PART 2

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FN12  MEANWHILE, ON APRIL 15, 1958, THE POWER AUTHORITY OF NEW YORK
COMMENCED SO-CALLED "APPROPRIATION" PROCEEDINGS UNDER SEC. 30 OF THE
NEW YORK STATE HIGHWAY LAW, MCKINNEY'S CONSOL.  LAWS, C. 25, AND ALSO
UNDER ART. 5, TIT. 1, OF THE NEW YORK PUBLIC AUTHORITIES LAW,
MCKINNEY'S CONSOL.  LAWS, C. 43-A, TO CONDEMN THE 1,383 ACRES OF
TUSCARORA LANDS FOR RESERVOIR USE.    ON APRIL 18, 1958, THE TUSCARORA
INDIAN NATION FILED A COMPLAINT IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK AGAINST THE POWER AUTHORITY AND THE
SUPERINTENDENT OF PUBLIC WORKS OF NEW YORK, SEEKING (1) A DECLARATORY
JUDGMENT THAT THE POWER AUTHORITY HAD NO RIGHT OR POWER TO TAKE ANY OF
ITS LANDS WITHOUT THE EXPRESS AND SPECIFIC CONSENT OF THE UNITED
STATES, AND (2) A PERMANENT INJUNCTION AGAINST THE APPROPRIATION OR
CONDEMNATION OF ANY OF ITS LANDS.  THE COURT ISSUED A TEMPORARY
RESTRAINING ORDER.  THE ACTION, BEING A "LOCAL" ONE, WAS THEN
TRANSFERRED TO THE DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW
YORK.  AFTER HEARING, THAT COURT ON JUNE 24, 1958, DENIED THE RELIEF
PRAYED, DISSOLVED THE RESTRAINING ORDER, AND DISMISSED THE COMPLAINT ON
THE MERITS.  TUSCARORA NATION OF INDIANS V. POWER AUTHORITY OF THE
STATE OF NEW YORK, 164 F. SUPP. 107. 

ON APPEAL, THE SECOND CIRCUIT AFFIRMED IN PART AND REVERSED IN PART. 
IT HELD THAT THE POWER AUTHORITY WAS AUTHORIZED UNDER PUBLIC LAW 58-159
AND THE FEDERAL POWER ACT AND BY THE COMMISSION'S LICENSE THEREUNDER OF
JANUARY 30, 1958, TO TAKE THE PART OF THE TUSCARORA LANDS NEEDED FOR
THE RESERVOIR, BUT THAT THEY COULD BE TAKEN ONLY BY A CONDEMNATION
ACTION IN A STATE OR FEDERAL COURT IN THE DISTRICT WHERE THE PROPERTY
IS LOCATED UNDER AND IN THE MANNER PROVIDED BY SEC. 21 OF THE FEDERAL
POWER ACT (16 U.S.C. SEC. 814), AND NOT BY "APPROPRIATION" PROCEEDINGS
UNDER THE NEW YORK LAWS REFERRED TO.  TUSCARORA NATION OF INDIANS V.
POWER AUTHORITY OF THE STATE OF NEW YORK, 257 F.2D 885.  THE TUSCARORA
INDIAN NATION'S PETITION TO THIS COURT FOR A WRIT OF CERTIORARI WAS
DENIED ON OCTOBER 13, 1958.  358 U.S. 841.  THE SUPERINTENDENT OF
PUBLIC WORKS OF NEW YORK, A RESPONDENT IN THE SECOND CIRCUIT
PROCEEDINGS, HAS APPEALED TO THIS COURT FROM SO MUCH OF THE JUDGMENT AS
DENIED A RIGHT TO ACQUIRE THE TUSCARORA LANDS BY APPROPRIATION
PROCEEDINGS UNDER THE NEW YORK LAWS, AND THAT APPEAL IS NOW PENDING
HERE.  (NO. 4, OCT. TERM, 1959.) 

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. SECS. 177, 233." 

FN14  SEE H.R. REP. NO. 715, 65TH CONG., 2D SESS., P. 22; S. REP. NO.
180, 66TH CONG., 1ST SESS., P. 10. 

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. 

FN17  THE TUSCARORAS ALSO RELY UPON 25 U.S.C. SEC. 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." 

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. 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 ONANDAGAS, 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 OF FORT HARMAR OF 1789 (7 STAT. 33) WITH THE SIX NATIONS, THE
UNITED STATES PROMISED TO HOLD THE ONEIDAS AND THE TUSCARORAS SECURE IN
THE LANDS UPON WHICH THEY THEN LIVED - WHICH WERE THE LANDS IN CENTRAL
NEW YORK ABOUT 200 MILES EAST OF THE LANDS IN QUESTION.  BY THE SAME
TREATIES THE UNITED STATES PROMISED TO SECURE TO THE SIX NATIONS A
TRACT OF LAND IN WESTERN NEW YORK IN THE VICINITY OF THE NIAGARA
RIVER.  BY THE TREATY OF CANANDAIGUA OF 1794 (7 STAT. 44) BETWEEN THE
UNITED STATES AND THE SIX NATIONS, WHICH SUPERSEDED THE PRIOR TREATIES
(EXCEPT, BY ARTICLE VI, THE UNITED STATES REMAINED 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 ONWED 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 HE WOULD BUY OUT THE
SENECAS' RIGHTS OF OCCUPANCY FOR AND ON BEHALF OF THE HOLLAND LAND
COMPANY.  AND AT THE TREATY OF BIG TREE OF 1797 (7 STAT. 601), MORRIS,
WITH THE APPROBATION OF THE UNITED STATES, PURCHASED THE SENECAS'
RIGHTS OF OCCUPANCY IN THE LANDS HERE IN QUESTION FOR THE HOLLAND LAND
COMPANY.  THUS THE LANDS IN QUESTION WERE ENTIRELY FREED FROM THE
EFFECTS OF ALL THEN EXISTING TREATIES WITH THE INDIANS, AND THE
TUSCARORAS' TITLE TO THEIR PRESENT LANDS DERIVES, AS EARLIER STATED,
FROM THE HOLLAND LAND COMPANY (SEE NOTE 10 FOR FURTHER DETAILS) AND HAS
NEVER SINCE BEEN SUBJECT TO ANY TREATY BETWEEN THE UNITED STATES AND
THE TUSCARORAS. 

