawks, the Onondagas, the Cayugas

and the Senecas). The Senecas occupied a

vast area in western New York, including

the lands here in question. A few Tuscaroras fought with the Senecas on the side of

the British and after their defeat at the

battle of Elmira in 1779, they went to

reside with the Senecas in the vicinity of

Fort Niagara in about 1780. Other Tuscaroras then moved to that place. Just

when they did so is not known with certainty and it appears that the most that can

be said is that they were there prior to

1797. The Tuscaroras had the same kind of

tenure, i.e., guests or tenants at will or by

sufferance, with the Senecas as they had

earlier had with the Oneidas in central

New York. One of their chiefs described

their situation as ‘squatters upon the territory of another distinct nation.’

By the Treaty of Fort Stanwix of 1784 (7

Stat. 15) and the unratified Treaty or 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 livedwhich were the lands in central New York

about 200 miles east of the lands in question. By the same treaties the United States

promised to secure to the Six Nations a

tract of land in western New York in the

vicinity of the Niagara River. By the

Treaty of Canandaigua of 1794 (7 Stat. 44)

between the United States and the Six Nations, which superseded the prior treaties

(except, by Article VI, the United States

remained bound to pay the Tuscaroras

$4,500 per year for the purchase of clothing), it was recognized that the Senecas

alone had possessory rights to the western

New York area here involved and, as a result of that treaty, a large tract of western

New York lands, including the lands now

owned by the Tuscaroras, was secured to

the Senecas.

Under the 1786 Hartford Compact between

New York and Massachusetts, New York

was recognized to have sovereignty over

those lands and Massachusetts to own the

underlying fee to those lands and the right

to purchase the Senecas' interest in them.

In 1794, Massachusetts sold the fee and the

right to purchase the Senecas' right to occupy these western New York lands, including the lands now owned by the Tuscaroras, to Robert Morris, who, in turn,

sold those lands and rights to the Holland

Land Company with the covenant that be

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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.

‘It would be very strange if the national government, in the execution**557 of its rightful authority, could exercise*122 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 pages 656-657, 10 S.Ct. at page 971.

*123 See also Lone Wolf v. Hitchcock, 187

U.S. 553, 565, 23 S.Ct. 216, 221, 47 L.Ed. 299;

Missouri, Kansas & Texas R. Co. v. Roberts, 152

U.S. 114, 117-118, 14 S.Ct. 496, 497, 38 L.Ed. 377;

Beecher v. Wetherby, 95 U.S. 517, 24 L.Ed. 440;

Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449.

In the light of these authorities we must hold

that Congress, by the broad general terms of s 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. s 177, 25 U.S.C.A. s 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 *124 the manner

provided by s 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 s 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 **558 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.

Mr. Justice BRENNAN concurs in the result.

Mr. Justice BLACK, whom the CHIEF JUSTICE

and Mr. Justice DOUGLAS join, dissenting.

The Court holds that the Federal Power Act

FN1 authorizes the taking of 22% (1,388 acres) of

the single tract which the Tuscarora Indian Nation

has owned and occupied as its homeland for 150

years.

FN2 Admittedly this *125 taking of so large a

part of the lands will interfere with the purpose for

which this Indian reservation was created-a permanent home for the Tuscaroras. I not only believe

that the Federal Power Act does not authorize this

taking, but that the Act positively prohibits it.

Moreover, I think the taking also violates the Nation's long-established policy of recognizing and

preserving Indian reservations for tribal use, and

that it constitutes a breach of Indian treaties recognized by Congress since at least 1794.

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FN1. 41 Stat. 1063, as amended, 16 U.S.C.

ss 791a-828c, 16 U.S.C.A. ss 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. ss 836, 836a, 16 U.S.C.A. ss 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.

Whether the Federal Power Act permits this

condemnation depends, in part, upon whether the

Tuscarora Reservation is a ‘reservation’ within the

meaning of the Act. For if it is, s 4(e) forbids the

taking of any part of the lands except after a finding

by the Federal Power Commission that the taking

‘will not interfere or be inconsistent with the purpose for which such reservation was created or acquired * * *.'FN3 There is no such finding here. In

fact, the Commission found that the inundation of

so great a part of the Tuscarora Reservation by the

waters *126 of the proposed reservoir ‘will interfere and will be inconsistent with the purpose for

which such reservation was created or acquired.’ 21

F.P.C. 146, 148. If these Tuscarora homelands are

‘tribal lands embraced within’ an Indian reservation

as used in s 3(2)FN4 they constitute a ‘reservation’

**559 for purposes of s 4(e), and therefore the taking here is unauthorized because the requisite finding could not be made.

