Seneca Nation of Indians v. New York

DECISION AND ORDER

ARCARA, District Judge.

Table of Contents

I. INTRODUCTION.453

II. PROCEDURAL BACKGROUND.454

III. CLAIMS OF THE PARTIES.455

IY. STATEMENT OF FACTS.455

A.

Historical Sources

.455

B.

The Niagara River

Region.456

1.

The Niagara River

.456

2.

The Channels and the

Islands.456

3.

The River

Boundary.457

C.

The Aboriginal Inhabitants of the Niagara

Region.457

1.

The

Neutrals.457

2.

The Wenros and the

Eries.457

3.

The

Senecas.'.458

4.

Defeat of Wenros, Neutrals and Eries by the

Senecas.458

D.

French Control of the Niagara

Region.459

1.

French Plans to Control the Niagara

Region.459

2.

The Fur

Trade.460

3.

From La Salle to

Denonville.460

4.

Denonville’s Expedition Against the

Senecas.460

*452

5.

The First Fort at

Niagara.

6.

King William’s War (1689-1701)

.

7.

The French Return to Niagara

(1701-1710).

8.

Joncaire and Queen Anne’s War

(1702-1713).

9.

French Use and Occwpancy of the Niagara Region Extended..

10.

The French Fortify

Niagara.

11.

Bntish Reaction to Fort

Niagara.

12.

King George’s War

(17k5-17k8).

13.

Fort Little

Niagara.

14.

The Ohio Expedition and the French and Indian

War.

British Rule of the Niagara Region

.

1.

British Indian Policy and the Royal Proclamation

of1763.

2.

Pontiac’s Rebellion and the 1761 Treaties of

Peace.

3.

Daniel Joncaire-Chabert’s Claim to the Niagara

Islands.

4.

The 1768 Treaty of Fort Stanwix

.

The Niagara Region during the Revolutionary

War.

tA

The United States’ Early Mechanisms for Dealing with the Indians .

rd

The Articles of

Confederation. trj

Recognition of New York’s Boundaries

.

The 1783 Treaty of Paris Ending the Revolutionary

War.

The 178k Treaty of Fort

Stanwix.

1.

Proposal for Treaty between the United States and the Iroquois

2.

New York’s Attempt to Treat with the

Iroquois.

3. he Confederal Treaty of Fort Stanwix.

Seneca Discontent with the 1781 Treaty of Fort

Stanwix.

The 1786 Hartford

Compact.

The 1789 Treaty of Fort

Hamer.

The Constitution and the Nonintercourse

Act.

Geographical Error in the 178k. Treaty of Fort

Stanwix.

Continued Seneca

Dissatisfaction.

The 179k Treaty of

Canandaigua.

New York Advised that Federal Approval Required for Purchase of Indian

Land.

New York’s 1802 Purchase of One-Mile-Wide Strip r

rfx

New York’s 1815 “Purchase” of the Niagara Islands

* — \ Ü1

ICC

Proceedings. kJ ^ CO

Y. DISCUSSION. cn o M

A.

Summary Judgment Standard

. cn o M

B.

Elements of Plaintiffs’ Nonintercourse Act Claim

üi o to

C.

Law of Indian Land

Tenure. oí o to

D.

Canons of Indian Treaty

Construction. oí o Oi

E.

The 176k Treaties of

Peace. ca o 00

1.

The 176k Treaties Extinguished Seneca Title to the Niagara Islands

ai o 00

2.

The 176k Treaties Did Not Simply Recognize Great Britain’s Right of

Preemption.

cn J

— L o

3.

The 176k Treaties Did Not Violate the 1763 Royal Proclamation....

cn 1 — 4

4.

The Land Grants in the 176k Treaties Were Not Revoked by the 1768 Treaty of Fort

Stanwix.

5.

Great Bntain’s Title to the Niagara Islands Passed to New York upon the Revolution

. or t —

1

Ol

6.

The Court’s Conclusions are Consistent with Thos e of the

ICC. oi I —

4

Ol

F.

The 178k Treaty of Fort

Stanwix. cu H-4

<5i

1.

The 178k Treaty of Fort Stanwix Extinguished Seneca Title to the Niagara Strip and the Niagara

Islands.-.

2. As

a Result of the 178k Treaty, New York, Not th e United States, Obtained Fee Simple Absolute Title to the Niagara Strip and the Niagara Islands

*453

a.

The 1784 Treaty Did Not Pass the Senecas Right of Possession to the United

States.

b.

The 1784 Treaty Must Be Construed Consistently with the Articles of

Confederation.

c.

The Continental Congress Did Not Intend to Infringe or Violate Neio York’s Preemption Rights or Preexisting Title by Entering into the 1784

Treaty. 07 CO I — l

3.

Removal of the Senecas Was Not Required in Order to Effect an Extinguishment of Aboriginal Title under the 1784 Treaty of Fort

Stanwix.. 07 DO ^

4.

The Constitution’s Supremacy Clause Does Not Affect the Proper Construction of the 1784 Treaty of Fort

Stanwix... Of tO

G.

The 1794 Treaty of

Canandaigua. Of to 00

1.

The 1794 Treaty of Canandaigua Cannot be Interpreted to Have Included the Niagara

Islands. C* <M lO

2.

New York Retained Its Title Because It Was Never Paid Just

Compensation. CO CO LO

H.

Neiv York’s 1815 “Purchase” of the Niagara

Islands. o co IQ

I.

The Interests of Justice Support the Court’s

Conclusion. o IQ

VI. SUMMARY AND CONCLUSION. HO

MAP APPENDICES

I.

INTRODUCTION

This action involves an Indian land claim under the Trade and Intercourse Act, 25 U.S.C. § 177 (the “Nonintercourse Act” or “Act”). Plaintiff Seneca Nation of Indians (the “SNI”), and plaintiff-intervenors To-nawanda Band of Seneca Indians (the “To-nawanda Band”) and the United States of America,

1

claim that an 1815 conveyance in which the State of New York purportedly purchased Grand Island and other islands in the Niagara River (hereinafter referred to collectively as the “Niagara Islands” or the “Islands”) from the historic Seneca Nation of Indians

2

(hereinafter referred to as the “Seneca Nation” or the “Senecas”) was invalid, because there was no United States treaty commissioner present at the negotiations and the agreement was never ratified by the United States Congress as required by the Act.

Currently before the Court are the parties’ cross-motions for summary judgment on the issue of liability under the Nonin-tercourse Act. For the reasons stated herein, the Court finds that the purported conveyance of the Niagara Islands to New York in 1815 did not constitute a violation of the Act because at the time of the conveyance, the Islands were not Seneca Nation tribal land protected by the Act. Pursuant to various pre-1815 treaties, any title to the Islands that the Seneca Nation may have once held was extinguished, resulting in New York obtaining full fee title to the Islands prior to the purported conveyance in 1815. Thus, plaintiffs cannot succeed on their Nonintercourse Act claim as a matter of law.

Accordingly, the Court: (1) denies plaintiffs’ motions for summary' judgment; (2) grants defendants’ motion for summary

*454

judgment; and (3) dismisses the case in its entirety.

II.

PROCEDURAL BACKGROUND

The SNI filed this suit in 1993. The Tonawanda Band intervened as a plaintiff. Both the SNI and the Tonawanda Band are Indian nations whose tribal status is recognized by the federal government and which have a trust relationship with the United States. The SNI and Tonawanda Band are both recognized by the United States as successors-in-interest to the historic Seneca Nation.

The Plaintiff Tribes allege that New York’s acquisition of the Niagara Islands by purchase in 1815 violated the Noninter-course Act and therefore is void. The Plaintiff Tribes seek to establish their continuing interest in the Islands.

The defendants in this case include the State of New York, the New York State Thruway Authority,

3

various State officials, Erie County

4

and all other landowners on the Niagara Islands.

5

Defendants asserted various counterclaims and affirmative defenses, including laches, statute of limitations, political question, nonjusticability, abatement, adverse possession, “surrounded by settlements,” accord and satisfaction, estoppel, waiver and unclean hands.

The Plaintiff Tribes moved for certification of a defendant class and their motion was granted in May 1994. The Plaintiff Tribes also moved to dismiss defendants’ counterclaims and affirmative defenses and that motion was also granted. The New York State Thruway Authority eventually moved to dismiss the complaint based on the Eleventh Amendment.

In September 1996, the Court stayed proceedings in this case pending the Supreme Court’s decision in the case of

Idaho v. Coeur d’Alene Tribe of Idaho,

521 U.S. 261 , 117 S.Ct. 2028 , 138 L.Ed.2d 438 (1997). In

Coeur d’Alene,

the Supreme Court held that the Eleventh Amendment bars an Indian tribe from bringing a quiet title action against a state or state officials in federal court.

In March 1998, the United States moved to intervene as a plaintiff in this case and the Court granted the motion. Defendants moved to dismiss the United States’ complaint-in-intervention on the ground that the statute of limitations in 28 U.S.C. § 2415 precluded the action. The State of New York and the New York Thruway Authority (the “State defendants”) also moved on Eleventh Amendment grounds to dismiss the Plaintiff Tribe’s claims. The Court denied both motions. The State defendants filed an interlocutory appeal of the Court’s order denying dismissal on Eleventh Amendment grounds. The Second Circuit Court of Appeals affirmed.

See Seneca Nation of Indians v. New York,

178 F.3d 95 (2d Cir.1999). The State defendants filed a petition for

certio-rari,

which the Supreme Court denied in January 2000.

See New York v. Seneca Nation of Indians,

528 U.S. 1073 , 120 S.Ct. 785 , 145 L.Ed.2d 662 (2000).

While the case was on appeal and immediately thereafter, the parties entered into lengthy settlement discussions. The settlement discussions ultimately proved unsuccessful and the parties cross-moved for

*455

summary judgment on the issue of liability. Following extensive briefing and oral argument, the matter was submitted for decision in March 2001.

III.

CLAIMS OF THE PARTIES

Plaintiffs contend that a conveyance of the Niagara Islands by the Seneca Nation to the State of New York in 1815, violated the Nonintercourse Act. They claim that in 1815, the Seneca Nation had both aboriginal title to the Niagara Islands and recognized title granted to it by the United States pursuant to the 1794 Treaty of Can-andaigua. Thus, plaintiffs argue, in 1815, the Niagara Islands were tribal land for purposes of the Act, and as such, federal approval was required before they could be sold. Plaintiffs claim that, because such federal approval was lacking, the 1815 conveyance is void under the Act and the Plaintiff Tribes therefore retain title to the Islands.

For purposes of the summary judgment motion, defendants do not dispute that there was no federal approval of the 1815 conveyance. Instead, defendants contend that no such approval was required because in 1815, the Islands were not tribal land subject to the requirements of the Nonintercourse Act. Defendants argue that as the result of various treaties, discussed below, the Senecas held neither aboriginal nor recognized title to the Niagara Islands in 1815, and that New York already held full fee title thereto.

Thus, the question before the Court is whether in 1815, the Seneca Nation actually held either aboriginal or recognized title to the Niagara Islands, or whether, instead, the State of New York already held full fee title to the Islands as a result of prior extinguishment of Seneca title.

IY.

STATEMENT OF FACTS

A.

Historical Sources

In order to understand fully the parties’ respective claims in this case and the context in which these claims arise, it is necessary to examine in some detail the historical background of the Niagara River region, the relationship of the aboriginal inhabitants to the region, and the development of Indian policy, first by France and Great Britain and then by the United States.

Because of the important role of the Niagara River in travel by water between the lower and upper Great Lakes, and the role of the Niagara peninsula, located west of the River in present day Ontario, Canada, in travel by land between New York and Upper Canada, the Niagara region was traveled by European explorers, traders and missionaries well before most of the rest of the western New York area. Accordingly, the history of the Niagara region is a long and well-documented one.

For the most part, the relevant historical facts in this case are over 200 years old and are not in dispute. In that regard the parties have entered into a Joint Stipulation of Undisputed Facts (“Joint Stip.”).

Additionally, much of the region’s history is documented in a report prepared in the 1960’s for the United States Department of Justice by Donald H. Kent (“Kent Rep.”).

See

Defendants’ Exhibit (“Defs.Ex.”) 12. The United States engaged Kent to prepare this history of the Niagara region-and in particular the Senecas’ relationship to the region-for use in proceedings before the Indian Claims Commission (“ICC”).

6

Much of the following history of the area is taken from Kent’s report.

*456

The Court also relies extensively on the United States’ Request for Findings of Fact in both the ICC case involving the Niagara Islands (“ICC Br.”),

see

Defs. Ex. 25, and the ICC case involving the so-called Phelps-Gorham Purchase (“PG Br.”).

See

Defs. Ex. 23. These documents relied extensively on the Kent Report, as well as other primary sources, the authenticity of which is undisputed.

7

B.

The Niagara River Region

1.

The Niagara River

The Niagara River is actually a strait that connects Lakes Erie and Ontario. The River is comprised of waters flowing out of Lake Erie at present-day Buffalo, New York, running in a northerly direction for about 34 miles, and ending there with its waters flowing into Lake Ontario.

See

Appendix A.

8

From the outlet of Lake Erie, the River is navigable for about 20 miles to the upper rapids about one-half mile above Niagara Falls. After it plunges over Niagara Falls into a deep gorge, the River flows turbulently for about 7 miles though rocky cliffs to present-day Lewiston, New York, where it flows as a quiet river for about 7 miles to Lake Ontario. The River descends about 10 feet from Lake Erie to the upper rapids, 50 feet from the head of the rapids to the Falls, 167 feet over the Falls, 98 feet in the lower rapids, and less than a foot in the final stretch from Lewiston to Lake Ontario-a total descent of about 326 feet. The River is comprised of fresh water and is unaffected by tides.

Despite the impediment of the Falls and rapids, the Niagara River and the land adjacent thereto have been an important avenue of communication since and prior to the earliest European contact with the Great Lakes region. At Lewiston, on the east side of the River, a trail or “portage” extended to the south over the Niagara Escarpment

9

to a point about one-half mile above the Falls at the beginning of the rapids, in the present-day City of Niagara Falls.

See

Appendices B and C. This portage was used by Indians and early Europeans traveling the Great Lakes as an overland route to bypass the Falls and rapids.

2.

The Channels and the Islands

About 5 miles north of Lake Erie the Niagara River divides into two channels, forming between them Grand Island.

See

Appendices A, B and C. This is the largest island in the Niagara River and encompasses approximately 19,000 acres of land. After passing Grand Island, the two channels again unite and resume the River’s flow toward the Falls about 3 miles north.

*457

Just prior to going over the Falls, the waters are again divided by a small island known as Goat Island. As a result, the Falls are divided into two separate falling waters, one west of Goat Island (the Canadian or “Horseshoe” Falls) and the other northeasterly of that Island (the American Falls). About 94% of the water flows over the Canadian Falls.

Besides Goat Island and Grand Island, there are about forty other islands situated between the Falls and Lake Erie. Some of these are larger than Goat Island, some are smaller. All of these together, however, contain but a small fraction of the acreage contained in Grand Island. Today, approximately 18,000 people inhabit the Niagara Islands.

3.

The River Boundary

Besides its various utilitarian purposes and great beauty, the Niagara River serves as part of the boundary line between the United States and Canada. This came about by virtue of the Treaty of Paris between the United States and Great Britain on September 3, 1783, ending the Revolutionary War. The boundary between the United States and British Canada established in that Treaty, however, was very long and much of it was not described in detail. This was true of the part of the boundary formed by the Niagara River and early writers usually believed that the international boundary cut through the center of Grand Island with half of that island belonging to the United States and half to Great Britain. ICC Br. at 6. However, in 1822, it was finally determined that the westerly channel was the main channel of the River and that the center of that channel was the actual boundary line between the two countries. This confirmed that all of Grand Island was part of the State of New York.

C.