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% (1,383 ACRES) OF THE SINGLE TRACT WHICH THE TUSCARORA
INDIAN NATION HAS OWNED AND OCCUPIED AS ITS HOMELAND FOR 150 YEARS. 
(FN2)  ADMITTEDLY THIS 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. 

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, SEC. 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 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 SEC. 3(2) (FN4) THEY CONSTITUTE A "RESERVATION" FOR PURPOSES OF
SEC. 4(E), AND THEREFORE THE TAKING HERE IS UNAUTHORIZED BECAUSE THE
REQUISITE FINDING COULD NOT BE MADE. 

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 SEC. 4(E) OF
THE ACT.  "RESERVATION," AS USED IN SEC. 4(E), IS DEFINED BY SEC. 3(2),
WHICH PROVIDES: 

"'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  ...  ." 

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, 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) 

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 LANDS IN SUCH A LESS-FAVORED POSITION.  (FN6)  THE
FACT THAT THE TUSCARORA 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. 

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 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, SEC. 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, SEC. 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. 
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 SECTION DEFINES "RESERVATIONS" AS TRIBAL LANDS IN
WHICH THE UNITED STATES OWNS "INTERESTS."  THUS AGAIN A FINDING UNDER
SEC. 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 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 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 SEC. 4(E) FINDING BEFORE CONDEMNATION. 

AFTER THE COURT CONCLUDES THAT BECAUSE OF ITS INTERPRETATION OF THE
DEFINITION OF "RESERVATIONS" IN SEC. 3(2) A FINDING IS NOT REQUIRED BY
SEC. 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 SEC. 21.  16 U.S.C. SEC. 814.  I BELIEVE
THAT THIS IS AN INCORRECT INTERPRETATION OF THE GENERAL POWER TO
CONDEMN UNDER SEC. 21, BOTH BECAUSE CONGRESS SPECIFICALLY PROVIDED FOR
THE TAKING OF ALL INDIAN RESERVATION LANDS IT WANTED TAKEN IN OTHER
CONTRARY TO THE MANNER IN WHICH CONGRESS HAS TRADITIONALLY GONE ABOUT
THE TAKING OF INDIAN LANDS - SUCH AS CONGRESS HERE CAREFULLY PRESCRIBED
IN SEC. 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.  NONE OF THESE CONDITIONS IS SATISFIED HERE IF
SEC. 21 IS TO BE RELIED UPON.  THE SPECIFIC AND DETAILED PROVISIONS OF
SEC. 10(E), 16 U.S.C. SEC. 803(E), UPON WHICH THE COURT RELIES, ONLY
EMPHASIZE TO ME THE KIND OF CARE 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 SEC. 21.  MANY OF THOSE CASES DEAL WITH TAXATION - FEDERAL AND
STATE.  THE FACT THAT INDIANS ARE SOMETIMES TAXED LIKE 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, 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
ALLOTED LANDS.  IN HENKEL V. UNITED STATES, 237 U.S. 43, 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 50, 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.  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, AND CHEROKEE NATION V. SOUTHERN
KANSAS R. CO., 135 U.S. 641, ALL INVOLVED STATUTES THAT MADE IT CLEAR
THAT CONGRESS WAS WELL AWARE IT WAS AUTHORIZING THE TAKING OF INDIANS'
LANDS - UNLIKE THE HISTORY OF SEC. 21 OF THE FEDERAL POWER ACT AND THE
1957 NIAGARA POWER ACT, 71 STAT. 401, 16 U.S.C. SECS. 836-836A,
INVOLVED HERE. 

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 SEC.
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 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 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 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 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. 

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 CARRIED OUT UNDER THE AUTHORITY OF A
CONGRESSIONAL ACT OF 1830, 4 STAT. 411, WHICH PROVIDED A PROGRAM FOR
REMOVING THE INDIANS FROM THE EASTERN UNIRED STATES TO THE WEST. 
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.,
SEC. 7. 

THE TUSCARORA NATION THEN HAD SUCH A TREATY WITH THE UNITED STATES,
WHICH HAD BEEN IN EXISTENCE SINCE 1794 AND IS STILL RECOGNIZED BY
CONGRESS TODAY.  (FN17)  THE TREATY 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: 

"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 TIME IT HAS
ALWAYS BEEN THE ESTABLISHED RULE THAT THIS COURT WOULD GIVE TREATIES
WITH THE INDIANS AN ENLARGED INTERPRETATION; ONE THAT WOULD ASSURE THEM
BEYOND ALL DOUBT THAT THIS GOVERNMENT DOES NOT ENGAGE IN SHARP
PRACTICES WITH ITS WARDS.  (FN19) THIS VERY PRINCIPLE OF INTERPRETATION
WAS APPLIED IN THE CASE OF THE NEW YORK INDIANS, 5 WALL.  761, 768,
WHERE THE COURT SAID, ABOUT THIS TREATY:    "IT HAS ALREADY BEEN SHOWN
THAT THE UNITED STATES HAVE ACKNOWLEDGED THE RESERVATIONS TO BE THE
PROPERTY OF THE SENECA NATION - THAT THEY WILL NEVER CLAIM THEM NOR
DISTURB THIS NATION IN THEIR FREE USE AND ENJOYMENT, AND THAT THEY
SHALL REMAIN THEIRS UNTIL THEY CHOOSE TO SELL THEM.  THESE ARE THE
GUARANTEES GIVEN BY THE UNITED STATES, AND WHICH HER FAITH IS PLEDGED
TO UPHOLD." 