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:

‘(l)icenses 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

reservations * * *.’

Title 16 U.S.C. s 797(e), 16 U.S.C.A. s

797(e), enacted as s 4(d) in the Federal

Water Power Act of 1920, 41 Stat. 1063,

was re-enacted in the 1935 amendments,

49 Stat. 838, as s 4(e) and is referred to as

such throughout.

FN4. Section 3, 16 U.S.C. s 796, 16

U.S.C.A. s 796, is the general definitions

section of the Federal Power Act, and was

first enacted in the Federal Water Power

Act of 1920, 41 Stat. 1063. Section 3(2)

defines the term ‘reservations.’

I believe the plain meaning of the words used

in the Act, taken alone, and their meaning in the

light of the historical background against which

they must be viewed, require the conclusion that

these lands are a ‘reservation’ entitled to the protections of s 4(e) of the Act. ‘Reservation,’ as used in s

4(e), is defined by s 3(2), which provides:

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“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

purposes; but shall not include national monuments

or national parks * * *.' (Emphasis supplied.)

The phrase ‘tribal lands embraced within Indian reservations' surely includes these Tuscarora

lands. They are tribal lands. They are embraced

within the Tuscarora Indian Nation's reservation.

The lands have been called a reservation for more

than 150 years. They have been so described in

treaties, Acts of Congress, court decisions, Indian

agency reports, books, articles, *127 and maps. In

fact, so far as I can ascertain, they have never been

called anything else, anywhere or at any time-until

today. Even the Court of Appeals and the Federal

Power Commission, and the briefs and record in

this Court, quite naturally refer to this

10-square-mile tract of land as an Indian reservation. The Court itself seems to accept the fact that

the Tuscarora Nation lives on a reservation according to (in its words) the ‘generally accepted standards and common understanding’ of that term.

The Court, however, decides that in the Federal

Power Act Congress departed from the meaning

universally given the phrase ‘tribal lands embraced

within Indian reservations' and defined the phrase,

the Court says, ‘artificially.’ The Court believes

that the words ‘other lands * * * owned by the

United States,’ which follow, were intended by

Congress to limit the phrase to include only those

reservations to which the United States has technical legal title. By the Court's ‘artificial’ interpretation, the phrase turns out to mean ‘tribal lands embraced within Indian reservations-except when ‘the

lands involved are owned in fee simple by the

(Indians).“FN5

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’ * * *.'

Creating such a wholly artificial and limited

definition, so new and disruptive, imposes a heavy

burden of justification upon the one who asserts it.

We are told that many tribes own their reservation

lands. The well-known Pueblos of New Mexico

own some 700,000 acres of land in fee. All such reservation lands are put in jeopardy by the Court's

strained interpretation. The Court suggests no

plausible reason, or any reason at all for that matter,

why Congress should or would have sought artificially to place those Indians who hold legal title to

their reservation*128 lands in such a less-favored

position.FN6 The fact that the Tuscarora **560 Nation holds technical legal title is fortuitous and an

accidental circumstance probably attributable to the

Indian land policy prevailing at the early date this

reservation was established. Their lands, like all

other Indian tribal lands, can be sold, leased or subjected to easements only with the consent of the

United States Government. Congress and government agencies have always treated the Tuscarora

Reservation the same as all others,FN7 and there is

no reason even to suspect that Congress wanted to

treat it differently when it passed the Federal Power

Act.

FN6. In United States v. Candelaria, 271

U.S. 432, 440, 46 S.Ct. 561, 562, 70 L.Ed.

1023, and United States v. Sandoval, 231

U.S. 28, 39, 34 S.Ct. 1, 3, 58 L.Ed. 107,

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, 18 L.Ed. 708, 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, 64

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S.Ct. 985, 987, 88 L.Ed. 1326 (‘The governmental interest * * * is as clear as it

would be if the fee were in the United

States'); State of Minnesota v. United

States, 305 U.S. 382, 59 S.Ct. 292, 83

L.Ed. 235; Heckman v. United States, 224

U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820.