The Aboriginal Inhabitants of the Niagara Region

1.

The Neutrals

At the time of the first European contact with the area, the land portion of the Niagara region was occupied, at least in part, by the Neutral Nation of Indians, an Iroquoian-speaking group.

10

During the first half of the seventeenth century, the Neutrals’ territory encompassed the area immediately west of Lake Ontario and .both sides of the Niagara River.

See

Appendix D. During that time, the Neutrals were one of the largest Indian groups in the Niagara region. Kent Rep. at 5. By 1641, the French were trading directly with the Neutrals.

Archaeological evidence confirms that the Neutral Indians once lived on Grand Island. Archaeologists have discovered a Neutral cemetery on Grand Island dating from 1635 to 1645. It contained at least 60 burial sites. Thus, it is likely there was a semi-permanent Neutral settlement on Grand Island or nearby. Several other archaeological sites on the east side of the River have also been identified as Neutral. In contrast, there is no archaeological evidence that the Senecas were ever actually present on Grand Island.

2.

The Wenros and the Eries

To the east of the Neutral Nation, along the south shore of Lake Ontario, somewhere between the Niagara and Genesee Rivers,

11

lived the Wenros.

See

Appendix D. They are sometimes regarded as a subgroup or component of the Neutral Nation,

*458

but more properly seem to have been a separate group allied or associated with the Neutrals.

To the south of the Neutrals and southwest of the Wenros were the Eries. The Eries occupied land south of the present-day City of Buffalo along the southeast shore of Lake Erie.

Id.

3.

The Senecas

In aboriginal times, the Senecas comprised the westernmost tribe of the Iroquois Confederacy, but were still located a considerable distance to the east of the Niagara River.

12

See

Appendices D and E. The Iroquois initially consisted of five nations: the Senecas, the Cayugas, the Onondagas, the Oneidas and the Mohawks. In the first part of the eighteenth century, the Iroquois were joined by the Tusearo-ras and were then often referred to as the Six Nations of the Iroquois or simply the Six Nations.

At the time of first European contact, the villages of the Senecas were all east of the Genesee River, extending eastward from the Genesee Valley to Cayuga territory at the watershed between Seneca Lake and Cayuga Lake. The Senecas, like the rest of the Iroquois, did not lead a nomadic existence. They maintained substantial permanent settlements, raised agricultural crops in the vicinity of their villages, and hunted widely for meat and pelts throughout an extensive area extending on both sides of Lakes Erie and Ontario. In addition to hunting, the Senecas fished extensively in Lakes Erie and Ontario, and for such purposes maintained temporary villages at generally permanent locations adjacent to the Lakes and the Niagara River. Other Indians, however, both Iroquois and non-Iroquois, also used the Niagara River and adjacent land as an avenue of communication and transportation.

4.

Defeat of Wenros, Neutrals and Eries by the Senecas

At some point prior to 1638, the Neutrals terminated their relationship with the Wenros, leaving the Wenros vulnerable to enemy attack. In 1638, the Senecas defeated the Wenros and drove them from their territory. The Wenros eventually took refuge among the Huron Indians, who were located in present-day southern Ontario, Canada.

A similar fate befell the Neutral Nation. The Neutral Nation was named by the French because they kept themselves “equally in peace with both” the Hurons and the Iroquois, even though the Neutral country was “the ordinary land route” between these two hostile groups. ICC Br. at 12. Though strong themselves, the Neutrals never attacked either the Hurons or the Iroquois, who were constantly at war with each other. As the warfare between the Hurons and Iroquois intensified in the 1640’s, however, the Neutrals found it increasingly difficult to avoid involvement. . By 1649, the Neutrals found themselves in open warfare against the Senecas. The war raged evenly for several years, until the Senecas were able to obtain the assistance of the Mohawks. In 1651, with the aid of the Mohawks, the Senecas defeated the Neutral Nation. The remnants of the Neutrals scattered to the north and south, while those captured by the Iroquois were either killed or incorporated by adoption into various nations. Similarly, between 1654 and 1680, the

*459

Senecas defeated the Eries and drove them from the Niagara region.

After the withdrawal of the Wenros and the defeat of the Neutrals and the Eries in the 1650’s, the territory between the Gene-see River and the Niagara River remained an unoccupied wilderness. Kent Rep. at 15-19. According to historians, the Senecas may have had some small villages as bases for hunting and fishing, but there was no permanent occupancy of the country west of the Genesee River for almost a century.

Id.

Historians have theorized that the reason for this might have been that the area was too vulnerable to attack from enemies of the Senecas.

Id.

During that time, the Senecas were under constant attack by tribes from the west and the south. According to Kent:

[The] expulsion or destruction of the original inhabitants [of the Niagara region], which was later to be termed a “conquest” when the British were seeking a basis for claiming the lands around the Great Lakes, was not followed by any appreciable resettlement or use of the Niagara land by the Senecas, and it does not appear that they made any effort to keep others away. On the contrary, the Niagara remained a relatively deserted locality for many years, open to all comers, Indian or white.

Id.

at 164 (footnotes omitted). Thus, until the time of the Revolutionary War, it appears that the main body of the Senecas lived between the Genesee River and Seneca Lake.

Id.;

see

also

Appendices D and E.

D.

French Control of the Niagara Region

1.

French Plans to Control the Niagara Region

The French presence in the Niagara region began in the seventeenth century. Recognizing the strategic importance of the Niagara region, the government of French Canada, or New France, began to consider fortifying and controlling the Niagara portage. In 1673, Count Frontenac, Governor of French Canada, proposed that a fort be built at the mouth of the Niagara River, and that a vessel be built on Lake Erie in order to extend French control of the Great Lakes.

These plans for the expansion of New France began to take shape in the fall of 1678 when the explorer René Robert Cavalier, Sieur de La Salle sent an advance party to establish a post and prepare for building a ship above Niagara Falls to sail the upper Lakes. With his advance party was Father Louis Hennepin, a Franciscan missionary, whose memoirs,

A New Discovery of a Vast Country in America,

indicate that there were but a few Senecas in the Niagara area at that time, who seemed to be there only on temporary fishing, trading or hunting expeditions.

In 1678, La Salle traveled to the present site of Lewiston, New York, where his party built a palisaded storehouse, the first European structure in the Niagara region. That same year, La Salle discovered a Seneca fishing village at the mouth of the Niagara River. The nearest permanent Seneca village, however, was five days’ journey to the east.

In 1679, La Salle established a shipyard at the mouth of Cayuga Creek on the Niagara River above Niagara Falls and began building a ship.

See

Appendices B and C. La Salle employed two Indians from a western Indian tribe to hunt for his party. They were able to operate without any interference from the Senecas.- During the construction of the ship, La Salle had to leave the Niagara area in order to get supplies and try to satisfy his creditors. Before leaving on February 1, 1679, he gave orders for the building of a fort at

*460

the mouth of the River, to be called Fort Conty or Conti.

See

Appendix C. A small fortification was built, but was accidently destroyed by fire so that only a storehouse was left.

At this time, the Iroquois were coming to the Niagara region from a distance to trade with the French, bartering their furs for trade goods. In August 1679, La Salle returned to the Niagara River and found that his ship, the

Chiffon,

was built and ready to sail. After exploring farther west in his ship, La Salle returned east to Fort Frontenac in present-day Quebec, Canada. In the spring of 1681, Father Hennepin, returning from his missionary travels in the far West, came to the Niagara River and found Fort Conty deserted and the seasonal Seneca fishing camp unoccupied.

2.The Fur Trade

While Spain and Portugal aggressively exploited their new world colonies for gold, France and England early recognized an entirely different valuable commodity in the Americas to the north. This was the fur trade. The demand for furs in Europe was great, and since the northern woods abounded with fur-bearing animals, there remained only the job of gathering the furs and transporting them to Europe. The most effective way of doing this was with the help of the various Indian tribes. The Indians trapped the animals and brought the pelts in to trade for other wares. Thus, there grew a valuable fur trade-valuable to both the Indians and the French and English, each of whom vied to dominate the trade.

As time went on, the fur-bearing animals in New York became scarce and the Iroquois recognized that they would soon be left out of the fur trade. Seeing their main trading resource disappearing, the Iroquois began to develop the role as middlemen between the western Indian fur gatherers and the European fur buyers in the East. France and England, competing for the western fur market, needed avenues to and from the western areas. The Niagara region was the all-important link to the West. Thus, control of the Niagara region became crucial to both France and England.

3.

From. La Salle to Denonville

Following La Salle’s abandonment of the Niagara region, the area was visited repeatedly in succeeding years by French traders and soldiers going to and returning from posts further west. The area was also visited by various transient Indian tribes, including large parties of western Indians coming east to reinforce the French in their wars with the Senecas and other Iroquois which broke out in 1684.

The British also were becoming increasingly aware of the Niagara River and the portage, and of the fact that this area was a key to the interior of the continent. In May 1686, Governor Thomas Dongan of the New York Colony wrote to the Marquis de Denonville, the new Governor of French Canada, protesting about rumored intentions of the French to build a fort at the mouth of the Niagara River. By February 1687, Dongan was urging the British to build a fort at the same location.

4.

Denonville’s Expedition Against the Senecas

The increasing number of British trading expeditions through the area alarmed the French. Even while renewing their war with the Senecas, the French decided to fortify the post at the mouth of the Niagara against possible British attack.

In 1687, Denonville came west by way of the St. Lawrence River and Lake Ontario. He marched inland from Irondequoit Bay near present-day Rochester, New York,

*461

and proceeded to burn and destroy villages and crops throughout. Seneca country. The Senecas fled eastward for refuge among the other Iroquois nations. The French were supported in their campaign against the Senecas by reinforcements from the western Indian nations (Indian tribes located to the west of Iroquois territory).

5.

The First Fort at Niagara

After defeating the Senecas, Denonville moved to the mouth of the Niagara River and there constructed a substantial log fort which was called Fort Denonville. The Fort fell upon hard times however, and was abandoned the following year. In 1690, Governor Andros of the New York Colony protested the building of a French fort “at Omagra [Niagara] in the Senne-ka’s [sic] Country.” Joint Stip. at ¶ 31.

6.

King William’s War (1689-1701)

In 1689, following the ascent of King William III to the throne of England in 1688, hostilities broke out between France and England. Upon learning of the hostilities between the French and the British, the Iroquois sided for the most part with the British and began to attack the French. They repeatedly raided French settlements on the St. Lawrence River near Montreal, while the French successfully invaded and ravaged the Mohawk country in 1693, and the Onondaga and Oneida country in 1696. The war took a large toll on the Iroquois and they eventually entered a peace treaty with the French in 1701.

From 1689, the beginning of King William’s War, until the peace treaty between the French and the Five Nations of Iroquois in 1701, the Niagara region continued to be an unguarded gateway open in both directions. ICC Br. at. 25. The Senecas used it in attacking the western tribes allied with the French, and the western tribes also used it in attacking the Senecas.

The Treaty of Peace of 1701 provided that the Iroquois would remain neutral in any further wars between the French and the British. This was á significant concession to the French, and by the same token a disappointment to the British in New York, who not only lost an ally, but also lost control of and any claim to lands which the Iroquois might claim. In an effort to avoid this result, the British took a deed from the Iroquois that allegedly ceded them all the Iroquois title in a vast area of land that included the Niagara region.

7.

The French Return to Niagara (1701-1710)

It was not long after King William’s War before the French were again using the Niagara region regularly. During that time, there was a steady flow of French officers, soldiers, settlers and their families over the Niagara portage to Detroit and other western posts. Indians of various western tribes also continued to come and go by way of Niagara usually for the purpose of trading, but occasionally with hostile intentions toward the Senecas: The French were using and occupying the Niagara region without a fort and felt no particular urgency about refortifying the Niagara portage.

8.

Joncaire and Queen Anne’s War (1702-1713)

The gradual process through which the French established firm control of the Niagara portage following the peace of 1701 was carried out by several individuals who enjoyed particularly close and friendly relations with the Iroquois and had been adopted into various tribes. The most important of these individuals was Louis

*462

Thomas Joncaire, Sieur de Chabert the dominant figure in the Niagara region for more than thirty years.

Joncaire was a French-born soldier who was captured in the 1690’s by pro-English Senecas and adopted by his Seneca captors. Following the peace of 1701, when the Iroquois were formally declared neutral in the rivalry between England and France, Joncaire began promoting Seneca-French rapprochement.

In 1704, Joncaire sent word to the French Governor that' the British had called a meeting of the Iroquois at Onondaga in order to counteract French influence among them, and also to persuade them to let the western Indians pass through their country and trade at Albany. This alarmed the French for it was important to hold the Iroquois to their promise of neutrality, now that war had broken out again between France and Great Britain-the War of the Spanish Succession or Queen Anne’s War. The French Governor ordered Joncaire to attend the meeting at Onondaga, where he successfully persuaded the Iroquois to remain neutral. Down to the end of Queen Anne’s War in 1713, the British repeatedly attempted to get the Iroquois to join in hostile action against the French, but the Iroquois remained neutral.

9.

French Use and Occupancy of the Niagara Region Extended

Joncaire’s influence over the Senecas had been an important factor in keeping them neutral and friendly to the French during Queen Anne’s War. It was to be equally effective in consolidating the French control of the Niagara River portage.

In June 1708, Joncaire met with French officials at the mouth of the Niagara River at the site of the former Fort Denonville. There they discussed the possibility of a new military post being constructed. Jon-caire stated the advantages to be derived from building and garrisoning a fort at that location. He was sure that if the fort were built, many Iroquois would move from the east and establish villages around the fort, thereby reducing the opportunity for British influence. Plans for a fort, however, were delayed.

In the early part of the eighteenth century, the Niagara River portage was a well-established operation. Both European traders and Indians used the portage regularly during this time period. As a supplement to a French troop garrison in the Niagara region, local help was required. Joncaire proposed that the pro-English Senecas be allowed to work on the Niagara portage and told French officials that the Senecas would be under his personal influence and control. He pointed out the benefits to be derived from having at least some Iroquois on the French side. Portaging supplies and pelts between the River below the Falls and the River above provided work to many Senecas. These Senecas lived near their work at the foot of the portage in camps and cabins along the road.

During this time, the British constantly complained to the French about French trespass on territory which the British claimed belonged to them because the Senecas and other Iroquois were British subjects. The French replied that the Indians believed themselves to be independent and that the French right to the Niagara region had been established by actual occupation by La Salle and Denon-ville.

10.

The French Fortify Niagara

In 1720, Joncaire, under orders of the French Governor, approached the Senecas for permission to build a house upon their

*463

land and maintain that settlement even if the British opposed it. The Senecas acquiesced and Joncaire built a Royal Store at the foot of the portage road in present-day Lewiston.

See

Appendix B. The building of the Royal Store was the opening move toward the establishment of a permanent French fort along the Niagara River.

With continued efforts by the British to secure a foothold in the Niagara region, the French decided to augment the Royal Store with additional fortifications. In 1726 and 1727, the French constructed Fort Niagara at the mouth of the Niagara, at the same site where Fort Denonville had been erected.

See

Appendices B and C. By the building of Fort Niagara, the French established open military control of the Niagara River and the Niagara portage, and thereby made more effective their control and supervision over the Niagara region.

Fort Niagara served several important functions for the French. It protected and regulated the movement of traders, settlers, military forces and Indians over this important avenue of communication -between Lake Ontario and the upper Great Lakes. With the aid of sailing vessels on Lake Ontario, it sought with varying success to prevent both Indians and French traders from taking their furs and skins to the British post at Oswego, New York, located at the eastern end of Lake Ontario, and it was a barrier to keep British traders from penetrating to the upper Great Lakes region. Its own trading store was intended to intercept the trade of the Indians coming from the west and to attract the trade of the Senecas to the east. It was also a base for various French military expeditions.