AFTER THE TREATY OF 1838 WAS SIGNED, IN WHICH THE TUSCARORAS AGREED
TO GO WEST, THEY DECIDED NOT TO DO SO, AND THE GOVERNMENT RESPECTED
THEIR OBJECTIONS AND LEFT THEM WITH THEIR LAND.  THEY HAVE, SINCE THAT
TIME, HELD IT AS OTHER INDIANS HAVE THROUGHOUT THE NATION.  THIS HAS
BEEN IN ACCORD WITH THE SETTLED GENERAL POLICY TO PRESERVE SUCH
RESERVATIONS AGAINST ANY KIND OF TAKING, WHETHER BY PRIVATE CITIZENS OR
GOVERNMENT, THAT MIGHT RESULT IN DEPRIVING INDIAN TRIBES OF THEIR
HOMELANDS AGAINST THEIR WILL.  (FN20)  PRESIDENT JACKSON, IN 1835,
EXPLAINED THE PURPOSE OF THE REMOVAL AND RESERVATION PROGRAM AS MEANING
THAT, "THE PLEDGE OF THE UNITED STATES HAS BEEN GIVEN BY CONGRESS THAT
THE COUNTRY DESTINED FOR THE RESIDENCE OF THIS PEOPLE SHALL BE FOREVER
'SECURED AND GUARANTEED TO THEM.'"  (FN21)  THIS POLICY WAS SO WELL
SETTLED THAT WHEN THE MISSOURI COMPROMISE BILL WAS BEING DISCUSSED IN
CONGRESS IN 1854 TEXAS SENATOR SAM HOUSTON USED THIS PICTURESQUE
LANGUAGE TO DESCRIBE THE GOVERNMENT'S PROMISE TO THE INDIANS: 

"AS LONG AS WATER FLOWS, OR GRASS GROWS UPON THE EARTH, OR THE SUN
RISES TO SHOW YOUR PATHWAY, OR YOU KINDLE YOUR CAMP FIRES, SO LONG
SHALL YOU BE PROTECTED BY THIS GOVERNMENT, AND NEVER AGAIN REMOVED FROM
YOUR PRESENT HABITATIONS."  (FN22) 

IT WAS TO CARRY OUT THESE SACRED PROMISES MADE TO PROTECT THE
SECURITY OF INDIAN RESERVATIONS THAT CONGRESS ADOPTED SEC. 4(E) WHICH
FORBIDS THE TAKING OF AN INDIAN RESERVATION FOR A POWER PROJECT IF IT
WILL "INTERFERE  ...  WITH THE PURPOSE FOR WHICH SUCH RESERVATION WAS
CREATED OR ACQUIRED  ... ."  BUT NO SUCH FINDING WAS MADE OR COULD BE
MADE HERE. 

THERE CAN BE NO DOUBT AS TO THE IMPORTANCE OF THIS POWER PROJECT.  IT
WILL BE ONE OF THE LARGEST IN THIS COUNTRY AND PROBABLY WILL HAVE COST
OVER $700,000,000 WHEN IT IS COMPLETED.  IT IS TRUE THAT IT WILL
UNDOUBTEDLY COST MORE TO BUILD A PROPER RESERVOIR WITHOUT THE TUSCARORA
LANDS, AND THAT THERE HAS ALREADY BEEN SOME DELAY BY REASON OF THIS
CONTROVERSY.  THE USE OF LANDS OTHER THAN THOSE OF THE TRIBE WILL CAUSE
THE ABANDONMENT OF MORE HOMES AND THE REMOVAL OF MORE PEOPLE.  IF THE
DECISION IN THIS CASE DEPENDED EXCLUSIVELY UPON COST AND INCONVENIENCE,
THE AUTHORITY UNDOUBTEDLY WOULD HAVE BEEN JUSTIFIED IN USING THE
TUSCARORA LANDS.  BUT THE FEDERAL POWER ACT REQUIRES FAR MORE THAN THAT
TO JUSTIFY BREAKING UP THIS INDIAN RESERVATION. 

THESE INDIANS HAVE A WAY OF LIFE WHICH THIS GOVERNMENT HAS SEEN FIT
TO PROTECT, IF NOT ACTUALLY TO ENCOURAGE.  COGENT ARGUMENTS CAN BE MADE
THAT IT WOULD BE BETTER FOR ALL CONCERNED IF INDIANS WERE TO ABANDON
THEIR OLD CUSTOMS AND HABITS, AND BECOME INCORPORATED IN THE
COMMUNITIES WHERE THEY RESIDE.  THE FACT REMAINS, HOWEVER, THAT THEY
HAVE NOT DONE THIS AND THAT THEY HAVE CONTINUED THEIR TRIBAL LIFE WITH
TRUST IN A PROMISE OF SECURITY FROM THIS GOVERNMENT. 