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. s 233, 25 U.S.C.A. s 233, which

specifically subjects all New York tribes to

Rev.Stat. s 2116 (1875), 25 U.S.C. s 177,

25 U.S.C.A. s 177, which bans alienation

of their lands without the consent of Congress. And see generally notes 6, supra, 9,

11, 16, 17, 20, infra.

It is necessary to add no more than a word

about the legislative history of this section which

the Court relies on. The Court points out that the

House version of the 1920 Federal Water Power

Act (now called the Federal Power Act) defined

‘reservations' as meaning only ‘lands and interests

in lands owned by the United States.’ In this definition of ‘reservations' the Senate inserted new words

which included the present phrase ‘tribal lands embraced within Indian reservations.’ If the only *129

Indian lands Congress sought to cover by this section were those to which the United States had title,

the Senate addition served no purpose. For the

House bill covered all ‘lands * * * owned by the

United States.’ The only reason for the Senate additions, it seems to me, was to cover lands, like those

of the Tuscarora Nation here, title to which was not

in the United States Government.

The Court also undertakes to support its

‘artificial’ definition of ‘tribal lands embraced

within Indian reservations' by saying that the Congress knew, by a prior decision of this Court, that it

was acting under Art. IV, s 3, cl. 2, of the Constitution, which gives Congress power, as the Court

says, ‘to deal only with ‘the Territory or other Property belonging to the United States. “”’' In the first

place I do not understand how the Court can say

with such assurance that the Congress was acting

only under that clause, as there is no evidence

whatsoever that Congress expressed itself on this

matter. Moreover, it seems far more likely to me

that in this phrase regulating Indian tribes Congress

was acting under Art. I, s 8, cl. 3, which empowers

Congress ‘To regulate Commerce with * * * the Indian Tribes.’

Even accepting for a moment the Court's

‘artificial’ definition, I think the United States owns

a sufficient ‘interest’ in these Tuscarora homelands

to make them a ‘reservation’ within the meaning of

the Act. Section 3(2) does not merely require a

finding in order to take ‘tribal lands embraced within Indian reservations'; the same finding is required

in order to take ‘other * * * interests in lands

owned by the United States' whether tribal or not.

Or, again accepting the Court's conception, if the

phrase ‘tribal lands embraced within Indian reservations' must be modified by the words which follow ‘lands owned by the United States,’ it must

also be modified by the words ‘interests in lands

owned by the United States,’ which also follow.

Read this way, the *130 section defines

‘reservations' as tribal lands in **561 which the

United States owns ‘interests.’ Thus again a finding

under s 4(e) is required even under the Court's own

technical approach if the United States owns

‘interests' in the lands. I think it does.

Certainly the words Congress used, ‘interests

in lands,’ are not surplusage; they have some meaning and were intended to accomplish some purpose

of their own. The United States undoubtedly controls (has ‘interests in’) many lands in this country

that it does not own in fee simple. This is surely

true as to all Indian tribal lands, even though the Indians own the fee simple title.FN8 Such lands cannot be sold or leased without the consent of the

United States Government. The Secretary of the Interior took this position about this very reservation

in 1912 when the Tuscaroras desired to lease a part

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of their lands to private individuals for limestone

quarrying.FN9 And, of course, the long-accepted

concept of a guardian-ward relationship between

the United States and its Indians, with all the requirements of fair dealing and protection that this

involves, means that the Indians are not free to treat

their lands as wholly their own.FN10 Anyone

doubting the *131 extent of ownership interest in

these lands by the United States would have that

doubt rapidly removed should he take a deed from

the Tuscarora Nation without the consent of the

Government. FN11 I cannot agree, therefore, that

this all but technical fee ownership which the

United States has in these lands is inadequate to

constitute the kind of ‘interests in lands owned by

the United States' which requires a s 4(e) finding

before condemnation.

FN8. The Court of Appeals held the United

States had an adequate s 3(2) ‘interest in’

the Tuscarora Reservation to require a s

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, 10

S.Ct. 965, 971, 34 L.Ed. 295; Elk v.