In relation to the- Senecas, Fort Niagara was the center from which the French influenced and “overawed” them. ICC Br. at 35. Fort Niagara and the portage road which it guarded attracted Senecas from their villages in the Genesee Valley. The Senecas sought to profit by carrying goods over the portage and to maintain, friendly relations with their powerful new neighbor. The Seneca understood that so long as they remained oh good terms with the French and avoided warring on France’s Indian allies, the Fort served to protect them also against possible raids from the west.

As.noted, a few Senecas had begun to profit by carrying goods for French traders and military forces over the Niagara portage early in the 1700’s, and by 1718 this work was sufficiently steady and productive to provide employment for a little village of about ten cabins which was reported there in that year. In fact, from 1720 until 1750 the few Frenchmen who resided at Niagara were readily outnumbered by the Senecas who had come to live there in the hope of profiting by supplying the French with food and labor.

11.

British Reaction to Fort Niagara

The construction of Fort Niagara by the French caused the British great alarm. The British were concerned that western Indians wishing to bring furs to Fort Oswego and Albany to trade via Lake Erie might be intercepted at the Niagara portage and convinced to trade with the French. In the-fall of 1727, the British summoned representatives of the Iroquois to Albany and inquired into their reasons for allowing the French to build the fort at Niagara. The British were unable, however, to convince the Iroquois to take any action against the French. In the end, the British took, a deed from the Iroquois which ceded any title they might have had to certain lands, including the Niagara region.

*464

Joncaire died at Fort Niagara on June 29, 1739. He was succeeded by his sons, Philippe and Daniel de Joncaire-Chabert.

12.

King George’s War (1745-1748)

In 1745, with the outbreak of King George’s War between the French and the British, the British Governor, George Clinton, recommended that a fort be built in the Seneca country, that two or three vessels be built, and that Fort Niagara be captured. The British hoped that by capturing Fort Niagara it would bring the Iroquois firmly onto the British side. The Iroquois, however, seeing that neutrality continued to serve their best interests, were still insistent that neither the French at Fort Niagara nor the British at Fort Oswego be attacked. The Senecas lived east of Fort Niagara and west of Fort Oswego and could trade at either place. To them, Fort Niagara was no obstacle, but rather a place to gain profitable employment by carrying on the portage.

During King George’s War, goods became scarcer and higher in price at French posts, and consequently trade at Fort Niagara fell off. The Indians wanted more in return for their furs and could secure higher payment from the British at Fort Oswego.

13.

Fort Little Niagara

In order to ensure even better control of the fur trade and of the Indians, the French decided to build, in addition to Fort Niagara, a fort at the landing above Niagara Falls. In 1750 and 1751, the French, under the direction of Joncaire’s son, Daniel, built Fort Little Niagara, later called Fort Schlosser by the British, a mile and a half above the Falls.

See

Appendices B and C. Daniel Joncaire-Chabert used all his talents of persuasion to keep the Indians from going to Fort Oswego to trade with the British and was generally successful in this endeavor.

During this time, the French also worked to improve the portage route. The French constructed a new road in 1752, that made it easier to haul goods over the Niagara Escarpment.

14.The Ohio Expedition and the French and Indian War

In 1753, the Niagara region bustled with activity in preparation for a great French expedition being readied to occupy and fortify the Ohio country. Between 1753 and 1754, thousands of soldiers and craftsmen, and tons of supplies and equipment, moved through the Niagara region westward toward the Ohio River Valley. The French plan was to conquer that area and to build four forts there. In 1754, the Ohio expedition ultimately led to open warfare between France and Great Britain. This has commonly been referred to as the French and Indian War.

The intensive use of Fort Niagara as a military base and of the Niagara portage as an important military road was continued by the French until 1759. From 1753 to 1759, Fort Niagara was greatly improved, enlarged and strengthened. As a result, France dominated and controlled the Niagara region during this period.

Despite initial successes against the British, including the capture and destruction of the British fort at Oswego, France’s domination of the Niagara region was soon to end. In 1759, the French were on the defensive on all fronts. The British had raided and destroyed Fort Frontenac in August 1758, making it more difficult to send supplies to Fort Niagara. Fort Du-quesne, at the forks of the Ohio River near present-day Pittsburgh, Pennsylvania, was captured by the British in November 1758. In December 1758, the British planned an expedition against Fort Niagara. Sir Wil

*465

liam Johnson, who was second-in-command of the proposed expedition under Brigadier General John Prideaux, was able to win over the Iroquois and gain their assistance and support. He was even able to win over the “Chenossia Indians,” or Genesee Senecas, who had been strongly under French influence. Now that the. French were losing, the Genesee Senecas agreed to join the alliance against them. After a long siege, Fort Niagara surrendered to the British on July 25,1759.

French rule on the Niagara River had ended and was succeeded by British rule. The surrender of Fort Niagara was soon followed by the surrender of Quebec in September 1759, and then by the surrender of all of Canada in September 1760. In 1763, France and Great Britain entered into the Treaty of Paris whereby France ceded to Great Britain all its claims to territories east of the Mississippi River.

E.

British Rule of the Niagara Region

1.

British Indian Policy and the Royal Proclamation of 1763

The British Crown, having conveyed the fee title to land to the colonists by various charters and patents, initially permitted the colonists to purchase and extinguish Indian title, either individually or through the colonies. Many of the colonies, in order to minimize disputes with the Indians, enacted laws requiring colonial approval for individually negotiated land cessions. Unauthorized and unrestricted encroachments on Indian lands continued, however, causing military frictions with the Indians.

The Crown eventually recognized the need to devise plans for a comprehensive, centralized Indian policy. In 1754, for example, the Lords of Trade in England proposed a plan by which “the sole direction of Indian affairs [would] be placed in the hands of some single person.” Robert N. Clinton & Margaret Tobey Hotopp,

Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims,

81 Me. L.Rev. 17, 21 (1979)

(quoting

6

Documents Relative to the Colonial History of the State of New York

903-95 (E.B. O’Callaghan ed. 1855)).

At the outbreak of the French and Indian War in 1754, the British government tried to assume direct control over colonial dealings with the Indians. Felix S. Cohen,

Handbook of Federal Indian Law

57 (1982 ed.). Two superintendents of Indian affairs were appointed, one each for the northern and southern colonies. The superintendents were, in effect, ambassadors whose duties consisted of negotiating treaties, reporting events to the home government, and keeping peace generally among the Indian tribes and the border settlers.

The efforts of the Crown culminated on October 7, 1763 with the issuance of the Royal Proclamation by King George III. The 1763 Proclamation forbade the purchase or settlement of Indian lands west of the crest of the Appalachian Mountains by anyone, including the colonial governors, without permission of the Crown.

13

See

Clinton

&

Hotopp,

supra,

31 Me. L.Rev. at 22;

see also

Appendix F. It also reaffirmed the requirement of imperial approval prior to the issuance of patents to Indian lands lying east of the demarcation line.

See

Clinton

&

Hotopp,

supra,

31 Me. L.Rev. at 22. The 1763 Proclamation was the first attempt to delineate an “Indian country” by drawing a boundary line separating Indians and settlers.

*466

During the pre-revolutionary period the colonies were expanding their settlements and trying to consolidate their charter land claims. They saw the Proclamation of 1763 and Great Britain’s centralization of Indian affairs as an attempt to give favored traders and land speculators western lands to the colonies’ detriment.

Oneida Indian Nation of New York v. New York,

649 F.Supp. 420, 425 (N.D.N.Y.1986), aff

'd,

860 F.2d 1145, 1167 (2d Cir.1988), ce

rt. denied,

493 U.S. 871 , 110 S.Ct. 200 , 107 L.Ed.2d 154 (1989). The colonists considered the Proclamation of 1763 an unwarranted intrusion into colonial affairs. Great Britain’s centralization of Indian affairs eventually became one of the grievances which led to the American Revolution.

Id.

2.

Pontiac’s Rebellion and the 1764 Treaties of Peace

Following the French and Indian War, part of the Senecas became hostile toward the British and there was a gradual development of unrest in the years after 1760. Sir William Johnson, now Superintendent of Indian Affairs for the Northern Colonies, was successful in containing the unrest until 1763, when actual open warfare broke out. Johnson managed to hold five and a half of the Six Nations of Iroquois friendly to the British, but the western Senecas allied themselves with the western Indians attacking British posts. This insurrection is commonly referred to as “Pontiac’s Rebellion” or “Pontiac’s War.”

There was no attack on Fort Niagara by the Indians,, but there was a damaging attack on a British army convoy passing over the Niagara portage on its way to send reinforcements and supplies to Fort Detroit, which was under siege by the Ottawa Indians. On September 14, 1763, some 500 Senecas hiding in ambush beside the Niagara portage drove a number of British soldiers and a convoy of wagons over a precipice and down into the Niagara River Gorge onto the jagged rocks below. It was a bloody fight and the place is still called “Devil’s Hole” or “Bloody Run” because of it.

See

Appendix C.

At the time of the attack at Devil’s Hole, the British did not know which Indians had attacked them. ICC Br. at 48^49. In fact, they speculated that it might have been Mississauga Indians, who were also present in the area at that time.

Id.

It was not until later that the British found out that the western element of the Senecas was involved in the attack.

After learning that the Senecas were responsible for the attack at Devil’s Hole, the British prepared to retaliate against them unless they could be brought to seek terms of peace. Sir William Johnson applied pressure to the other five nations and the Senecas that remained friendly to the British so that they, in turn, would apply pressure to the western Senecas to seek peace.

In April 1764, delegates of the Seneca Nation and Sir William Johnson on behalf of Great Britain met at Johnson Hall, New York, to consider treaty arrangements. On April 3, 1764, Johnson signed the “Preliminary Articles of Peace, Friendship and Alliance” with the Seneca Nation ending hostilities after the French and Indian War. Article 3 of the April 3, 1764 Preliminary Articles of Peace provided that the Senecas:

cede to His Maj’ty and his successor for ever, in full Right, the lands from the Fort of Niagara, extending easterly along Lake Ontario, about four miles ... and running from thence southerly, about fourteen miles to the Creek above Fort Schlosser or little Niagara, and down the same to the River, or Strait and across the same, at the great Cataract; thence Northerly to the Banks of

*467

Lake Ontario, at a Creek or small Lake about two miles west of the Fort, thence easterly along the Banks of the Lake Ontario, and across the River or Strait to Niagara, comprehending the whole carrying place, with the Lands on both sides the Strait, and containing a Tract of [about] fourteen miles in length and four in breath. -And the Senecas do engage never to obstruct the passage of the carrying place, or the free use of any part of the said Tract....

7

Documents Relative to the Colonial History of the State of New York

(“NYCD”) 621 (E.B. O’Callaghan ed. 1855); Joint Stip. at ¶ 47.

In the margin of Article 3, the instrument states as follows: “Agreed to, provided the Tract be always appropriated to H.M.’s sole use that at the definite Treaty, the lines be run in presence of Sr. Wm Johnson and some of the Seneca’s [sic] to prevent disputes hereafter.” 7 NYCD

supra,

at 621; Joint Stip. at ¶ 48.

Thus, under the April 3rd treaty, the Senecas agreed to cede to the British Crown a four-mile wide strip of land running along each side of the Niagara River, from Lake Ontario to a point just above Niagara Falls. This has been referred to in this case and in the ICC proceedings as the “northern Niagara strip.”

See

Appendix G.

Preparations were made for a multi-tribal peace conference at Fort Niagara in July of 1764. A final peace treaty with the Senecas was to be concluded in this context.

Prior to the July 1764 peace conference, Sir William Johnson had been in frequent correspondence with British military authorities about threats to the security of the Niagara portage and the degree of security necessary to guarantee its safety.

See

3

The Papers of Sir William Johnson

162-63 (Milton W. Hamilton ed.1921). His anxiety was increased when the Senecas were late reaching the July 1764 peace conference at Fort Niagara. Johnson wrote: “It has been a happy Circumstance for you that you came in Yesterday, otherwise the Army would certainly have gone against you. I hope for your own sakes you are sufficiently prepared for answering, and fulfilling all your Engagements.”

Id.

at 318; Joint Stip. at ¶ 51.

Johnson called for an expansion of the Preliminary Articles of Peace of April 3, 1764:

With regard to your present Promises, I wish you may be sincere in them: — it is for your Interest, and Security that you should be so — You have so often broke them that we can only Judge by your future Conduct.... What remains for you yet to perform is to acknowledge your perfect Agreement with the Articles concerning the Carrying Place, the Posts at the Rapids ... also that you repeat your Engagements for the Security of this Carrying Place against all them, who would Obstruct it; — all which must be fully performed, else all your Promises must be considered as nothing. — I would further recommend it to you to give a higher Proof [of] your friendship, — that you should cede to his Majesty the Lands from above your late Gift, to the Rapids at Lake Erie on both Side the Streights [sic], in Breadth as the former, and to include all the Islands. — If you do this, I have reason to think his Majesty will be well pleased, & consider you for it.

3

The Papers of Sir William Johnson, supra,

at 318-19; Joint Stip. at ¶ 52.

On August 6, 1764, Johnson signed a “Treaty of Peace and Alliance” with the Seneca Nation. Article 5 provided that:

In addition to the grant made by the Chenussio Deputys to His Majesty at

*468

Johnson Hall, in April, of the Lands from Fort Niagara, to the upper end of the carrying place, beyond Fort Schlos-ser and four miles in breadth on each side of the River, the Chenussios now, surrender up all the lands from the upper end of the former Grant (and of the same breadth) to the Rapids of Lake Erie, to His Majesty, for His sole use, and that of the Garrisons, but not as private property, it being near some of their hunting grounds; so that all that Tract, of the breadth before mentioned, from Lake Ontario to Lake Erie, shall become vested in the Crown, in manner as before mentioned, excepting the Islands between the great Falls and the Rapids, which the Chenussios bestow upon Sir Wm. Johnson as proof of their regard and of their knowledge of the trouble he has had with them from time to time. All of which the Chenussios hope will be acceptable to His Majesty, and that they may have some token of His favour [sic].

7 NYCD,

supra,

at 652; Joint Stip. at ¶ 53.

The August 6th treaty was a continuation of the April 3rd treaty and under it, in addition to the land ceded in the previous treaty

(ie.,

the northern Niagara strip), the Senecas agreed to cede a four-mile wide strip of land on each side of the Niagara River, from the southern-end of the northern Niagara strip to Lake Erie. This has been referred to in this case and in the ICC proceedings as the “southern Niagara strip.”

See

Appendix H.

On August 30, 1764, Johnson transmitted the August 6, 1764 Treaty to the Earl of Halifax, with a cover letter describing the 5th Article of the Treaty and his acceptance of the Niagara Islands as follows:

The Senecas gave me all the Islands laying in the straits, between the two Lakes Ontario and Erie, one of which I know to be very fine Land, and computed at about 15 thousand acres, there are several others, which with the former, have a good deal of clear land, and vast large meadows of grass on them, and will prove absolutely necessary for the Oxen, Horses, ettc. [sic] to be employed in His Maj’ty’s service, as well as the Cattle of the Garrisons, there being no land fit for Meadow or grain near the Fort. I could not agreeable to the Custom of Indians refuse their offer, without giving great offence, and the great addition themselves had made to what their Deputies had agreed to, last April together with their other proposals induced me to accept them, that I might have it in my power, to make an [sic] humble offer of them to His Maj’ty for such uses as he may think proper, I must beg leave to entreat your Lord’p to present my most profound duty to His Maj’ty on this occasion and to assure him, that I should not presume to make this offer, but that I know these Islands will prove of importance within a little time

&

may be extremely useful at present.

7 NYCD,

supra,

at 647; Joint Stip. at ¶ 54. That same day, Johnson also wrote the following to the Lords of Trade:

My sole motive, for accepting of the Islands, which they so earnestly pressed on me, was to have it in my power humbly to offer them to His Majesty; one of them contains near 15000 acres and has much Grass land, which will be very useful to the Cattle at the Garrisons.