OF COURSE, CONGRESS HAS POWER TO CHANGE THIS TRADITIONAL POLICY WHEN
IT SEES FIT.  BUT WHEN SUCH CHANGES HAVE BEEN MADE CONGRESS HAS
ORDINARILY BEEN SCRUPULOUSLY CAREFUL TO SEE THAT NEW CONDITIONS LEAVE
THE INDIANS SATISFIED.  UNTIL CONGRESS HAS A CHANCE TO EXPRESS ITSELF
FAR MORE CLEARLY THAN IT HAS HERE THE TUSCARORAS ARE ENTITLED TO KEEP
THEIR RESERVATION.  IT WOULD BE FAR BETTER TO LET THE POWER AUTHORITY
PRESENT THE MATTER TO CONGRESS AND REQUEST ITS CONSENT TO TAKE THESE
LANDS.  IT IS NOT TOO LATE FOR IT TO DO SO NOW.  IF, AS HAS BEEN ARGUED
HERE, CONGRESS HAS ALREADY IMPLIEDLY AUTHORIZED THE TAKING, THERE CAN
BE NO REASON WHY IT WOULD NOT PASS A MEASURE AT ONCE CONFIRMING ITS
AUTHORIZATION.  IT HAS BEEN KNOWN TO PASS A JOINT RESOLUTION IN ONE DAY
WHERE THIS COURT INTERPRETED AN ACT IN A WAY IT DID NOT LIKE.  SEE
COMMISSIONER V. ESTATE OF CHURCH, 335 U.S. 632, 639-640.  SUCH ACTION
WOULD SIMPLY PUT THIS QUESTION OF AUTHORIZATION BACK INTO THE HANDS OF
THE LEGISLATIVE DEPARTMENT OF THE GOVERNMENT WHERE THE CONSTITUTION
WISELY REPOSED IT.  (FN23) 

IT MAY BE HARD FOR US TO UNDERSTAND WHY THESE INDIANS CLING SO
TENACIOUSLY TO THEIR LANDS AND TRADITIONAL TRIBAL WAY OF LIFE.  (FN24)
THE RECORD DOES NOT LEAVE THE IMPRESSION THAT THE LANDS OF THEIR
RESERVATION ARE THE MOST FERTILE, THE LANDSCAPE THE MOST BEAUTIFUL OR
THEIR HOMES THE MOST SPLENDID SPECIMENS OF ARCHITECTURE.  BUT THIS IS
THEIR HOME - THEIR ANCESTRAL HOME.  THERE, THEY, THEIR CHILDREN, AND
THEIR FOREBEARS WERE BORN.  THEY, TOO, HAVE THEIR MEMORIES AND THEIR
LOVES.  SOME THINGS ARE WORTH MORE THAN MONEY AND THE COSTS OF A NEW
ENTERPRISE. 

THERE MAY BE INSTANCES IN WHICH CONGRESS HAS BROKEN FAITH WITH THE
INDIANS, ALTHOUGH EXAMPLES OF SUCH ACTION HAVE NOT BEEN POINTED OUT TO
US.  WHETHER IT HAS DONE SO BEFORE NOW OR NOT, HOWEVER, I AM NOT
CONVINCED THAT IT HAS DONE SO HERE.  I REGRET THAT THIS COURT IS TO BE
THE GOVERNMENTAL AGENCY THAT BREAKS FAITH WITH THIS DEPENDENT PEOPLE. 
GREAT NATIONS, LIKE GREAT MEN, SHOULD KEEP THEIR WORD. 

FN1  41 STAT. 1063, AS AMENDED, 16 U.S.C. SECS. 791A-828C. 

FN2  WHILE THE PETITIONERS HAVE ARGUED THAT CONGRESS AUTHORIZED THIS
TAKING IN THE 1957 NIAGARA POWER ACT, 71 STAT. 401, 16 U.S.C. SECS. 836
836A, THE COURT DOES NOT ACCEPT THIS ARGUMENT.  NEITHER DO I. THERE IS
ABSOLUTELY NO EVIDENCE THAT CONGRESS WAS IN ANY WAY AWARE THAT THESE
TUSCARORA LANDS WOULD BE REQUIRED BY THE NIAGARA POWER PROJECT.  THE
PETITIONERS HAVE ALSO ARGUED THAT CONGRESS IMPLIEDLY AUTHORIZED THIS
TAKING IN THE 1957 ACT BECAUSE IN FACT THE TUSCARORA LANDS ARE
INDISPENSABLE TO THE NIAGARA POWER PROJECT.  BUT THE RECORD SHOWS THAT
THE RESERVATION LANDS ARE NOT INDISPENSABLE.  THE FEDERAL POWER
COMMISSION FIRST FOUND THAT "OTHER LANDS ARE AVAILABLE."  19 F.P.C.
186, 188.  AND SEE 105 U.S. APP. D.C. 146, 151, 265 F.2D 338, 343.  ON
REMAND THE COMMISSION REFUSED TO FIND THAT THE INDIAN LANDS WERE
INDISPENSABLE, ALTHOUGH IT DID FIND THAT USE OF OTHER LANDS WOULD BE
MUCH MORE EXPENSIVE.  21 F.P.C. 146.  AND SEE 21 F.P.C. 273, 275.  THAT
OTHER LANDS ARE MORE EXPENSIVE IS HARDLY PROOF THAT THE TUSCARORA LANDS
ARE INDISPENSABLE TO THIS $700,000,000 PROJECT. 