Wilkins, 112 U.S. 94, 99, 5 S.Ct. 41, 44,

28 L.Ed. 643; Ex parte Crow Dog, 109

U.S. 556, 569, 3 S.Ct. 396, 27 L.Ed. 1030;

Cherokee Nation v. Georgia, 5 Pet. 1, 17, 8

L.Ed. 25. See also United States v. Candelaria, 271 U.S. 432, 442, 46 S.Ct. 561,

563, 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, 6

S.Ct. 1109, 1114, 30 L.Ed. 228 (‘duty of

protection’), and Chief Justice Marshall's

leading opinion in Johnson v. M'Intosh, 8

Wheat. 543, 591, 5 L.Ed. 681 (‘Indians

(are) to be protected * * * in the possession

of their lands').

FN11. In United States v. Candelaria, 271

U.S. 432, 46 S.Ct. 561, 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.

After the Court concludes that because of its

interpretation of the definition of ‘reservations' in s

3(2) a finding is not required by s 4(e) to take the

Tuscarora lands, it goes on to find the necessary

congressional authorization to take these lands in

the general condemnation provisions of s 21. 16

U.S.C. s 814, 16 U.S.C.A. s 814. I believe that this

is an incorrect interpretation of the general power to

condemn under s 21, both because Congress specifically provided for the taking of all Indian reservation lands it wanted taken in other sections of the

same Act, and because a taking under s 21 is contrary to the manner in which Congress has traditionally gone about the taking of Indian lands-such

as Congress here carefully prescribed in s 4(e).

Congress has been consistent in generally exercising this power to take Indian lands only in accord with prior treaties, only when the Indians

themselves consent to be moved, and only by Acts

which either specifically refer to Indians or by their

terms must include Indian lands. **562 None of

these conditions is satisfied here if s 21 is to be relied upon. The specific and detailed provisions of s

10(e), 16 U.S.C. s 803(e), 16 U.S.C.A. s 803(e),

upon which the Court relies, only emphasize to me

the kind of care *132 Congress always takes to protect the just claims of Indians to reservations like

this one.

The cases which the Court cites in its opinion

do not justify the broad meaning read into s 21.

Many of those cases deal with taxation-federal and

state. The fact that Indians are sometimes taxed like

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other citizens does not even remotely indicate that

Congress has weakened in any way its policy to

preserve ‘tribal lands embraced within Indian reservations.’ Moreover, cases dealing with individuals

who are not Indians are not applicable to tribal reservations. For example, Shaw v. Gibson-Zahniser

Oil Corp., 276 U.S. 575, 48 S.Ct. 333, 72 L.Ed.

709, cited by the Court, did not involve tribal lands.

That case only held that a State may tax the production of an oil company even though it was derived

from oil company lands leased from an Indian. The

owner there was an individual Indian, not a tribe,

and the lands were not and never had been a part of

an Indian reservation, but rather had been purchased for this single Indian with the royalties he

obtained from his own original restricted allotted

lands. In Henkel v. United States, 237 U.S. 43, 35

S.Ct. 536, which involved the taking of Indian

lands for the vast western reclamation project, the

Court not only found that it had been ‘well known

to Congress' that Indian lands would have to be

taken, 237 U.S. at page 50, 35 S.Ct. at page 539,

but the treaty with the Indians involved in that case

contained a specific consent by the Indians to such

a taking. 29 Stat. 356, quoted 237 U.S. at 48, 49, 35

S.Ct. at 538. There was no provision even resembling this in the Treaty of 1794 with the Tuscaroras.

Other cases relied on by the Court, such as Spalding v. Chandler, 160 U.S. 394, 16 S.Ct. 360, 40

L.Ed. 469, and Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 10 S.Ct. 965, all involved

statutes that made it clear that Congress was well

aware it was authorizing the taking of Indians'

lands-unlike the history of s 21 of the Federal

Power Act and the 1957 Niagara Power Act, 71

Stat. 401, 16 U.S.C. ss 836, 836a, 16 U.S.C.A. ss

836, 836a, involved here.

*133 All that I have said so far relates to what

the Court calls the ‘plain words' of the statute. I interpret these ‘plain words' differently than the

Court. But there are other more fundamental and

decisive reasons why I disagree with the Court's interpretation of the Federal Power Act as it relates to

Indians. The provisions in s 4(e) which protect Indian reservations against destruction by condemnation cannot be properly construed unless considered

as a part of a body of Indian laws built up

throughout this Nation's history, and extending

back even to the Articles of Confederation. It is necessary to summarize briefly a part of that history.