7 NYCD,

supra,

at 649; Joint Stip. at ¶ 54. There is no known response from the King to Johnson’s communications regarding the Islands. Joint Stip. at ¶ 55.

Sir William Johnson died in 1774. His will made no mention of the Niagara Islands and contained no residuary clause. George P. Decker,

Diversion of Water

*469

from, the Niagara River, The Niagara Title Papers, Hearings Before the Committee of Foreign Affairs, House of Representatives,

63rd Cong., 2nd Sess. 32-33 (Jul. 15, 1914); Laurence M. Hauptman.

Who Owns Grand Island (Erie County, New York)1?,

23 Okla. City Univ. L.Rev. 151,154 (1998); Joint Stip. at ¶ 56.

After the 1764 treaties of peace, work on the Niagara portage continued under British control. The Senecas no longer had a monopoly on carrying goods on the portage as they once did under the French. They now had to compete with the Missis-saugas, who were also working on the portage.

3.

Daniel Joncaire-Chabert’s Claim to the Niagara Islands

In about 1764, after the French and Indian War, Joncaire’s son, Daniel Jon-caire-Chabert, petitioned the King of England for the return of certain property allegedly taken from him during the War. He claimed that the Iroquois, in consideration for the many years that he had spent among them and to induce him to settle there, had deeded him all the land from Gill Creek located in the vicinity of Fort Little Niagara to Buffalo Creek (also known as the Buffalo River) located in present-day Buffalo, New York, including the Niagara Islands.

See

Appendix A. He contended that this deed was confirmed twice by the Iroquois and was approved by the French government. He stated in his petition that he had invested much money and time clearing the land, planting crops and erecting buildings. He complained that much of his property had been taken or destroyed by the British during the French and Indian War, and asked that his property be returned to him. Not surprisingly, in light of his past support of France, the British turned down his petition.

4.

The 1768 Treaty of Fort Stanwix

The 1768 Treaty of Fort Stanwix (located at present-day Rome, New York) between the British and the Iroquois established the actual boundary line between Indian and Crown lands mandated by the Proclamation of 1763. On November 5, 1768, Sir William Johnson witnessed the “Deed determining the Boundary Line between the Whites and the Indians,” which set a line between Iroquois land and the colonies. 8 NYCD,

supra,

at 135-37; Joint Stip. at ¶ 58. The line was drawn at the eastern boundary of Oneida territory, which was located far to the east of Seneca territory.

See

Appendices D and I.

During the 1768 Treaty negotiations, representatives of the Six Nations stated the following:

Meetings amongst ourselves and with you and from all that you have said to us thereon, we have at length come to a final resolution concerning it, and we hope that what is now agreed upon shall be inviolably observed on your parts as we are determined it shall be on ours and that no further attempts shall be made on our Lands but that this Line, be considered as final and we do now agreed to the Line we have marked upon your Map, now before you on certain conditions on which we have spoken and shah say more and we desire that one Article of this our agreement be,

that none of the Provinces or their people shall attempt to invade it under color of any old Deeds,

or other pre-tences [sic] what soever for in many of these things we have been imposed upon, and therefore we disclaim them ah....

8 NYCD,

supra,

127 (emphasis added); Joint Stip. at ¶ 59. ■

At the conclusion of the negotiations, Johnson made the following statement:

*470

As to the several reservations you make in your Cession to the King and the other points you recommend you may be assured that His [Maj’y] shall be made acquainted with them, as I shall transmit to him a copy of our transactions at this place

&

I may venture to assure you that they will meet with all possible regard from a Prince of His clemency & Justice & I now give you this Belt to strengthen ratify and confirm the Boundary to all transactions necessary thereto.

8 NYCD,

supra,

at 130; Joint Stip. at ¶ 60.

Johnson forwarded the minutes from these meetings to the Lords of Trade, who stated in response that the King would “give the necessary directions for the confirmation of it [the Treaty] as agreed upon at Fort Stanwix.” 8 NYCD,

supra,

at 166; Joint Stip. at ¶ 61.

F.

The Niagara Region during the Revolutionary War

When the Revolutionary War began in 1776, Fort Niagara became the British center for carrying on military operations against the United States in the middle section of the country. The British Indian Superintendent moved his headquarters from eastern New York to Fort Niagara and British communication with the Iroquois took place from there. Fort Niagara was also a staging base for raids against the American frontier.

Maintenance of peaceful or at least neutral relations with the Six Nations of the Iroquois was an important factor to the United States in its conduct of the Revolutionary War, since they were the most powerful of the Indian nations and had a history of alliance and friendship with the British Crown, as evidenced by the Proclamation of 1763 and the 1768 Treaty of Fort Stanwix, both of which protected Iroquois lands.

See Oneida Indian Nation of New York v. New York,

691 F.2d 1070, 1088 (2d Cir.1982) (citations omitted);

United States v. Oneida Nation of New York,

217 Ct.Cl. 45 , 576 F.2d 870, 876 (1978). - Accordingly, in 1775, the Continental Congress sought the assurance of the Six Nations that they would remain neutral in the war between the United States and Great Britain.

See

2

Jour. Continental Cong.

174-77 (Jul. 12, 1775), 177-83 (Jul. 13, 1775). The Six Nations pledged their neutrality, but by mid-1776, it became apparent that some of the Six Nations, namely the Senecas, Cayugas, Onondagas and- Mohawks, were engaging in combat on the side of the British.

Oneida Nation of New York,

576 F.2d at 876 .

In August 1776, United States commissioners held a conference with the Six Nations at which they accused the hostile tribes of violating their pledges of neutrality and asked them to declare their true intentions.

Id.

Despite further assurances of neutrality, by 1777, the hostile tribes were engaged in combat against the United States. On December 3,1777, the Continental Congress sent a message to the Six Nations asking the hostile tribes why they were disloyal and telling the friendly tribes that they would be protected.

See

9

Jour. Continental Cong.

994-99 (Dec. 3, 1777).

At the beginning of the War, except for those working on the portage, the Senecas were still living on their original homelands along the Genesee River, some sixty miles or so to the east of the Niagara River. In 1779, an expedition under General John Sullivan of the Continental Army invaded Seneca country. After defeating the Senecas at New Town, near present-day Elmira, New York, the army proceeded north through the Genesee Valley, destroying the Senecas’ homes and crops. Many of the Senecas fled to Fort Niagara seeking the protection of the British. Af

*471

ter the conclusion of the War, the Senecas tended to remain in the Niagara region. These facts were summarized by Orasmus H. Marshall in his paper concerning the Niagara frontier that was presented to the Buffalo Historical Club in 1865:

During the Revolutionary War [the Senecas] espoused the British cause. The atrocities they committed in their savage mode of warfare culminated in 1778 in the memorable massacre at Wyoming, and induced' General Washington, in imitation of De Nonville, to send an army for their chastisement. The famous expedition under General Sullivan was organized for this purpose which, penetrated the heart of the Seneca country, resulted, for the time being, in their overthrow and complete dispersion. The proud and formidable nation fled, panic stricken, from their “pleasant valley,” abandoned their villages, and sought British protection under the guns of Fort Niagara. They never, as a nation, resumed their ancient seats along the Genesee, but sought and found a new home on the secluded banks and among the basswood forests of the Buffalo Creek, whence they had driven the Neutral Nation one hundred and thirty years before.

ICC Br. at 52-53. Thus, permanent Seneca residence in the Niagara region was first brought on by the French hiring them to work on the portage and then ultimately by the British furnishing them protection during the Revolutionary War.

Id.

at 53 .

G.

The United States’ Early Mechanisms for Dealing with the Indians

From the first days of the Continental Congress and through the struggle for independence, the American government showed great solicitude for the Indians.

See

Cohen,

supra,

at 58. Almost immediately after its formation, the Continental Congress pledged itself to secure and preserve the friendship of the Indian nations. 2

Jour. Continental Cong.

174-77 (Jul. 12, 1775).

The Continental Congress’s perceived need for a national Indian policy resulted in the creation of certain federal administrative mechanisms even prior to the adoption of the Articles of Confederation. The Congress attempted to centralize authority over Indian matters in the national government by establishing boards of commissioners to secure the friendship of the tribes and to counter British-inspired hostilities. On July 12,1775, as one of its first acts, the Congress created the northern, southern and middle departments of Indian affairs. Five commissioners were appointed to head the southern department, and three each were appointed to head the northern and middle departments. Their duties were “to treat with the Indians ... in order to preserve peace and friendship with the [said] .Indians and to prevent their taking any part in the present commotions.”

Id.

at 175. Thus, the responsibilities of the new commissioners were similar to those of the British superintendents. These federal mechanisms for dealing with the Indians were continued' under the Articles of Confederation.

H.

The Articles of Confederation

In 1777, after the commencement of the Revolutionary War, the Continental Congress drafted the Articles of Confederation, which when finally ratified in 1781, were to govern the relationship between the federal (or “confederal”) government and the states until ratification of the United States Constitution in 1789. The Articles were, in essence, the first constitution of the United States.

Drafted during the throes of the Revolutionary War, the Articles reflected the wariness by the states of a strong central

*472

government. The fundamental structure of the Articles was one of limited delegation of powers to the national government with reservation to the states of all powers not delegated. Article II provided that: “Each State retains its sovereignty, freedom and independence', and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” The Necessary and Proper Clause, which played such a significant part in the shaping of federal powers under the Constitution,

see M’Culloch v. Maryland,

17 U.S. (4 Wheat.) 316 , 4 L.Ed. 579 (1819), was absent from the Articles of Confederation.

The framing and ratification of the Articles of' Confederation occurred against a background dominated by two overriding circumstances pertinent to the issues present here.

See generally Oneida Indian Nation,

860 F.2d at 1152-53 . First, treaties of peace with both Great Britain and the Iroquois had not yet been concluded. The Articles were submitted to the states in 1777 and ratified by Maryland, the last state to do so, in 1781. The Treaty of Paris, formally ending hostilities with Great Britain, was not signed until September 3, 1783. The Treaty of Fort Stanwix, ending hostilities with the four Iroquois nations that had sided with the British — the Senecas, Onondagas, Cayugas and Mohawks — and assuring protection to the two Iroquois nations that had sided with the United States — the Oneidas and the Tuscaroras — was not signed until October 22, 1784.

Second, there existed a major controversy between the so-called “landed” states— those claiming western lands — and the so-called “landless” states' — those without such claims. The landed states, New York, Connecticut, Massachusetts, Virginia, North Carolina, South Carolina, and Georgia, asserted their claims to western lands primarily on the basis of their colonial charters, except for New York, which based its claim on its one-hundred year history of special relationship with the Six Nations. The landless states were New Hampshire, Rhode Island, New Jersey, Pennsylvania, Delaware, and Maryland. The landless states feared that the landed states would dominate the national government if they were permitted to retain control over their unsettled western expanses. The landless states also wanted the national government to control the sale of these territories so that all the states would benefit. On the other hand, the landed states wanted to control as much land as they could.

See

Jack N. Rakove,

The Beginnings of National Politics: An Interpretive History of the Continental Congress

156 (1979).

The new national government wanted to limit the territory of the landed states to their traditional borders near the East Coast and secure for the United States the vast domain of land these states claimed westward to the Mississippi River, or even “to the South Sea,” as stated in the colonial charters of Connecticut, Massachusetts, Virginia, North Carolina, South Carolina, and Georgia. From the national government’s point of view, these western lands were necessary to finance the nation’s war debt and to compensate the soldiers who had fought in the Revolutionary War.

This controversy over western lands was one of the primary reasons why final ratification of the Articles of Confederation was delayed for several years.

See Oneida Indian Nation,

649 F.Supp. at 429 . Maryland, for example, instructed her delegates not to agree to the Articles until matters concerning the western lands had been settled.

See

U.S.C.A. Art. of Con-fed., Historical Notes 15 (1987); 14

Jour. Continental Cong.

621-22 (May 21, 1779).

Finally, a compromise was reached whereby the landed states ceded “their”

*473

western lands to the United States, often in exchange for recognition of favorable boundaries for their traditional areas of state jurisdiction.

See Oneida Indian Nation,

860 F.2d at 1152 . The landed states also won two important constitutional guarantees in the Articles,- one protecting the states’ territories from encroachment by the national government and the other curtailing national power over Indian affairs.

See id.

at 1153, 1156-57 ; Merrill Jensen,

The Articles of Confederation

159-60 (1940). First, Article IX(2) provided that: “no.State shall be deprived of territory for the benefit of the United States.”

See

U.S.C.A. Art. of Confed. art. IX, cl. 2. Thus, under the Articles, the national government could not take land belonging to a state for its own purposes. Second, in the contentious area of Indian affairs, Article IX(4) provided that:

The United States in Congress assembled shall also have the sole ahd exclusive right and power of ... regulating the trade and managing all affairs with the Indians, not members of any of the States,

provided that the legislative right of any State within its own limits be not infringed or violated

[.]

Id.

at art. IX, cl. 4 (emphasis added). The so-called “legislative right proviso” in Article IX(4) protected the states’ right of preemption to Indian lands within their borders.

14

Oneida Indian Nation,

860 F.2d at 1155-58 . Thus, under Article IX(4), the national government had the sole power to manage Indian affairs, so long as its actions did not interfere with the states’ right of preemption.

Id.

I.

Recognition of New York’s Boundaries

As stated, as part of the compromise leading to ratification of the Articles of Confederation, the landed states, of which New York was one, ceded their western lands to the United States in exchange for recognition of favorable boundaries for their traditional areas of state jurisdiction. On March 1, 1781, pursuant to a 1780 Act of the New York Legislature entitled “An Act to Facilitate the Completion of the Articles of Confederation and Perpetual Union Among the United States of America,” New York offered to - restrict its claims to western land.

See

19

Jour. Continental Cong.

208-13 (Mar. 1,1781); Joint Stip. at ¶ 64. The Act allowed New York’s delegates to the Continental Congress to limit and restrict the boundaries of western New York as they judged to be expedient. Under the boundaries offered by New York, the Niagara Islands were included within the State’s territory. 19

Jour. Continental Cong,

at 212-13.

On October 29, 1782, the Continental Congress accepted New York’s cession of land that included its most western lands,

i.e.,

all lands west of a meridian drawn south from the western tip of Lake Ontario.

See

23

Jour. Continental Cong.

693-94 (Oct. 29, 1782), 695 (Oct. 30, 1782); Joint Stip. at ¶ 65. Thus, as of 1782, New York’s western boundary had been fixed by the national government, with the Niagara region and the Niagara Islands lying within the State’s territory.

See Oneida Indian Nation,

860 F.2d at 1167 .

J.

The 1783 Treaty of Paris Ending the Revolutionary War

The Preliminary Articles of Peace between the United States and Great Britain brought the Revolutionary War to a conclusion in November 1782. On September 3, 1783, the United States and Britain

*474

entered into the Treaty of Paris finalizing the terms of peace. One of the most important issues during the Treaty negotiations was where the international boundary dividing the United States and British Canada would be located. Article 2 of the Treaty ultimately described the northern portion of the boundary as a line:

along the middle of said river [the St. Lawrence] into Lake Ontario through the Middle of said Lake until it strikes the Communication by Water between that Lake and Lake Erie [the Niagara River]; Thence along the middle of said Communication into Lake Erie; through the Middle of said Lake until it arrives at the Water Communication between that Lake and Lake Huron....

Treaty of Paris,- Sept. 3, 1783, 8 Stat. 80 ; Joint Stip. at ¶ 68.

Notwithstanding this agreed upon boundary, the British continued to maintain a significant presence on the eastern side (the United States’ side) of the Niagara River, thereby presenting a continued threat of renewed warfare with the United States. The British retained possession of Fort Niagara until 1796, when they finally evacuated the Fort in compliance with the terms of the 1794 Jay Treaty. Jay Treaty of 1794, Nov. 19,1794, 8 Stat. 116 .'