FN3  SECTION 4(E) CONTAINS THE GENERAL GRANT OF POWER FOR THE FEDERAL
POWER COMMISSION TO ISSUE LICENSES FOR FEDERAL POWER PROJECTS.  THE
PART THAT IS OF CRUCIAL SIGNIFICANCE HERE READS: 

"LICENSES SHALL BE ISSUED WITHIN ANY RESERVATION ONLY AFTER A FINDING
BY THE COMMISSION THAT THE LICENSE WILL NOT INTERFERE OR BE
INCONSISTENT WITH THE PURPOSE FOR WHICH SUCH RESERVATION WAS CREATED OR
ACQUIRED, AND SHALL BE SUBJECT TO AND CONTAIN SUCH CONDITIONS AS THE
SECRETARY OF THE DEPARTMENT UNDER WHOSE SUPERVISION SUCH RESERVATION
FALLS SHALL DEEM NECESSARY FOR THE ADEQUATE PROTECTION AND UTILIZATION
OF SUCH RESERVATION  ...  ." 

TITLE 16 U.S.C. SEC. 797(E), ENACTED AS SEC. 4(D) IN THE FEDERAL
WATER POWER ACT OF 1920, 41 STAT. 1063, WAS RE-ENACTED IN THE 1935
AMENDMENTS, 49 STAT. 838, AS SEC. 4(E) AND IS REFERRED TO AS SUCH
THROUGHOUT. 

FN4  SECTION 3, 16 U.S.C. SEC. 796, IS THE GENERAL DEFINITIONS
WATER POWER ACT OF 1920, 41 STAT. 1063.  SECTION 3(2) DEFINES THE TERM
"RESERVATIONS." 

FN5 THE COURT'S OPINION STATES:  "INASMUCH AS THE LANDS INVOLVED ARE
OWNED IN FEE SIMPLE BY THE TUSCARORA INDIAN NATION  ...  WE HOLD THAT
THEY ARE NOT WITHIN A 'RESERVATION'  ...  ." 

FN6 IN UNITED STATES V. CANDELARIA, 271 U.S. 432, 440, AND UNITED
STATES V. SANDOVAL, 231 U.S. 28, 39, THIS COURT HAS HELD THAT THE
PUEBLOS' FEE SIMPLE OWNERSHIP OF THEIR LANDS HAS NO EFFECT WHATSOEVER
ON THE UNITED STATES' RIGHTS AND RESPONSIBILITIES TOWARDS THESE INDIANS
AND THEIR LANDS.  SEE THE NEW YORK INDIANS, 5 WALL.  761, 767, FOR A
SIMILAR HOLDING AS TO SENECA INDIAN LANDS IN NEW YORK GOVERNED BY THE
SAME TREATY UNDER WHICH THE TUSCARORAS ASSERT THEIR RIGHTS IN THIS
CASE.  AND SEE ALSO UNITED STATES V. HELLARD, 322 U.S. 363, 366 ("THE
GOVERNMENTAL INTEREST  ...  IS AS CLEAR AS IT WOULD BE IF THE FEE WERE
IN THE UNITED STATES"); MINNESOTA V. UNITED STATES, 305 U.S. 382;
HECKMAN V. UNITED STATES, 224 U.S. 413. 

FN7  SEE, E.G., REPORT OF THE COMMISSIONER OF INDIAN AFFAIRS, H.R.
EXEC. DOC. NO. 1, PT. 5, VOL. I, 45TH CONG., 2D SESS. 397, 558-564
(1877).  SEE ALSO 64 STAT. 845, 25 U.S.C. SEC. 233, WHICH SPECIFICALLY
SUBJECTS ALL NEW YORK TRIBES TO REV. STAT. SEC. 2116 (1875), 25 U.S.C.
SEC. 177, WHICH BANS ALIENATION OF THEIR LANDS WITHOUT THE CONSENT OF
CONGRESS.  AND SEE GENERALLY NOTES 6, SUPRA, 9, 11, 16, 17, 20, INFRA. 

FN8  THE COURT OF APPEALS HELD THE UNITED STATES HAD AN ADEQUATE SEC.
3(2) "INTEREST IN" THE TUSCARORA RESERVATION TO REQUIRE A SEC. 4(E)
FINDING.  105 U.S. APP. D.C. 146, 150, 265 F.2D 338, 342.  SEE NOTES 6,
SUPRA, AND 16, INFRA. 

FN9  SEE 51 CONG. REC. 11659-11660, 14561-14562.  AND SEE NOTE 16,
INFRA. 

FN10  SEE, E.G., CHEROKEE NATION V. SOUTHERN KANSAS R. CO., 135 U.S.
641, 657; ELK V. WILKINS, 112 U.S. 94, 99; EX PARTE CROW DOG, 109 U.S.
556, 569; CHEROKEE NATION V. GEORGIA, 5 PET. 1, 17.  SEE ALSO UNITED
STATES V. CANDELARIA, 271 U.S. 432, 442, WHERE THIS COURT POINTED OUT
THAT THE SAME CONCEPT HAD APPLIED UNDER SPANISH AND MEXICAN LAW.  AND
SEE ALSO UNITED STATES V. KAGAMA, 118 U.S. 375, 384 ("DUTY OF
PROTECTION"), AND CHIEF JUSTICE MARSHALL'S LEADING OPINION IN JOHNSON
V. M'INTOSH, 8 WHEAT.  543, 591 ("INDIANS ARE TO BE PROTECTED  ...  IN
THE POSSESSION OF THEIR LANDS"). 