The experience of the Tuscarora Nation illustrates this history as well as that of any Indian tribe.

FN12 When this **563 country was discovered the

Tuscaroras lived and owned their homelands in the

area that later became North Carolina. Early settlers

wanted their lands. The Tuscaroras did not want to

give them up. Numerous conflicts arose because of

this clash of desires. Finally, about 1710, there was

a war between the Tuscaroras and the colonists in

North and South Carolina. The Indians were routed.

A majority of their warriors were killed. Hundreds

of their men, women and children were captured

and sold into slavery. Nearly all of the remainder

*134 of the tribe fled. They found a home in distant

New York with the Iroquois Confederation of Nations. With their acceptance into the Confederation

about 1720 it became known as the Six Nations.

Historical accounts indicate that about 1780 those

Tuscaroras who had supported America in the Revolution were compelled to leave their first residence in New York because of the hostility of Indians who had fought with the British against the

Colonies.FN13 They migrated to the Village of

Lewiston, New York, near Niagara Falls and settled

in that area as their new home. They have remained

there ever since-nearly 180 years. When their legal

right to this land came into question about 1800 the

Seneca Indians and the Holland Land Company

both ‘thought their claim so just'FN14 that they

gave the Tuscarora Nation deeds to three square

miles of the area they had been occupying for about

20 years. With the assistance of Presidents Washington and Jefferson and the Congress, the Tuscaroras were able, through the Secretary of War, to

sell their vast North Carolina lands for $15,000.

With this money, held by the Secretary of War as

trustee, additional lands adjoining those received

from the Seneca Indians and the Holland Land

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Company were obtained for the Tuscarora Nation

and the title held in trust by the Secretary of War

from 1804 to 1809. The Secretary supervised the

payments to the Holland Land Company, from

which the additional 4,329 acres were obtained, and

when payments were completed he conveyed these

lands to the Tuscarora Nation.FN15 The 1,383

acres of the Tuscarora*135 Reservation involved

today is a part of this purchase. Despite all this and

the Government's continuing guardianship over

these Indians and their lands throughout the years

the Court attempts to justify this taking on the

single ground that the Indians, not the United States

Government, now own the fee simple title to this

property.

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, D.C.W.D.N.Y. 1958, 164

F.Supp. 107; People ex rel. Cusick v. Daly,

1914, 212 N.Y. 183, 190, 105 N.E. 1048,

1050.

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. ‘(I)n

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, 15

L.Ed. 684.

In 1838 the Government made a treaty with the

Tuscaroras under which they were to be removed to

other parts of the United States.FN16 The removal

was to be **564 carried *136 out under the authority of a Congressional Act of 1830, 4 Stat. 411,

which provided a program for removing the Indians

from the Eastern United States to the West. Section

3 of that Act provided authority ‘for the President

solemnly to assure the tribe or nation with which

the exchange is made, that the United States will

forever secure and guaranty to them, and their heirs

or successors, the country so exchanged with them

* * *.’ The same Act also provided ‘That nothing in

this act contained shall be construed as authorizing

or directing the violation of any existing treaty

between the United States and any of the Indian

tribes.’ Id., s 7.

FN16. Treaty of January 15, 1838, 7 Stat.

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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, 46

S.Ct. 561, 563; United States v. Kagama,

118 U.S. 375, 381, 6 S.Ct. 1109, 30 L.Ed.

228; Worcester v. Georgia, 6 Pet. 515,

551-552, 8 L.Ed. 483; Cherokee Nation v.

State of Georgia, 5 Pet. 1, 17-18, 8 L.Ed.

25. 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 NonIntercourse Act of July 22, 1790, 1 Stat.

137, which provided, in s 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. s 177, 25 U.S.C.A. s

177, as modified by s 2079, Rev.Stat. 25

U.S.C. s 71, 25 U.S.C.A. s 71.

The Tuscarora Nation then had such a treaty

with the United States, which had been in existence

since 1764 and is still recognized by Congress

today. FN17 The treaty *137 was made with all the

Six Nations, at a time when the Tuscarora Nation

had been a member for over 70 years, and one of

their representatives signed the treaty.FN18 In Article III of the Treaty the United States Government

made this solemn promise:

FN17. Treaty of November 11, 1794, 7

Stat. 44. Article VI of that Treaty provides:

‘(B)ecause 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. * * * (I)t 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 1764 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

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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.