K.

The 1784 Treaty of Fort Stanwix

1.

Proposal for Treaty between the United States and the Iroquois

Great Britain and the United States made no provision for their former Indian allies in the Treaty of Paris. The Treaty confirmed the sovereignty of the United States without reservation of Indian rights.

See Oneida Indian Nation,

691 F.2d at 1088 . - Thus, even after the Treaty of Paris, there was no peace treaty in place between the United States and Britain’s Indian allies.

With no peace treaty in place, hostilities, or at least the threat of hostilities, with the Indians continued. For example, as late as May 1, 1783, fighting with the Indians continued in the Mohawk Valley and on the Pennsylvania border. 24

Jour. Continental Cong.

319 (May 1, 1783); H.S. Manley,

The Treaty of Fort Stanwix

14 (1932). The Continental Congress feared that the Indians might again ally themselves with the British, who refused to vacate their forts at Niagara, Oswego and Detroit.

See

24

Jour. Continental Cong.

319 (May 1, 1783); 25

Jour. Continental Cong.

682 (Oct. 15, 1783). Congress- also feared that further incursions onto Indian land or fraudulent dealings with the Indians might induce the tribes to unite against- the United States in an Indian war.

See

24

Jour. Continental Cong.

503 (Aug. 12, 1783), 505-06 (Aug. 13,1783); 25

Jour. Continental Cong.

602 (Sept. 22, 1783). In the immediate aftermath of the Revolutionary War, neither the new national government nor the individual states had the economic resources or manpower. to engage in a major Indian war.

See Oneida Indian Nation,

691 F.2d at 1077 . Moreover, Congress recognized that continued Indian hostilities, would delay settlement of the western lands..

See Oneida Indian Nation,

649 F.Supp. at 443 .

George Washington had a major influence in shaping Indian policy during this period. He believed that the territory held by those tribes that had allied with the British should be regarded as “conquered provinces,” although he opposed driving the Indians from' the land altogether. Cohen,

supra,

at 59. In a September 7,1783 letter to James Duane, chairman

oí

the congressional, advisory committee to the Commander-in-Chief, Washington set forth his views as to the nature and purposes of a treaty with the Six Nations.

See 27 The Writings of George Washing

*475

ton

134-37 (Fitzpatrick ed.1938). Washington urged that a treaty should be negotiated to establish a boundary line for the lands of the Six Nations. He cautioned that private entrepreneurs should not be permitted to purchase Indian land and that the plans of some states, including New York (discussed in more detail

infra

), to expel the tribes from their borders posed a threat to establishing both peace and a national domain in the West.

The following month, the Continental Congress adopted a report of its Committee for Indian Affairs, recommending that the United States negotiate a peace treaty with the Six Nations of the Iroquois. 25

Jour. Continental Cong.

680-83 (Oct. 15, 1783). “The report pointed out that the subjugation of the Indians would be expensive, and would only result in their emigrating to Canada, with attendant advantages to the British in peace and war.” Manley,

supra,

at 48. The report also recommended that the Indians be “informed that the British had given up the territory without reservation for the Indians,” but that the United States would insist that the Indians release title to only a limited amount of land.

Id.

The report stated:

That although motives of policy as well as clemency ought to incline Congress to listen to the prayers of the hostile Indians for peace, yet in the opinion of the committee it is just and necessary that lines of property should be ascertained and established between the United States and them, which will be convenient to the respective tribes, and commensurate to the public wants, because the faith of the United States stands pledged to grant portions of the uncultivated lands as a bounty to their army, and in reward of their courage and fidelity, and the public finances do not admit of any considerable expenditure to extinguish the Indian claims upon such lands; because it is become necessary, by the increase of domestic population and emigrations from abroad, to make speedy provision for extending the settlement of the territories of the United States; and because the public creditors have been led to believe and have a right to expect that those territories will be speedily improved into a fund towards the security and payment of the national debt. Nor in the opinion of the committee can the Indians themselves have any reasonable objections against the establishment recommended. They were, as some of them acknowledge, aggressors in the war, without even a pretence [sic] of provocation; they violated the convention of neutrality made with Congress at Albany, in 1775 and in return for proffered protection, and liberal supplies, and to the utter ruin and impoverishment of thousands of families, they wantonly desolated our villages and settlements, and destroyed our citizens. To stop the progress of their outrages, the war, at a vast expense to the United States, was carried into their own country, which they abandoned. Waiving then the right of conquest and the various precedents which might be quoted in similar instances, a bare recollection of the facts is sufficient to manifest the obligation they are under to make atonement for the enormities which they have perpetrated, and a reasonable compensation for the expenses which the United States have incurred by their wanton barbarity; and they possess no other means to do this act of justice than by a compliance with the proposed boundaries. The committed are of the opinion, that in the negotiation which they recommend, care ought to be taken neither to yield nor require too much; to accommodate the Indians as far as the public good-will admit; and if they should ap

*476

pear dissatisfied at the lines which it may be found necessary to establish, rather to give them some compensation for their claims, than to hazard a war, which will be much more expensive; but it is supposed that when they shall be informed of the estimate of the damages which our citizens have sustained by their irruptions, and ■ of the expenses which the United States have incurred to check their career, it will have a tendency to suppress any extravagant demands.

25

Jour. Continental Cong.

682-83 (Oct. 15,1783).

In the resolution adopting the Committee’s recommendation, the Congress specified the land to be ceded to the United States by the Iroquois. The resolution stated:

That the following lines shall be proposed to be mutually agreed upon and established between the United States and the several tribes of Indians who shall be affected thereby;

[Bjeginning at the mouth of the great Miami River, which empties into the Ohio, thence along the said river Miami to its confluence with the Mad river; thence by a direct line to the Miami fort at the village of that name on the other Miami river which empties into lake Erie; thence along the last mentioned river to lake Erie, comprehending all the lands between the above mentioned lines and the .State of Pennsylvania on the East, Lake Erie, on the North and the River Ohio on the South East.

Id at 686. These lands were .located in the so-called “Northwest Territory.”

i.e.,

present-day Ohio, outside New York’s recognized western boundary. Congress planned to sell this land to pay the United States’ war debts. Neither the Committee’s report nor the congressional resolution mentioned the Niagara region or the Niagara Islands as lands to which the Indians would be required to relinquish title under the treaty. In adopting the report, Congress provided that the authorization for the treaty “shall not be construed to affect the territorial claims of any of the states, or their legislative- rights within their respective limits.”

Id

at 693.

On March 4, 1784, Congress elected the treaty commissioners who would negotiate the treaty. 26

Jour. Continental Cong.

124 (Mar. 4, 1784). The next day, Congress ordered the commissioners to meet in New York City on April 10,1784, for the purpose of fixing a time and place for the treaty. 26

Jour. Continental Cong.

124-25 (Mar. 5,1784).

On March 12, 1784, Congress approved the formal commission under which the treaty commissioners would act. 26

Jour. Continental Cong.

133-35 (Mar. 12, 1784). It granted the commissioners “full power and authority for us and in our name to confer, treat, agree and conclude” with the Indians, “of and concerning the establishment of peace ..., extinguishing their claims and settling boundaries between them and the citizens of the United States, in as ample form and with the same effect as if we were personally present and acted therein, hereby promising to hold valid and to fulfill and execute whatever shall be agreed upon, concluded and signed by our said commissioners or any three of them.”

Id

Commissioner Richard Butler interpreted these instructions as follows: “From these instructions I am of Opinion the Commissioners are authorized to make the best bargain for the U-.S. that circumstances may put in their .power, or reduce them to.” Richard Butler’s Notes on the Treaty of Fort Stanwix (October 18, 1784).

Richard Butler Papers, 3

Frontier Wars Papers (Series U), Lyman Draper Manuscripts (State Historical Society of Wisconsin). .

*477

On March 19, 1784, Congress revised the description of the boundary line to be .drawn between Indian and United States territory. The new western boundary line was described as “a meridian line passing through the lowest point of the rapids of Ohio to the northern boundary of the United States.” 26

Jour. Continental Cong.

152-58 (Mar. 19, 1784). The rest of the boundaries were unchanged from the resolution of October 15, 1783. There was still no mention of the Niagara region or the Niagara Islands as lands to which the Indians would be required to relinquish title.

15

Due to a delay in the commissioners arriving in New York City to schedule the treaty, the treaty had to be put off until sometime after August so as not to conflict with the Indians’ corn planting season.

See

Manley,

supra,

at 49.

2.

New York’s Attempt to Treat with the Iroquois

At the same time the United States was planning to treat with.the Six Nations of the Iroquois, New York was also planning to enter into a treaty of peace with them. New York believed that it had the right under the Articles of Confederation to treat with the Indians located within its borders.

Id.

at 24-25. In March 1783, the New York legislature had formulated a plan to end hostilities with the Six Nations under an arrangement whereby New York would displace the Senecas, the Cayugas, and the Onondagas from the lands they claimed within New York’s borders and then negotiate with -the Oneidas to exchange their land for land previously owned by the Senecas.

Id:

at 28-29..' New York’s plan aroused serious concern in Congress that New York’s attempt to negotiate peace with the Six Nations by removing some of the tribes from New York’s borders would precipitate hostilities.

New York’s Governor George Clinton knew of the United States’ plan to treat with the Six Nations. The Governor advised the confederal treaty commissioners not to enter into any stipulations with Indians residing in New York prejudicial to the State’s interest. They, in turn, informed him that New York should subordinate its business with the Indians to that of the general treaty, as Pennsylvania had done.

16

Id.

at 54-55.

Undaunted, Governor Clinton in April 1784, invited the tribes of the Six Nations to a meeting to adjust all differences between them and the State of New York. A meeting was eventually set for the end of August at Fort Stanwix.

On September 4, 1784, after some delay, the treaty negotiations between New York

*478

and the Six Nations commenced at Fort Stanwix.

See

Manley,

supra,

at 68. Governor Clinton and the New York Indian commissioners met first with the Oneidas and Tuscaroras, assuring them of their friendship. They then met with the four hostile nations, the Mohawks, Cayugas, Onondagas, and Senecas, hoping to obtain an outright cession of their lands within New York’s borders.

The Six Nations were represented primarily by Joseph Brant, the famous Mohawk Chief, at the treaty negotiations. Speaking on behalf of the Senecas and the other tribes of the Six Nations, Chief Brant informed the New York delegation that the Six Nations preferred to meet first with the national government and then meet with New York, if necessary.

Id.

at 70. Governor Clinton responded by explaining to the Indians that under the Articles of Confederation and the State Constitution, New York had a right to treat with them. He then explained that in order to establish peace between New York and the Six Nations, it would be necessary to draw a boundary line between the two, and that in consideration for New York’s losses during the War, it would be reasonable for the Six Nations to cede some of their land to the State.

Id.

at 71. He stated that “he would not for the present mention any particular quantity or tract, until he was more fully informed of their sentiments, but he did expect part of the lands to be ceded would be in the vicinity of Niagara and Oswego, to accommodate the settlements at those places.”

Id.; see also

1

Proceedings of the Commissioners of Indian Affairs Appointed by Law for the Extinguishment of Indian Title in the State of New York

(“NY-CIA”) 57 (Franklin B. Hough ed. 1861). In reply, the Indians recognized the right of New York to treat with the Six Nations, and that a cession of land would be reasonable. Manley,

supra,

at 72. They also explained, however, that the delegates present at the treaty did not have the authority to stipulate to any particular cession. They told Governor Clinton and the New York commissioners that they expected the Six Nations to treat with New York about such a cession, but only after the treaty with the United States. With regard to the Niagara lands, however, Chief Brant acknowledged that the Six Nations’ rights to those lands had already been ceded as a result of their previous treaty with Great Britain:

Brothers! You have particularly expressed your wish to have land at Niagara and Oswego, for the Accommodation of your ancient Settlement at those places. We have formally ceded some Lands to the Government of the late Colony of New York for the Use of the King. This already belongs to You by the Treaty with Great Britain ....

1 NYCIA,

supra,

at 61. Due to the Six Nations’ unwillingness to enter into an agreement with New York before their meeting with the confederal treaty commissioners, the Governor terminated the treaty negotiations. New York’s attempt to consummate a separate peace had ended in failure.

3.

The Confederal Treaty of Fort Stanwix

The confederal commissioners appointed to negotiate with the Six Nations made arrangements to meet with the Indians in October 1784, at Fort Stanwix. Formal treaty sessions began on October 12, 1784. On October 20, 1784, after several days of negotiation, the confederal commissioners dictated the terms of peace to the Indians. On October 22,1784, the treaty was signed by the commissioners and representatives

*479

of the Six Nations.

17

See generally 2 The Olden Time

404-28 (Craig ed. 1846); Minutes of the proceedings at Fort Stanwix, Wayne Manuscripts, Indian Treaties 1778 to 1795, B (Historical Society of Pennsylvania); Hallock F. Raup,

Journal of Griffith Evans,

Pennsylvania Magazine of History and Biography 204-15 (April 1941).

As stated,, one of the purposes of the United States in entering the Treaty of Fort Stanwix was to obtain the release of any Iroquois claims to the Northwest Territory (lands lying to the west of New York’s recognized western boundary), thereby creating a national domain, which the United States could then use to pay its war debts. Although the Continental Congress had only instructed the treaty commissioners to obtain the relinquishment of Indian claims to the Northwest Territory, the commissioners also obtained, in Article 3 of the Treaty, the relinquishment of the Six Nations’ claims to a large portion of the Niagara region, including the Niagara Islands all of which lies within the western boundary of New York as fixed by the national government in 1782. Article 3 of the Treaty reads:

A line shall be drawn, beginning at the mouth of a creek about four miles east of Niagara, called Oyonwayeá, or Johnston’s Landing-Place, upon the lake named by the Indians Oswego, and by us Ontario from thence southerly in a direction always four miles east of the carrying path, between Lake Erie and Ontario, to the mouth of the Tehosero-ron, or Buffaloe [sic] Creek, on Lake Erie; thence south to the north boundary of the state of Pennsylvania; thence west to the end of the said north boundary; thence south along the west boundary of the said state, to the river Ohio; the said line from the mouth of the Oyonwayea to the Ohio, shall be the western boundary of the lands of the Six Nations, so that the Six Nations shall and do yield to the United States, all claims to the country west of said boundary, and then they shall be secured in the peaceful possession of the lands they inhabit east and north of the same, reserving only six miles square round the fort of Oswego, to the United States, for the support of the same.

Treaty with the Six Nations, 1784, Oct. 22, 1784, 7 Stat. 14 ;

see also

Appendix J.

After the conclusion of the Treaty, the commissioners sent a message to the President of the Congress, stating in part:

We have the honor of transmitting to your Excellency, the articles of a treaty we concluded with the Six Nations, by which the cession of territory is fixed, so far as it depends upon these Nations.

We have also secured Niagara, the carrying place between lakes Erie and Ontario, together with Oswego, and a competent district around it, to the United States.

Letter, Arthur Lee, Oliver Wolcott and Richard Butler to the President of the Continental Congress (Oct. 22, 1784).

Papers of the Continental Congress

item 56, f. 137-40 (emphasis added); Manley,

supra,

at 96.

On December 3, 1784, the committee appointed by the Continental Congress to review the terms of the Treaty recommended “[t]hat the United States in Congress assembled approve of this treaty and every part of the same.” 27

Jour. Continental Cong.

659 (Dec. 3, 1784). Although there is no record of formal approval of the Treaty by the Congress, on June 3,

*480

1785, Congress ordered the Treaty published. The Treaty was later recorded in a 1846 official compilation of Indian treaties.