FN11  IN UNITED STATES V. CANDELARIA, 271 U.S. 432, FOR EXAMPLE, THIS
COURT HELD THAT THE UNITED STATES COULD SET ASIDE A DEED FROM THE
PUEBLOS OF LANDS TO WHICH THE INDIANS HAD FEE SIMPLE TITLE, EVEN THOUGH
THE ISSUE IN THE CASE HAD BEEN SETTLED BY OTHERWISE APPLICABLE
PRINCIPLES OF RES JUDICATA IN PRIOR LITIGATION TO WHICH THE INDIANS,
BUT NOT THE UNITED STATES, HAD BEEN A PARTY.  SEE NOTE 9, SUPRA. 

FN12  FOR GENERAL DISCUSSIONS OF THE TUSCARORAS' HISTORY SEE HODGE
(EDITOR), HANDBOOK OF AMERICAN INDIANS (1910), PT. 2, 842-853,
SMITHSONIAN INSTITUTION BUREAU OF AMERICAN ETHNOLOGY, BULLETIN 30, H.R.
DOC. NO. 926, PART 2, 59TH CONG., 1ST SESS.; COHEN, HANDBOOK OF FEDERAL
INDIAN LAW (1941), 423; MORGAN, LEAGUE OF THE IROQUOIS (1904), I, 23,
42, 93, II, 77, 187, 305; CUSICK, ANCIENT HISTORY OF THE SIX NATIONS
(1848), 31-35; H.R. DOC. NO. 1590, 63D CONG., 3D SESS. 7, 11-15 (1915);
H.R. EXEC. DOC. NO. 1, PT. 5, VOL. I, 45TH CONG., 2D SESS. 562-563
(1877).  AND SEE STATEMENTS IN NEW YORK INDIANS V. UNITED STATES, 30
CT. CL. 413 (1895); TUSCARORA NATION OF INDIANS V. POWER AUTHORITY OF
NEW YORK, 164 F. SUPP. 107 (D.C.W.D.N.Y.  1958); PEOPLE EX REL. CUSICK
V. DALY, 212 N.Y. 183, 190, 105 N.E. 1048, 1050 (1914). 

FN13  SEE HANDBOOK OF AMERICAN INDIANS, OP. CIT., SUPRA, NOTE 12, AT
848; WILSON, APOLOGIES TO THE IROQUOIS (1960), 135. 

FN14  LETTER FROM THEOPHILE CAZENOVE TO JOSEPH ELLICOTT, MAY 10,
1798, 1 BINGHAM (EDITOR), HOLLAND LAND COMPANY'S PAPERS:  REPORTS OF
JOSEPH ELLICOTT (BUFFALO HIST. SOC. PUB. VOL. 32, 1937) 21, 23. 

FN15  IN ADDITION TO THE GENERAL HISTORIES CITED, NOTE 12, SUPRA,
THIS PARTICULAR TRANSACTION IS DESCRIBED IN VARIOUS LETTERS AND
SPEECHES OF THE TUSCARORAS AND THE SECRETARY OF WAR.  SEE LETTERS SENT
BY THE SECRETARY OF WAR RELATING TO INDIAN AFFAIRS (NATIONAL ARCHIVES,
RECORD GROUP 75, INTERIOR BRANCH), VOL. A, 18-19, 22-23, 113-114, 117
119, 147-148, 402, 425-426, 438-439, VOL. B, 29, 274, 421; 6 BUFFALO
HIST. SOC. PUB. 221; AND LETTER FROM ERASTUS GRANGER TO SECRETARY OF
WAR HENRY DEARBORN, JULY 20, 1804, IN BUFFALO HIST. SOC. MANUSCRIPT
FILES.  THE DEEDS ARE RECORDED IN THE NIAGARA COUNTY CLERK'S OFFICE,
LOCKPORT, NEW YORK, NOV. 21, 1804, LIBER B, PP. 2-7; JAN. 2, 1809,
LIBER A, P. 5.  "IN 1804 CONGRESS AUTHORIZED THE SECRETARY OF WAR TO
PURCHASE ADDITIONAL LAND FOR THESE INDIANS."  FROM A DEPARTMENT OF
INTERIOR LETTER, H.R. DOC. NO. 1590, 63D CONG., 3D SESS. 7.  AND SEE
THE COURT'S NOTE 10, AND FELLOWS V. BLACKSMITH, 19 HOW.  366. 

FN16  TREATY OF JANUARY 15, 1838, 7 STAT. 550, 554 (ARTICLE 14,
"SPECIAL PROVISIONS FOR THE TUSCARORAS"). 

THE INTEREST OF THE GOVERNMENT IN INDIAN LANDS WAS A PART OF THE LAW
OF SPAIN, MEXICO, GREAT BRITAIN AND OTHER EUROPEAN POWERS DURING PRE
COLONIAL DAYS.  UNITED STATES V. CANDELARIA, 271 U.S. 432, 442; UNITED
STATES V. KAGAMA, 118 U.S. 375, 381; WORCESTER V. GEORGIA, 6 PET. 515,
551-552; CHEROKEE NATION V. GEORGIA, 5 PET. 1, 17-18.  THE ORIGINAL
ARTICLES OF CONFEDERATION PROVIDED FOR CONGRESSIONAL CONTROL OF INDIAN
AFFAIRS IN ARTICLE 9.  A SIMILAR PROVISION IS IN THE COMMERCE CLAUSE OF
THE PRESENT CONSTITUTION.  ONE OF THE FIRST ACTS OF THE NEW CONGRESS
WAS THE SO-CALLED NON-INTERCOURSE ACT OF JULY 22, 1790, 1 STAT. 137,
WHICH PROVIDED, IN SEC. 4, "THAT NO SALE OF LANDS MADE BY ANY INDIANS
...  SHALL BE VALID  ...  UNLESS THE SAME SHALL BE MADE AND DULY
EXECUTED AT SOME PUBLIC TREATY, HELD UNDER THE AUTHORITY OF THE UNITED
STATES."  THE SIMILAR PROVISION IS PRESENTLY FOUND IN 25 U.S.C. SEC.
177, AS MODIFIED BY REV. STAT. SEC. 2079, 25 U.S.C. SEC. 71. 