**565 ‘Now, the United States acknowledge all

the land within the aforementioned boundaries, to

be the property of the Seneka nation; and the

United States will never claim the same, nor disturb

the Seneka nation, nor any of the Six Nations, or of

their Indian friends residing thereon and united

with them, in the free use and enjoyment thereof:

but it shall remain theirs, until they choose to sell

the same to the people of the United States, who

have the right to purchase.’

This article of the 1794 Treaty substantially repeated the promise given the Tuscaroras in the prior

1784 Treaty, 7 Stat. 15, made before our Constitution was adopted, that ‘The Oneida and Tuscarora

nations shall be secured in the possession of the

lands on which they are settled.’

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 *138 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, 18 L.Ed.

708, where the Court said, about this treaty:

FN19. The Kansas Indians, 5 Wall. 737,

760, 18 L.Ed. 667 (‘enlarged rules of construction are adopted in reference to Indian

treaties'); Worcester v. State of Georgia, 6

Pet. 515, 582, 8 L.Ed. 483 (‘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. State of Washington, 315 U.S. 681,

684-685, 62 S.Ct. 862, 864, 86 L.Ed. 1115

(‘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, 16 S.Ct. 360, 364, 40 L.Ed. 469; Elk

v. Wilkins, 112 U.S. 94, 100, 5 S.Ct. 41,

44, 28 L.Ed. 643; Ex parte Crow Dog. 109

U.S. 556, 572, 3 S.Ct. 396, 406, 27 L.Ed.

1030; United States v. Rogers, 4 How.

567, 572, 11 L.Ed. 1105.

‘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, *139 whether by private citizens

or government, that might result in depriving Indian

tribes of their homelands against their will.FN20

**566 President Jackson, in 1835, explained the

purpose of the removal and reservation program as

*140 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

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promise to the Indians:

FN20. The origins of this policy extend into pre-Colonial British history. As Chief

Justice Marshall said in Worcester v. State

of Georgia, 6 Pet. 515, 547, 8 L.Ed. 483, 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, 16

S.Ct. 360, 364, 40 L.Ed. 469; United States

v. Forty-three Gallons of Whiskey, 93 U.S.

188, 197, 23 L.Ed. 846; The New York Indians, 5 Wall. 761, 768, 18 L.Ed. 708;

Cherokee Nation v. Georgia, 5 Pet. 1, 17, 8

L.Ed. 25; Johnson v. M'Intosh, 8 Wheat.

543, 5 L.Ed. 681. And see 48 Stat. 987, 25

U.S.C. s 476, 25 U.S.C.A. s 476; 25 U.S.C.

ss 311-328, 25 U.S.C.A. ss 311-328 and 25

CFR s 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 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.

‘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

FN22. Cong.Globe, 33d Cong., 1st Sess.,

App. 202. See 1 Morison and Commager,

The Growth of the American Republic

(1950), 621.

It was to carry out these sacred promises made

to protect the security of Indian reservations that

Congress adopted s 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 wil have cost over

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$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 *141 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. **567 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 of Internal Revenue v.

Estate of Church, 335 U.S. 632, 639-640, 69 S.Ct.

322, 326, 93 L.Ed. 288. 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

FN23. See, e.g., United States v. Hellard,

322 U.S. 363, 367, 64 S.Ct. 985, 988, 88

L.Ed. 1326 (‘the power of Congress over

Indian affairs is plenary’); United States v.

Sandoval, 231 U.S. 28, 45-46, 34 S.Ct. 1,

5, 58 L.Ed. 107; Tiger v. Western Investment Co., 221 U.S. 286, 315, 31 S.Ct. 578,

586, 55 L.Ed. 738 (‘It is for that body

(Congress), and not the courts'); Lone

Wolf v. Hitchcock, 187 U.S. 553, 565, 23

S.Ct. 216, 221, 47 L.Ed. 299 (‘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, 11

L.Ed. 1105.

*142 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 hometheir 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.

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.

There may be instances in which Congress has

broken faith with the Indians, although examples of

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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.

U.S. 1960.

Federal Power Commission v. Tuscarora Indian Nation

362 U.S. 99, 33 P.U.R.3d 18, 80 S.Ct. 543, 4

L.Ed.2d 584

END OF DOCUMENT

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