See Treaties Between the United States and the Several Indian Tribes,

7 Stat. 15 .

When Congress received the Treaty and ordered it published, it adopted language offered by Melancton Smith a delegate from New York declaring that “no purchases, which have been or hereafter may be made from the Indians, at any treaties held or to be held with them, of .their right to soil within the limits of any state, can, ought, or shall be considered as interfering with the right of any such state to the jurisdiction or soil.” 28

Jour. Continental Cong.

426 (June 3,1785).

On October 4, 1785, a committee of the Continental Congress recommended that the Congress appoint an agent to reside in the country of the Six Nations and that the agent “be instructed to inform the Oneidas and also the Cayogan Chiefs, that Congress will preserve inviolate the Treaty of Fort Stanwix, concluded between then-commissioners and the Chiefs of the Six Nations.... ” 29

Jour. Continental Cong.

806 (Oct. 4,1785).

L.

Seneca Discontent with the 1784 Treaty of Fort Stanwix

The 1784 Treaty of Fort Stanwix created much discontent among the Senecas. They felt that they were required to relinquish too much land under the Treaty. The Senecas continued to occupy lands west of the Fort Stanwix line and complained to both the national and state governments about the terms of the 1784 Treaty.

For example, in 1787, Seneca leaders met with the New York State Commissioners of Indian Affairs to seek the State’s assistance in convincing the United States to restore to the Senecas their lands taken by the Treaty. The Seneca leaders stated to the New York Indian Commissioners:

■Brothers! The United States have sent Word to us, that they expect soon to get Possession of Oswego and Niagara, and that they will take no more Land around each than the King of England had, and that they then would open the Trade to every Part of our Country.

Brothers! Whenever the United States take Possession of Oswego and Niagara, we request that the Troops may go up the Mohawk River and by the Lakes, and not through our Country, as it may disturb our Wives and Children, and we request that no more Lands round each may be taken Possession of than what the King of England had, which was four Miles square at Oswego, and at Niagara, from Johnson’s Landing four Miles along the River till it reaches Lake Erie.

See

1 NYCIA,

supra,

at 111.

New York’s Indian Commissioners reported to Governor Clinton regarding the Senéca request for assistance as follows:

They [the Seneca Chiefs] complained that the Commissioners of Congress at Fort Schuyler

18

had extorted from them Concessions which the Deputies they had sent had no right to make. They however declared that the Extent of four Miles round the Posts of Oswego and Niagara, and the Road from the latter place to Lake Erie were proper, they would abide by it.

Id.

at 112 (footnote added).

In response to the Seneca Chiefs’ request, the New York State Senate resolved, in part:

That his Excellency the Governor be requested to make such communications

*481

to the Seneca Chiefs, now at Albany, in answer to their speech, as he shall deem conducive to conciliate the good will of the Six Nations to this, and the United States; and to inform them, that the land ceded at the treaty of Fort Schuyler [Stanwix] in 1784, to the United States, (except those they mention in the vicinity of Oswego and Niagara) are not deemed to be comprehended within the jurisdiction of this State.

Journal of the Senate of the State of New York

75, 80 (1787). The State Assembly concurred in this resolution by their own resolution.

Journal of the Assembly of the State of New York

139 (1787).

M.

The 1786 Hartford Compact

Despite the Continental Congress’s acceptance of New York’s cession of its western land claims in 1782, and its recognition of New York’s western border, New Yprk still faced a land claim by the Commonwealth of Massachusetts.

See

Joint Stip. at ¶¶ 79-82. Massachusetts claimed that its original royal grant of 1620 ran “from sea to sea” and extended past the former Dutch colony of New York into the western part of what is now New York State.

This dispute between Massachusetts and New York was resolved by an agreement (the “Hartford Compact”) entered into between commissioners representing the two states in Hartford, Connecticut, on December 16, 1786. The Hartford Compact, by its terms, applied to all of the lands in New York State west of a meridian running north from the New York Pennsylvania line “at a point distant eighty two miles west from the northwest corner of the State of Pennsylvania, on the Delaware river,” a line which runs, approximately, through Seneca Lake to Sodus Bay on Lake Ontario. The two states further agreed to a line “which will pass one mile due east from the northern termination of the strait or waters between Lake Ontario and Lake Erie; ... thence on the eastern side of the said strait by a line always one mile distant from and parallel to the said strait to Lake Erie.”

See

Appendix K.

The Compact provided that Massachusetts “cede[d], grantfed], release[d] and confirm[ed] to the State of New York ... the government, sovereignty and jurisdiction” to all the lands west of the meridian, and New York “cede[d], grant[ed], release[d] and confirm[ed] to the said Commonwealth of Massachusetts ... the right of preemption of the soil from the native Indians ... which the State of New York hath” west of the meridian, except for those lands west of the line drawn one mile east of the Niagara River, to which New York retained its right of preemption.

See id.

N.

The 1789 Treaty of Fort Harmer

The Senecas’ misgivings over what they perceived as the injustice of the 1784 Fort Stanwix Treaty posed a threat of renewed hostilities against the United States, particularly in light of the continued British presence on the east side of the Niagara River. On January 9, 1789, in an attempt to soothe Seneca dissatisfaction with the 1784 Treaty, the United States treated again with the Six Nations at Fort Harmer (present-day Marietta, Ohio).

See

Joint Stip. at ¶ 83. In the Fort Harmer Treaty, the United States compensated the Six Nations for the land they relinquished in the 1784 Treaty of Fort Stanwix but did not alter the line drawn by the 1784 treaty. The purpose of the Treaty of Fort Harmer, as stated in its preamble, was for:

removing all causes of controversy, regulating trade, and settling boundaries, between the Indian nations in the northern department and the ... United States, of the one part, and the sachems

*482

and warriors of the Six Nations, of the other part[.]

Treaty with the Six Nations, 1789, Jan. 9, 1789, 7 Stat. 33 . The Fort Harmer Treaty, which was executed after the ratification of the United States Constitution, was never ratified by the Senate or proclaimed by the President.

0.

The Constitution and the Noninter-course Act

The United States Constitution became effective on March 4, 1789.

19

The Indian Commerce Clause of the Constitution, art. I, § 8, cl. 3, gave the federal government the sole power over Indian affairs and put to rest the dispute between the national government and the states under the Articles of Confederation as to who had authority to deal with Indian matters.

On July 22, 1790, pursuant to the Indian Commerce Clause, Congress passed the first Indian Nonintercourse Act, ch. 33, 1 Stat. 137 , which declared, in part:

That no sale of lands made by any Indians, or any nation or tribe of Indians within the United States, shall be valid to any person or persons, or to any state, whether having the right of preemption to such lands or not, unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.

The Nonintercourse Act was reenacted in 1793, 1796, 1799 and 1802.

20

The Act, as modified in 1834, is currently codified in 25 U.S.C. § 177 .

In passing the Nonintercourse Act, Congress’s dual purposes were “to prevent unfair, improvident or improper disposition by Indians of lands owned or possessed by them to other parties,”

Federal Power Comm’n v. Tuscarora Indian Nation,

362 U.S. 99, 119 , 80 S.Ct. 543 , 4 L.Ed.2d 584 (1960), and to prevent Indian unrest over encroachment by settlers on Indian lands.

Mohegan Tribe v. Connecticut,

638 F.2d 612, 621-22 (2d Cir.1980). The Act essentially requires federal consent of all land purchases from Indian nations and tribes.

The new preeminent role of the federal government in Indian affairs under the Constitution was highlighted by an exchange between President Washington and leaders of the Seneca Nation in 1790. On December 1, 1790, Seneca Chiefs Corn-planter, Half-Town and Great-Tree complained to President Washington about,

inter alia,

the fraudulent practices of certain land speculators who were trying to purchase Seneca land. On December 29, 1791, President Washington responded to the Senecas, stating:

*483

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.

4

American State Papers

142 (1832). Apparently referring to the Nonintercourse Act, President Washington then stated:

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.

Id.

P.

Geographical Error in the 1784 Treaty of Fort Stanwix

New York’s western boundary, as established by its cession to Congress in 1781 and Congress’s acceptance of that cession in 1782, is a “meridian line” running due south from the most westerly bent of Lake Ontario until it intersects the northern border of Pennsylvania, which lies a considerable distance south of Lake Chautauqua, New York.

21

See

19

Jour Continental Cong.

212 (Mar. 1, 1781);

see also

Manley,

supra,

at 111. When the western boundary of the Six Nations (insofar as it related to the lands in New York) was described in the 1784 Treaty of Fort Stanwix as running from the mouth of the Buffalo Creek on Lake Erie south to the northern border of Pennsylvania, it was thought that this line was coterminous with the western boundary of New York and that the land to the west of the line was part of the public domain of the United States. PG Br. at 29-30. However, when, in 1790, the western boundary of New York was finally surveyed, it was found to run considerably farther west than the Fort Stanwix line.

Id.

In fact, the Fort Stanwix line cut off from New York State all of Chautauqua County and parts of Erie and Cattaraugus Counties.

22

See

Manley,

supra,

at 111.

In the meantime, in 1788, the United States sold this area to Pennsylvania.

See generally,

PG Br. at 29-30. The agreement for the sale of the land placed the eastern boundary of the tract sold along the actual western boundary of New York State. However, both Pennsylvania and the United States thought it contained the larger area bounded in the east by the line described in the Treaty of Fort Stanwix. Pennsylvania, despite the fact that Indian claims to the area had already been extinguished at Fort Stanwix in 1784, agreed to satisfy Indian claims to the area by purchasing it from the Six Nations. Because several Seneca villages were located within the tract, the Pennsylvania commissioners agreed that the Senecas could reserve a portion of it for their residences and for

*484

hunting and fishing. This reserve was located east of Chautauqua Lake.

When the western boundary of New York was surveyed in 1790, it was then discovered that the village area reserved by Pennsylvania for the Senecas was not, in fact, in Pennsylvania, but was instead in New York. In other words, the agreement between Pennsylvania and the Six Nations supposedly reserved for the Senecas land lying west of the western boundary of New York and east of Chautauqua Lake, a geographical impossibility.

The situation created by this geographical error was the subject of dissatisfaction among the Senecas. PG Br. at 28. On January 10, 1791, Seneca Chiefs Cornplan-ter, Half-Town and . Great-Tree complained to President Washington, saying that the !

land which lies between' the line running south from lake Erie to the boundary of Pennsylvania as mentioned at the treaty of fort Stanwix, and the eastern boundary of the land which you [the United States] sold [to Pennsylvania], and the Senecas confirmed to Pennsylvania, is the land on which Half-Town and all his people live, with other chiefs, who always have been, and still are, dissatisfied with the treaty of fort Stanwix. They grew out of this land, and their fathers’ fathers grew out of it, and they cannot be persuaded to part with it. We therefore entreat you to restore to us this little piece.

4

American State Papers, supra,

at 143. President Washington replied:

Half-Town, and the others, who reside on the land you desire may be relinquished, have not been disturbed in their possession, and I should hope, while he and they continue to demean themselves peaceably, and to manifest their friendly dispositions to the people of the United States, that they will be suffered to remain where they are.

Id.

at 144.

Q.

Continued Seneca Dissatisfaction

The 1789 Treaty of Fort Harmer proved ineffective in soothing Seneca complaints regarding the Treaty of Fort Stanwix boundary line. In 1790-91, the Senecas complained to President Washington about what they perceived to be the unfairness of the Stanwix Treaty. On December 1, 1790. Seneca Chiefs Cornplanter, Half-Town and Great>-Tree stated to President Washington:

When our chiefs returned from the treaty at fort Stanwix, and laid before our council what had been done there, our nation was surprised to hear how great a country you had compelled them to give to you, without paying to us any thing [sic] for it. Every one [sic] said that your hearts were yet swelled with resentment against us for what had happened during the war, but that one day you would reconsider it with more kindness. We asked each other, What have we done to deserve such severe chastisement?

%

jfc ❖ H* ‡

[At Fort Stanwix] our chiefs had felt your power, and were unable to contend against you, and they therefore gave up that country. What they agreed to, has bound our nation, but your anger against us must, by this time, be cooled; ... we ask you to consider calmly, Were the terms dictated to us by your commissioners reasonable and just?

‡ ‡ ^ $ ÍJÍ

The French came among us, and built Niagara; they became our fathers, and took care of us. Sir William Johnston [sic] came and took that fort from the French; he became our father, and

*485

promised to take care of us, and did so, until you were too strong for his king. To Mm we gave four miles round Niagara as a place of trade. We have already said, how we came to join against you; we saw that we were wrong; we wished for peace; you demanded a great country to be given up to you; it was surrendered to you, as the price of peace, and we ought to have peace and possession of the little land which you then left us.

í¡5

%

#

%

[W]e must know from you whether you mean to leave us and our children any land to till. Speak plainly to us concerning this great business. All the lands we have been speaking of belonged to the Six Nations; no part ever belonged to the King of England, and he could not give it to you. The land we live on, our fathers received from God, and they transmitted to us, for our children, and we cannot part with it.

Id.

at 140-42.

President Washington responded on December 29, 1790, promising to protect the Senecas from unscrupulous land speculators.

Id.

at 142-43. He did not, however, address the Senecas’ complaints regarding the Treaty of Fort Stanwix.

On January 10, 1791, the Senecas again voiced their complaints about the Stanwix Treaty to President Washington:

You say that you have spoken plainly on the great point. That you will protect us in the land secured to us. at fort Stanwix ... This is very good. But our nation complain [sic] that you compelled us at that treaty to give up too much of our lands. We confess that our nation is bound by what was done there; and acknowledging your power, we have now appealed to yourselves against that treaty, as made while youuwere too angry at us, and, therefore, unreasonable and unjust. To this you have not given us an answer. ;

Father: That treaty was not made with a single State, it was with the thirteen States. We never would have given all that land to one State. We know it was before you had the great authority, and as you have more wisdom than the commissioners who forced us into that treaty, we expect that you have also more regard to justice, and will now, at our request, consider that treaty, and restore us part of that land.

❖ ‡ sfc # JjJ

Father: We see that you ought to have the path at the carrying place from lake Erie to Niagara, as it was marked down at fort Stanwix, and we are all willing it should remain to be yours ... Our nation will rejoice to see an open path for you and your children ... [b]ut let us also pass along the same way, and continue to take fish of those waters in common with you.

Id.

at 143.

President Washington replied on January 19,1791, as follows:

You say your nation complain [sic] that, at the treaty of fort Stanwix, you were compelled to give up too much of your lands; that you confess your nation is bound by what was there done, and acknowledging the power of the United States; and that you have now appealed to ourselves against that treaty, as made while we were angry against- you, and that the said treaty was, therefore, unreasonable and unjust.

But, while you complain of the treaty of fort Stanwix, in 1784, you seem entirely to forget that you yourselves, the Corn-plante, Half-Town, and Great-Tree, with others of your nation, confirmed by the treaty of fort Harmer, upon the Muskingum, so late as the ninth of Janu

*486

ary, 1789, the boundary marked out at the treaty of fort Stanwix, and that, in consideration thereof, you then received goods to a considerable amount.

Although it is my sincere desire, in looking forward, to endeavor to promote your happiness, by all just and humane arrangements, yet I cannot disannul treaties formed by the United States, before my administration, especially, as the boundaries mentioned therein have been twice confirmed by yourselves. The lines fixed at fort Stanwix and fort Harmer, must, therefore, remain established.

Id.

at 144.

R.

The 1794 Treaty of Canandaigua

Hostilities between the United States and the western Indians (Indian tribes located west of Pennsylvania and New York in the old Northwest Territory) continued intermittently after the Revolutionary War. PG Br. at 25. These Indians were aided by British agents who wished to establish an “Indian barrier state” between Canada and the United States and to prevent the Indians from making peace with or territorial cessions to the United States.

Id.;

Manley,

supra,

at 17. These conflicts with the western Indians threatened to prevent or delay the United States from settling the new national domain obtained through the Treaties of Fort Stan-wix and Fort Harmer.