FN17  TREATY OF NOVEMBER 11, 1794, 7 STAT. 44.  ARTICLE VI OF THAT
TREATY PROVIDES:    "BECAUSE THE UNITED STATES DESIRE, WITH HUMANITY
AND KINDNESS, TO CONTRIBUTE TO THEIR COMFORTABLE SUPPORT  ...  THE
UNITED STATES WILL ADD THE SUM OF THREE THOUSAND DOLLARS TO THE ONE
THOUSAND FIVE HUNDRED DOLLARS, HERETOFORE ALLOWED THEM BY AN ARTICLE
RATIFIED BY THE PRESIDENT APRIL 23, 1792; MAKING IN THE WHOLE, FOUR
THOUSAND FIVE HUNDRED DOLLARS; WHICH SHALL BE EXPENDED YEARLY FOREVER,
IN PURCHASING CLOATHING, ETC.  ...  ." 

EVERY CONGRESS UNTIL THE 81ST INDICATED THAT THEIR $4,500 ANNUAL
APPROPRIATION RESTED UPON "ARTICLE 6, TREATY OF NOVEMBER 11, 1794." 
E.G., 62 STAT. 1120, 80TH CONG., 2D SESS.  SUBSEQUENT CONGRESSES SIMPLY
APPROPRIATED A TOTAL AMOUNT FOR INDIAN TREATY OBLIGATIONS INCLUDING
"TREATIES WITH SENECAS AND SIX NATIONS OF NEW YORK  ...  ."  E.G., 63
STAT. 774, 81ST CONG., 1ST SESS.  IN 1951 THE 82D  CONG., 1ST SESS.,
APPROPRIATED SIMPLY "SUCH AMOUNTS AS MAY BE NECESSARY AFTER JUNE 30,
1951" FOR THIS PURPOSE.  65 STAT. 254.  AT THE HEARINGS IT WAS
EXPLAINED THAT THIS PROVISION "WOULD HAVE THE EFFECT OF BEING PERMANENT
LAW INSOFAR AS MAKING THE FUNDS AVAILABLE WITHOUT HAVING TO BE INCLUDED
IN EACH ANNUAL APPROPRIATION ACT  ...  .  IT IS A TREATY OBLIGATION AND
HAS ALWAYS BEEN PAID BY THE GOVERNMENT IN FULL  ...  .  THESE TREATIES
HAVE BEEN IN EXISTENCE FOR MANY, MANY YEARS."   DIRECTOR D. OTIS
BEASLEY, DIVISION OF BUDGET AND FINANCE, DEPARTMENT OF THE INTERIOR,
HEARINGS ON INTERIOR DEPARTMENT APPROPRIATIONS FOR 1952 BEFORE THE
SUBCOMMITTEE ON INTERIOR DEPARTMENT OF THE HOUSE COMMITTEE ON
APPROPRIATIONS, 82D CONG., 1ST SESS., PT. 2, 1747, 1764. 

FN18  "KANATSOYH, ALIAS NICHOLAS KUSIK," SIGNED THE 1794 TREATY AS A
TUSCARORA, BUT IS NOT SO IDENTIFIED THERE.  HOWEVER, HE ALSO SIGNED THE
TREATIES OF DECEMBER 2, 1794, 7 STAT. 47, AND JANUARY 15, 1838, 7 STAT.
550, FOR THE TUSCARORA NATION AND IS LISTED THERE AS A "TUSCARORA."  IT
HAS NEVER EVEN BEEN HINTED, UNTIL THE COURT'S NOTE 18 TODAY, THAT THE
TUSCARORA NATION IS FOR SOME REASON NOT INCLUDED IN THIS NOVEMBER 11,
1794, SIX NATIONS' TREATY. 

FN19  THE KANSAS INDIANS, 5 WALL.  737, 760 ("ENLARGED RULES OF
CONSTRUCTION ARE ADOPTED IN REFERENCE TO INDIAN TREATIES"); WORCESTER
V. GEORGIA, 6 PET. 515, 582 ("THE LANGUAGE USED IN TREATIES WITH THE
INDIANS SHOULD NEVER BE CONSTRUED TO THEIR PREJUDICE  ...  .  HOW THE
WORDS OF THE TREATY WERE UNDERSTOOD BY THIS UNLETTERED PEOPLE, RATHER
THAN THEIR CRITICAL MEANING, SHOULD FORM THE RULE OF
CONSTRUCTION")(CONCURRING OPINION); TULEE V. WASHINGTON, 315 U.S. 681,
683-685 ("IN A SPIRIT WHICH GENEROUSLY RECOGNIZES THE FULL OBLIGATION
OF THIS NATION TO PROTECT THE INTERESTS OF A DEPENDENT PEOPLE").  AND
SEE SPALDING V. CHANDLER, 160 U.S. 394, 405; ELK V. WILKINS, 112 U.S.
94, 100; EX PARTE CROW DOG, 109 U.S. 556, 572; UNITED STATES V. ROGERS,
4 HOW.  567, 572. 