After unsuccessful military campaigns against the western Indians, the United States decided to try treating with them. Initial efforts to treat in 1791-92, however, proved unsuccessful, as the Indians demanded return of territory ceded at previous treaties.

In February 1793, the United States made plans to treat again.

See

25

Papers of Thomas Jefferson

220-21 (John Catan-zariti ed.1992). Secretary of War Henry Knox provided President Washington with proposed instructions to the treaty commissioners that would have allowed the commissioners to recede from the boundaries drawn at previous treaties if peace could not be otherwise established. President Washington forwarded the proposed instructions to his cabinet and asked them for their advice “as to the propriety of instructing the Commissioners to recede from the present boundary, provided peace cannot be established with the Indians upon other terms.”

Id.

at 220. The four members of the cabinet replied as follows:

The Secretary of Treasury [Hamilton], Secretary at war [Knox] and Attorney general [Randolph] are of the opinion that the Executive and Senate have such authority,

provided that no grants to individuals nor reservations to states be thereby infringed.

The Secretary

of

state [Jefferson] is of the opinion they have no such authority to relinquish.

Id.

at 258-59 (emphasis added). Attempts to reach a peaceful resolution ultimately failed and the United States prepared for renewed military action against the western Indians. Cohen,

supra,

at 74.

During this time, the Six Nations remained peaceful, but in 1794 rumors began to circulate that they, or at least the Senecas, might join the western Indians and take up arms against the United States. PG Br. at 25; Cohen,

supra,

at 73. After a preliminary meeting with the Six Nations near Buffalo Creek, it was decided to hold a treaty with them “for the purpose of amicably removing all causes of misunderstanding and establishing permanent peace and friendship between the United States and the Six Nations.” PG Br. at 26 (internal quotations and citation omitted). The treaty was scheduled to be held at Canan-daigua, New York; in the fall of 1794. In the meantime, on August 20, 1794, federal

*487

troops defeated the western Indians at the Battle of Fallen Timbers.

The United States was represented at the Canandaigua treaty by treaty commissioner Colonel Timothy Pickering. Pickering was one of the treaty commissioners who unsuccessfully tried to negotiate a peace treaty with the western Indians in 1793. William N. Fenton,

The Great Law and the Longhouse: A Political History of the Iroquois Confederacy

627 (1998). Although the Six Nations were nominally the other party-in-interest to the treaty, the real party-in-interest was the Seneca Nation.

See

Jack Campisi & William A. Star-na.

On the Road to Canandaigua: The Treaty of 1794,

19 Am. Indian Quarterly 467, 486 (1995). It was the Senecas who lost the most land as a result of the 1784 Treaty of Fort Stanwix, and it was the Senecas who were most likely to join the western Indians against the United States. The Senecas were represented at the treaty primarily by the Seneca leader Red Jacket.

The purposes of the 1794 Treaty of Can-andaigua were: (1) to reconfirm peace and friendship between the United States and the Six Nations (the Senecas in particular); (2) to correct the inadvertent geographical error in the boundaries allotted to the Indians at the 1784 Treaty of Fort Stan-wix; and (3) to relinquish any rights the United States may have acquired through that error.

See Seneca Nation of Indians v. United States,

173 Ct.Cl. 917 , 922 n. 5 (1965);

see also Seneca Nation of Indians v. United States,

slip op. No. 342-H, at *4 (I.C.C. Aug. 30, 1963); Manley,

supra,

at 112; PG Br. at 28-30; Joint Stip. at ¶ 84.

During the negotiations, the Senecas demanded the return of the southern Niagara strip, to which they released all claims in the .1784 Treaty of Fort Stanwix. In 1794, the Niagara River and the land along the River were of great strategic importance to the fledgling federal government. Joint Stip. at ¶ 89. Realizing this, Pickering tried to convince the Senecas to drop their demand. He offered to pay the Senecas for the strip, but they refused and persisted in their demand for its return. Seneca leader Red Jacket stated:

Brother, — We told you before of the two rusty places on the chain, which were also pointed out by the- sachems. Instead of complying with our request, respecting the places where we told you the chain was rusty, you offered to relinquish the land on lake Erie, eastward of the triangular piece sold by Congress to Pennsylvania, and to retain the four-mile path between Cayuga and Buffalo Creek, by which you expect to brighten the chain.

23

Brother, — We thought you had a sharp file to take off the rust, but we believe it must have been dull, or else you let it slip out of your hands. With respect to the four-mile path, we are in want of it on account of the fisheries. Although we are but children we are sharp-sighted, and we see that you want that strip of land for a road, that when you have vessels on the lakes you may have har-bours [sic], & c. But we wish, that in respect to that land, the treaty at Fort Stanwix may be broken.

Jonathon Evans, comp.,

A Journal of William Savery

84 (1844) (footnote added); Joint Stip. at ¶ 86.

Pickering replied:

If I understand you right, your minds are easy excepting with regard to the strip of land between the two lakes.

*488

You say, if we relinquish the four-mile path from Cayuga to Buffalo Creek, a lasting peace will take place. The other day I gave you strong reasons why we could not give it up. I told you, if I could not rub out the rusty spots, I would cover them over, and I told you how I would cover this, (alluding to the money offered as an equivalent.) You seem to be sensible that the United States stand in need of a passage from lake to lake, by land. I therefore conclude, you would have no objection, if the land remains yours, to our cutting a road, and if we do so, it will be very inconvenient, unless we can have taverns to accommodate travellers [sic], as the distance is great. You know they [the British] have a road and accommodations on the opposite side of the river, and as there can be no communication between the lakes unless we have that privilege, the United States will have the same necessity for a road on this side.

******

When I came from Philadelphia, it was not expected that I would rehnquish a hand’s breadth of land; but finding your villages on the part which I have offered to cede back, I freely give it up. I am growing impatient to conclude the business, and would be glad to know, whether you will give me an answer, or take some time longer to consider of it.

24

Evans,

supra,

at 85-86 (footnote added).

Red Jacket replied:

[I]f we consent to your proposals, we know it will injure us. If these houses should be built, they will tend to scatter us and make us fall in the streets (meaning, by drinking to excess) instead of benefitting us; you want land, to raise provisions, hay, etc.; but as soon as the white people settle there, they would think the land theirs, for this is the way of the white people.... [T]he Great Spirit has made a road for you, you can pass and repass by water; what you want to reserve, is entirely in your own favour [sic].

***** *

[I]t is but a very small thing that keeps the chain from being brightened; if you will consent to give up this small piece and have no houses on it, the chain will be made bright. As to harbours, the waters are between you and the British, you must talk to them, you are of the same colour [sic].

Id.

at 87-88; Joint Stip. at ¶ 88.

At some point, Pickering asked if the Senecas would give up three or four mile-square tracts on the river bank to be used as “convenient stages” in return for $500 annually. Letter, Timothy Pickering to Secretary of War Henry Knox (Nov. 12, 1794).

Pickering Papers, supra,

at 60:207-09; Joint Stip. at ¶ 87. They refused. Eventually, Pickering gave up and agreed, as part of the treaty, to include the southern Niagara strip within the boundaries of the Seneca Nation. The Senecas did agree, however, to allow the United States to construct a road from Fort Schlosser to Buffalo Creek.

The Treaty of Canandaigua was executed on November 11, 1794. Treaty of Can-andaigua, Nov. 11,1794, 7 Stat. 44 . It was

*489

drafted by Pickering. Article II of the Treaty provides:

The United States acknowledge the lands reserved to the Oneida, Onondaga and Cayuga Nations, in their respective treaties with the state of New York, and called their reservations, to be their property; and the United States will never claim the same, nor disturb them or either of the Six Nations, nor their Indian Mends residing thereon and united with them, in the free use and enjoyment thereof: but the said reservation shall remain theirs, until they chose to sell the same to the people of the United States, who have the right to purchase.

See

Joint Stip. at ¶ 90.

Article III of the 1794 Treaty provides: The land of the Seneka nation is bounded as follows: Beginning on Lake Ontario, at the north-west corner of the land they sold to Oliver Phelps, the line runs westerly along the lake, as far as 0-yong-wong-yeh Creek, at Johnson’s Landing-place, about four miles eastward from the fort of Niagara; then southerly up that creek to its main fork, then straight to the main fork of Sted-man’s creek, which empties into the river Niagara, above fort Schlosser, and then onward, from that fork, continuing the same straight course, to that river; (this line, from the mouth of O-yong-wong-yeh Creek to the river Niagara, above fort Schlosser, being the eastern boundary of a strip of land, extending from the same line to Niagara river, which the Seneka nation ceded to the King of Great-Britain, at a treaty held about thirty years ago, with Sir William Johnson;)

25

then the line runs along the river Niagara to Lake Erie; then along Lake Erie to the north-east corner of a triangular piece of land which the United States conveyed to the state of Pennsylvania, as by .the President’s patent, dated the third day of March, 1792; then due south to the northern boundary of that state; then due east to the southwest corner of the land sold by the Seneka nation to Oliver Phelps; and then north and northerly, along Phelp’s line, to the place of beginning on Lake Ontario. 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.

See Id.

at ¶ 91 (footnote added);

see also

Appendices L and M.

Article IV of the Treaty provides:

The United States having thus described and acknowledged what lands belong to the Oneidas, Onondagas, Cayugas and Senekas, and engaged never to claim the same, nor to disturb them, or any of the Six Nations, or their.Indian friends residing thereon and united with them, in the free use and enjoyment thereof: Now, the Six Nations, and each of them, hereby engage that they will never claim any other lands within the boundaries of the United States; nor ever disturb the people of the United States in the free use and enjoyment thereof.

See

Joint Stip. at ¶ 92.

Article V of the Treaty provides:

The Seneka nation, all others of the Six Nations concurring, cede to the United States the right of making a wagon road

*490

from Fort Schlosser to Lake Erie, as far south as Buffaloe [sic] Creek; and the people of the United States shall have the free and undisturbed use of this road, for the purposes of travelling [sic] and transportation. And the Six Nations, and each of them, will forever allow to the people of the United States, a free passage through their lands, and the free use of the harbours and rivers adjoining and within their respective tracts of land, for the passing and securing of vessels and boats, and liberty to land their cargoes where necessary for their safety.

See Id.

at ¶ 93 .

On November 12,1794, the day after the Treaty was executed, Pickering transmitted the final Treaty to Secretary of War Henry Knox, with the following explanation of its terms:

I have the pleasure to inform you that yesterday Peace and Friendship with the Six nations were established; I hope for perpetuity; and on terms which may prove acceptable to the President and Senate. A copy is inclosed.

The fear of offending the British on one hand, and the Western Indians on the other, induced the Chiefs to persist in their opposition to an explicit

cession

of land; tho’ finally they said they were willing to declare that they would never claim any of the land which we were solicitous to have relinquished. On this ground the treaty has assumed its present form. I had previously moulded [sic] it into various shapes: but no one gave them satisfaction.

You will see the great object is obtained: an express renunciation which takes in all the lands in Pennsylvania, including the Triangle which comprehends Pres-qu’lsle; and a pointed declaration that they will never obstruct the people of the U. States in the free use and enjoyment of them or any other lands not contained within the present described boundaries of the lands of the Six Nations. These boundaries, as they respect the Senekas’ country, differ from those agreed on at Fort Stanwix: Yet not a foot of land has been given up which by the cession then made the U. States had a right to hold: all that I have relinquished falling within the preemption right of Massachusetts, and lying within the State of New York. The tract extending from the eastern end of the Triangle to a line running due south from the mouth of Buffaloe [sic] Creek to the Pennsylvania line, is as important to the Senekas as any part of their country. They have settlements upon it which contain nearly as many people as the whole Oneida nation.

The strip four miles wide along the Strait of Niagara, I strove to secure in such manner that altho’ the United States could not take possession, by virtue of former treaties, they might transfer the Indian Title to those who have the pre-emption right: but it was in vain. They were extremely tenacious of this tract. When they desired me to add 500 dollars to the proposed annuity (to make it 5000) I asked them, as a consideration to cede only four small pieces of a mile square each, between Fort Schlosser and Lake Erie, for a Landing place on the Lake, and convenient stages between that and Fort Schlosser, but they chose rather to relinquish the annuity of 500 dollars. In this they were influenced by their fears of offending the British; and not by the particular value of the land, even of the whole strip. I therefore gave it up; knowing that as soon as we should possess Niagara, it would be ceded of course. This has since been declared to me by a very sensible and influential

*491

war chief: “As soon (said he) as you get Niagara, that strip will be yours.”

But tho’ I have relinquished what title the U. States acquired to this strip, by the treaty of Fort Stanwix, I have secured the important part of it which extends from the Fort of Niagara to Fort Schlosser, comprehending the Carrying-Place: and this in full, right: if by the treaty of peace with Britain the United States became entitled to the land which belonged to the Crown. As soon as I mentioned this old cession to the King, the Seneka Chiefs acknowledged it; and immediately produced an old man who was present at running the line as I have described it. The original treaty being in possession of the British, and not attainable, I thought it of some consequence to get an explicit acknowledgment of it from the Six Nations.

Letter, Timothy Pickering to Secretary of War Henry Knox (Nov. 12, 1794).

Pickering Papers, supra,

at 60:207-09 (emphasis in original); Joint Stip. at ¶ 96.

In a November 20, 1794 letter to Mohawk Chief Joseph Brant, Pickering discussed his relinquishment of title to the southern Niagara strip:

I have also relinquished the United States claim to the strip of land four miles wide, including the carrying path, from Lake Ontario to Lake Erie, along the Niagara Strait, except that part of it which, in a treaty held thirty years ago, with Sir William Johnson, the Seneka Nation deeded to the King of Great Britain, to whose right therein I considered the United States as succeeding. Or, as the Chiefs expressed it, that piece became our [sic] (the United States) by the right of War: Its eastern boundary is a line from Johnson’s Landing to Stedman’s Creek, and thence to Niagara Strait, and the Strait itself bounds it on the west and southwest.

Letter, Timothy Pickering to Joseph Brant (Nov. 20, 1794). ;

Henry O’Reilly Papers

10:48 (New York Historical Society).

In a subsequent letter to Secretary Knox dated December 26, 1794, Pickering wrote:

I was proceeding to complete my journal of the negotiations with the Six Nations at the treaty lately held at Kanondaigua. But in consequence of your request this morning that I would first state my reasons for relinquishing what title the U. States might'have acquired to certain , lands in the country of the Six Nations which were ceded by the treaty of Fort Stanwix, I now lay before you the principles and motives of that measure, just observing that all the lands in question originally belonged to the Senekas.

1. I knew that the U. States had no right to any part of the Seneka Country but by virtue of the cession made by the States of New York and Massachusetts which Congress had accepted.

2. I knew that the line of cession, when ascertained by Mr. Ellicot [sic], was what now constitutes the eastern boundary of the triangular piece of land which the U. States sold to Pennsylvania.

3. I knew that by the agreement between the two States, New York and Massachusetts, the pre-emption rights to all the land in question belonged to Massachusetts, excepting a strip a mile wide, along the Strait of Niagara, which I understood New York was to retain: and that the whole lay within the jurisdiction of New York.

4. I knew that by the Constitution of the State of New York, no purchase or contract for the sale of lands made of or with the Indians within the limits of that State, could be

binding on the Indians,

or deemed valid, unless made under the authority, and with the consent of the legislature of that State. And from the

*492

nature of the case, I knew that such -authority and consent could never have been given, in regard to the lands in question, when in the terms of the treaty of Fort Stanwix, they were ceded to the United States.

5. I knew therefore that the United States had no right to the lands which I relinquished. In truth, when I proposed to give up the tract between the Pennsylvania Triangle and the Meridian of the mouth of Buffalo Creek, I felt myself embarrassed' — -not in making the relinquishment itself but for words to express it which should not be deceptive, by presenting an idea of something

very valuable,

while in fact the subject of the relinquishment was.

a shadow.