FN20  THE ORIGINS OF THIS POLICY EXTEND INTO PRE-COLONIAL BRITISH
HISTORY.  AS CHIEF JUSTICE MARSHALL SAID IN WORCESTER V. GEORGIA, 6
PET. 515, 547, IN SPEAKING OF THE INDIAN LAND POLICY: 

"THE KING PURCHASED THEIR LANDS WHEN THEY WERE WILLING TO SELL, AT A
PRICE THEY WERE WILLING TO TAKE; BUT NEVER COERCED A SURRENDER OF
THEM." 

CHIEF JUSTICE MARSHALL QUOTED AT THE SAME PLACE SIMILAR LANGUAGE FROM
A SPEECH MADE TO THE AMERICAN INDIANS BY THE BRITISH SUPERINTENDENT OF
INDIAN AFFAIRS IN 1763.  THIS PRINCIPLE HAS BEEN CONSISTENTLY
RECOGNIZED BY THIS GOVERNMENT AND THIS COURT.  SPALDING V. CHANDLER,
160 U.S. 394, 403; UNITED STATES V. FORTY-THREE GALLONS OF WHISKEY, 93
U.S. 188, 197; THE NEW YORK INDIANS, 5 WALL.  761, 768; CHEROKEE NATION
V. GEORGIA, 5 PET. 1, 17; JOHNSON V. M'INTOSH, 8 WHEAT.  543.  AND SEE
48 STAT. 987, 25 U.S.C. SEC. 476; 25 U.S.C. SECS. 311-328 AND 25 CFR
SEC. 161.3(A). 

THE AGE AND SCOPE OF THIS DOCTRINE OF GUARDIANSHIP AND FAIRNESS TO
THE INDIANS IS WELL ILLUSTRATED IN A STATEMENT MADE BY PRESIDENT
WASHINGTON, DECEMBER 29, 1790, RESPONDING TO AN ADDRESS BY THE CHIEFS
AND COUNCILORS OF THE SENECA NATION: 

"I AM NOT UNINFORMED, THAT THE SIX NATIONS HAVE BEEN LED INTO SOME
DIFFICULTIES, WITH RESPECT TO THE SALE OF THEIR LANDS, SINCE THE
PEACE.  BUT I MUST INFORM YOU THAT THESE EVILS AROSE BEFORE THE PRESENT
GOVERNMENT OF THE UNITED STATES WAS ESTABLISHED, WHEN THE SEPARATE
STATES, AND INDIVIDUALS UNDER THEIR AUTHORITY, UNDERTOOK TO TREAT WITH
THE INDIAN TRIBES RESPECTING THE SALE OF THEIR LANDS.   BUT THE CASE IS
NOW ENTIRELY ALTERED; THE GENERAL GOVERNMENT, ONLY, HAS THE POWER TO
TREAT WITH THE INDIAN NATIONS, AND ANY TREATY FORMED, AND HELD WITHOUT
ITS AUTHORITY, WILL NOT BE BINDING. 

"HERE, THEN, IS THE SECURITY FOR THE REMAINDER OF YOUR LANDS.  NO
STATE, NOR PERSON, CAN PURCHASE YOUR LANDS, UNLESS AT SOME PUBLIC
TREATY, HELD UNDER THE AUTHORITY OF THE UNITED STATES.  THE GENERAL
GOVERNMENT WILL NEVER CONSENT TO YOUR BEING DEFRAUDED, BUT IT WILL
PROTECT YOU IN ALL YOUR JUST RIGHTS."  4 AMERICAN STATE PAPERS (INDIAN
AFFAIRS, VOL. I, 1832) 142; 31 WASHINGTON, WRITINGS (UNITED STATES
GEORGE WASHINGTON BICENTENNIAL COMM'N ED. 1939) 179, 180. 

FN21  SEVENTH ANNUAL MESSAGE, DEC. 7, 1835, 3 RICHARDSON, MESSAGES
AND PAPERS OF THE PRESIDENTS 1789-1897, 147, 172. 

FN22  CONG. GLOBE, 33D CONG., 1ST SESS., APP. 202.  SEE 1 MORISON AND
COMMAGER, THE GROWTH OF THE AMERICAN REPUBLIC (1950), 621. 

FN23  SEE, E.G., UNITED STATES V. HELLARD, 322 U.S. 363, 367 ("THE
POWER OF CONGRESS OVER INDIAN AFFAIRS IS PLENARY"); UNITED STATES V.
SANDOVAL, 231 U.S. 28, 45-46; TIGER V. WESTERN INVESTMENT CO., 221 U.S.
286, 315 ("IT IS FOR THAT BODY (CONGRESS), AND NOT THE COURTS"); LONE
WOLF V. HITCHCOCK, 187 U.S. 553, 565 ("PLENARY AUTHORITY OVER THE
TRIBAL RELATIONS OF THE INDIANS HAS BEEN EXERCISED BY CONGRESS FROM THE
BEGINNING  ...  NOT  ...  THE JUDICIAL DEPARTMENT OF THE GOVERNMENT");
UNITED STATES V. ROGERS, 4 HOW.  567, 572. 

FN24  "AS WE UNDERSTAND THE POSITION OF THE TRIBE, THEY DO NOT
COMPLAIN SO MUCH OF A POSSIBLE LEASE OR LICENSE FOR THE USE OF THE
LANDS AS THEY COMPLAIN OF A POSSIBLE PERMANENT LOSS OF PART OF THEIR
HOMELANDS."  LETTER FROM UNDER SECRETARY OF THE INTERIOR BENNETT TO
FEDERAL POWER COMMISSION CHAIRMAN KUYKENDALL, DECEMBER 19, 1958,
RELATING TO THE TAKING OF THESE TUSCARORA LANDS FOR THE NIAGARA POWER
PROJECT.