The words used in my speech were these: “All this tract you, by former treaties ceded to the United States: but I am now willing to relinquish

all their claim toit[”]

6. I knew the practical construction of the New York Constitution on this point. John Livingston and others obtained from the Six Nations a vast cession of land within that State, which had been made void, because done without the Consent of the Legislature. And I considered that the United States had no better right than individuals to receive from the Indians a cession of the same lands.

7. It is true, that I strenuously endeavored to obtain the strip of land four miles wide, along the Strait of Niagara, etc; and I also inserted an article to comprehend land round the Fort of Oswego to the extent of six miles square — because the same had been comprehended in the treaty of Fort Stanwix: but not seeing how the

United States

exclusively could hold these lands I had draughted [sic] another article, in these words, “All the cessions and relin-quishments of the rights and claims of the Six Nations and each of them hereby made, shall be for the benefit of the United States and any of them, and of any citizen or citizens thereof, to whom, according to their laws and usages, the right of taking and holding the Same, does or shall belong.” The form which the treaty finally assumed, superseded this provision.

8.The objects of my conference with the Six Nations were to remove from their minds all causes of complaint and to establish a firm and 'permanent friendship.

The great cause of complaint, from all the Indian Nations, it is too well known, has been the depriving them of their lands, by means not always honorable, [too often] fraudulent and sometimes to an unreasonable extent.

The Six Nations, particularly the Sene-kas, have frequently complained of the treaty of Fort Stanwix. Their complaints of that and of the subsequent treaties on the Ohio, were renewed at the late conference.

^ ‡ ❖ H* #

These observations, with those contained in my letter of November 12th, will, I trust, abundantly justify the relinquishment of the title of the United States,

if they had any,

to the tract of land which lies between the meridian of the mouth of Buffalo Creek and the western boundary of the State of New York. I might have added, that General Chapin, a judicious man, and well acquainted with the situation, temper and necessities of the Seneka nation was decidedly of opinion that this tract should be relinquished, without the least hesitation and thought I insisted too strongly by retaining the strip of land four miles wide along the strait of Niagara from Buffalo Creek down to Stedman’s Creek. I indeed

*493

strove to retain it, by every argument and persuasion I could think of: For I knew the land was little necessary for them, for Indians say they had very few, perhaps three or four, families living upon it; but I did not then know how seriously the fear of offending the British affected their minds. How extremely tenacious they were of this strip will appear from the following fact:

Having offered them an annuity of 4500 dollars, and to enable them to conceive justly of that sum, as many strokes being made as it contained hundreds, in the form of four rows of ten strokes, and one of five — they desired, as their last request, that I would add five more strokes, to make all the rows even, and thus fix the annuity at 5000 dollars. Having a pencil in my hand, I marked down the other five strokes, and said, “Tis done: But I have now, in return, one request to make of you. Desirous of forming such a treaty with you as would remove every just complaint; and that you might leave this Council Fire with minds perfectly satisfied, I have been granting you things of very great importance to your interest and welfare. On the other hand, I have represented to you the importance to the people of the United States of the whole strip of land from Buffaloe [sic] Creek to Stedman’s Creek: tho’ when I found you very averse to yielding it, I gave it up; and asked for three or four tracts only each of one mile square at such places in that strip as the convenience of our people might require: but these also you denied me. Now to show you how desirous I am to please you, I will add to the proposed annuity the five hundred dollars you request, provided you will grant me only those three or four small pieces of a mile square each.” They answered, “No. You must rub out the five last strokes.”

The Indians readily admitted my claim to the strip of land from Stedman’s Creek to Lake Ontario which includes the Carrying Place at the Great Falls of Niagara, and nearly half the land on the strait which was comprehended in the treaty of Fort Stanwix, acknowledging it to be ours by the Right of War, as they had formerly ceded the same to the King of Great Britain. That they had made this cession, I first learned in conversations with Col. Butler, last year, in Canada. Since then, by accident, I found the treaty itself by which the cession was made. A copy of it is herewith presented. As soon as I had explained this transaction, the Senekas brought forward one of their elderly men who was present at running the line from the Creek at Johnson’s Landing place on Lake Ontario to Niagara River above Fort Schlosser. The description of this line described in the Treaty is founded on his information.

26

Letter, Timothy Pickering to Secretary of War Henry Knox (Dec. 26, 1794).

Pickering Papers, supra,

at 60:192-97 (emphasis in original) (footnote added); Joint Stip. at ¶ 97.

The United States Senate ratified the Treaty of Canandaigua on January 9,1795, and the President of the United States proclaimed the Treaty on January 21, 1795. Joint Stip. at ¶ 95.

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S.

New York Advised that Federal Approval Required for Purchase of Indian Land

In 1795, Timothy Pickering, who had become Secretary of War almost immediately after the Treaty of Canandaigua, was informed that the State of New York was attempting to purchase land from the Oneidas, Cayugas and Onondagas. He inquired of the United States Attorney General, William Bradford, whether New York had a right to purchase lands lying within the State from the Six Nations without the intervention of the federal government. On June 16,1795, Bradford responded that title to the Six Nations’ land could be extinguished only by a treaty held under authority of the United States.

See

Opinion, Attorney General William Bradford with Letter of Transmittal to Secretary of War (Jun. 16, 1795).

Henry O’Reilly Papers, supra,

at 11. Pickering forwarded a copy of the Attorney General’s opinion to Israel Chapin, Jr., Superintendent of the Affairs of the Six Nations, and ordered him not to aid New York in any purchases of Indian land.

Id.

Pickering also forwarded a copy of the Attorney General’s opinion to New York Governor George Clinton.

Id.;

Joint Stip. at ¶ 98.

T.

New York’s 1802 Purchase of One-Mile-Wide Strip

On July 10,1801, Secretary of War Henry Dearborn wrote to the Holland Land Company’s chief surveyor, Joseph Elli-cott,

27

seeking clarification of the Senecas’ boundary as a result of the Treaty of Canandaigua. Dearborn wrote:

Sir it being a matter of great importance to ascertain correctly the course of the line according to treaty, between lakes Erie and Ontario, presuming that you are fully acquainted therewith. I request that you will be so obliging as to favor me as soon as possible with the information that you may possess on the subject, and especially whether Black Rock be within our line or not.

Joint Stip. at ¶ 99. Dearborn was planning on erecting a new fort at Black Rock, New York, a site located on the Niagara River in present-day Buffalo, New York, a short distance north of Lake Erie.

See

Appendices A and C.

Ellicott answered Dearborn’s inquiry on August 27, 1801, enclosing a map (which is not known to have survived).

See

Joint Stip. at ¶ 100. Ellicott’s letter stated the following:

[Yjou will find inclosed “A Map or Military Prospective of Niagara River and the Lands adjoining thereon,” comprehending Part of that Tract of Country between the Lakes Ontario and Erie laid down from a correct survey, exhibiting that Part of the Boundary “Line between the United States and the Seneca Nation of Indians,” extending from Johnston’s Landing on Lake Ontario to the Niagara River, and bounding on said River to the Shore of Lake Erie, as confirmed and more particularly explained by the Treaty held at Konon-daigua on the 11th Day of November 1794; likewise the Boundary Line of the Lands reserved to the State of New York [by the Hartford Compact] along said River’ also showing the precise and local Situation of Black Rock, the principal object of your Inquiry ....

The inclosed Map shows what part of the Lands contained in the New York Reservation has been ceded by the Seneca Nation of Indians to the King of

*495

Great Britain, and by him relinquished by Treaty to the United States, and what Part of said Reservation the Seneca Nation of Indians yet retain. And as the Part retained included Black Rock it follows of course that the Scite [sic] intended by the Commander in Chief for the Erection of a Fortification (and probably the most eligible on the River) is yet the Property of the Seneca Nation of Indians.

Letter, Joseph Ellicott to Secretary of War Henry Dearborn (Aug. 27, 1801). 26

Publications of the Buffalo Historical Society

140 (1922); Joint Stip. at ¶ 100. Elli-cott’s letter made no mention of the Niagara Islands.

On March 19, 1802, in order to facilitate the United States’ plan to build a fort at Black Rock, the New York State legislature authorized Governor George Clinton to purchase from the Seneca Nation a strip of land “[a]t the east end of Lake Erie one mile wide on Niagara River from Buffalo Creek to Stedman’s farm

28

...”

29

Act of March 19, 1802, ch. XLVII, 1802 N.Y. Laws 73 -75, 170 (footnote added); Joint Stip. at ¶ 102;

see also

Hauptman,

supra,

23 Okla. City Univ. L.Rev. at 159. The statute authorizing the purchase made no mention of the Niagara Islands.

In August 1802, Governor Clinton treated with the Senecas at Albany. On August 19,1802, Red Jacket, the Seneca leader, stated:

We propose to sell you the whole tract, with the reservation however of all of the Islands [in the Niagara River]; the line to run at the edge of the water, but the use of the .river to be free to you-We wish to reserve also the privilege of using the beach to encamp on, and wood to make fires, together with uninterrupted use of the niver for the purpose of fishing ...

40

N.Y. Assembly Papers

398; Hauptman,

supra,

23 Okla. City Univ. L.Rev. at 159.

The next day, August 20, 1802, New York concluded a land transaction with the Senecas. A federal commissioner was present at the agreement.

N.Y. State Assembly Doc. No. 51

(“Whipple Report”) 214 (1889); Hauptman,

supra,

23 Okla. City Univ. L.Rev. at 159. The agreement stated that the Senecas “do sell, cede, release and quit-claim to the People of the State of New York, all that tract of land one mile wide on the Niagara River, extending from Buffalo to Stedman’s Farm, including Black Rock, and bounded Westward by the shore or waters of said river.” Whipple Report,

supra,

at 214-15;

see also

Appendix O. The agreement made no mention of the Niagara Islands. The agreement was approved by the United States Senate on December 30, 1802. 1

Journal of the Executive Proceedings of the Senate

427-28 (1828).

By 1805, the area ceded in 1802 was surveyed and laid out in lots. The Niagara Islands were not included in that survey. Joint Stip. at ¶ 103.

U.

New York’s 1815 “Purchase” of the Niagara Islands

In a December 10, 1810 letter to the United States Secretary of State, New York Governor Daniel D. Tompkins ex

*496

pressed his concern about the ambiguity of the United States-British Canada boundary under the 1783 Treaty of Paris, as it related to the Niagara River Islands. Daniel D. Tompkins, 2

Public Papers of Daniel D. Tompkins

303-05 (1902). On December 22, 1810, Governor Tompkins wrote a letter to Congressman Peter B. Porter, Chairman of the House Foreign Relations Committee, further reflecting this concern.

Id.

at 305-06. Governor Tompkins, anticipating a possible new war with Great Britain, discussed the strategic and economic importance of the Niagara Islands to both New York and the United States.

On March 8, 1811, the New York State Legislature authorized Governor Tompkins to purchase the islands in the Niagara River from the Senecas. Act of March 8, 1811, ch. XXXVII, 1811 N.Y. Laws 50 -51; Joint Stip. at ¶ 105. On April 11, 1811, Governor Tompkins wrote to Jasper Parish, a sub-agent to the Six Nations, attempting to facilitate negotiations for the purchase. Tompkins,

supra,

at 339-40. In his letter, Governor Tompkins recognized the unsettled nature of the United States-British Canada border:

The Treaty between this Country and Great Britain establishes the territorial line to be along the middle of the water communication between Lakes Ontario and Erie. Whether these words establish as the limit of Jurisdiction, a channel of the Niagara River or a line equidistant at all places from the two shores, may become a question of litigation or for negotiation between the two governments. It will, therefore, be necessary to provide in any treaty to be made, that upon a final settlement for demarcation of that line, by commissioners or otherwise, the Islands to be purchased, or any part of them, shall fall within British Jurisdiction, our payments shall cease, and the treaty from thenceforth be void.

Id.

at 340.

On February 12, 1812, Governor Tompkins wrote to Thomas Grosvenor, Chairman of the New York State Assembly’s Committee on Indian Affairs, to, advise that he had postponed negotiations for the purchase of the Islands due to the then precarious relations with British Canada. Governor Tompkins wrote:

The authority to treat with the Seneca Nation of Indians, for the purchase of the Islands in the Niagara River, was predicated upon a previous suggestion from some of the Chiefs, of willingness to dispose of those Islands. In May I rec’d. a notification, that they had changed their minds & were disinclined to negotiate upon that subject during the last year. In the course of a journey to the westward, however, I had an interview with a deputation of chiefs and warriors of that Nation which produced no change of the determination of which I had been notified in May. I took that opportunity of explaining to them the nature and slenderness of their title by shewing [sic] them that by Mr. Pickering’s Treaty held at Canandaigua in November 1794, the lands which they reserved were specifically described by metes and bounds, which metes and bounds excluded the aforesaid Islands, and that as by that treaty they expressly released every pretention [sic] and claim to any lands without the boundaries of their Reservation, the said Islands did now in strictness belong to the State of New York. The supposed right of Sir John Johnson [son of Sir William Johnson] to those Islands was noticed, and the consequent title of the State to them without a purchase from the Indians explained. If Sir William Johnson ever had a valid title for those Islands from

*497

the Indians, it descended upon his death to Sir John Johnson, upon whose attainder it vested in the people of this State. It was suggested to the Senecas, that the State would nevertheless manifest its friendship and liberality towards them by purchasing and paying for that which by rigid Rules might be recovered without consideration. It was barely urged by me that the preceding circumstances ought to have great weight upon their minds in deciding upon the price of the land contained in those Islands.

I have no doubt the precarious State of our relations with Canada alone, induced the Senecas to defer any negotiation relative to the sale of the Islands in the Niagara River to some period at which a treaty might be held by them on that subject without exciting the jealousy and suspicion of the Canadian Government.

Tompkins,

supra,

at 480-81; Joint Stip. at ¶ 106.

30

The Seneca initially remained neutral during the War of 1812. However, late in the summer of 1812, British forces were rumored to have invaded Grand Island. The Senecas, believing they owned Grand Island, abandoned their neutrality and allied themselves with the United States to protect their interests. Red Jacket consulted with Erastus Granger, the United States Indian agent for the Six Nations, and stated:

Brother-You have told us that we had nothing to do with the war that has taken place between you and the British: but we find that the war has come to our doors. Our property is taken possession of by the British and their Indian friends. It is necessary for us now to take up the business, defend our property and drive the enemy from it. If we sit still upon our seats, and take no measures of redress, the British (according to the customs of you, white people) would hold it by conquest — and should you conquer the Canadas [sic], you will claim it upon the same principles, as conquered from the British. We, therefore, request permission to go with our warriors and drive out those bad people, and take possession of our lands.

Buffalo Gazette, Aug. 4, 1812;

see also

William Ketchum, 2

History of Buffalo

272-73 (1865). As it turned out, the rumor of a British invasion of Grand Island proved false.

The Treaty of Ghent, executed on December 24, 1814, concluded the War of 1812. Treaty of Ghent, Dec. 24, 1814, 8 Stat. 218 . The Treaty provided for several boundary commissions to determine the precise boundary between Canada and the United States as set forth in the 1783 Treaty of Paris. Joint Stip. at ¶ 107. Article VI of the Treaty of Ghent provided for a boundary commission to determine the location of the boundary in the Niagara River basin.

After the War of 1812, New York once again sought to purchase the Niagara Islands from the Senecas. On July 10,1815, Governor Tompkins wrote to -Jasper Parish the following:'

Geni. Porter infórms me that you think the present a favourable [sic] time to effect a purchase from the Seneca Indians (which the Legislature have authorized me to make) of the Islands in the Niagara River.

Although it is questionable whether these Indians have any title to the lands, yet I am willing (with a view to avoid any collisions, and to perpetuate the good understanding which at present exists between them & the government) to

*498

pay Twelve thousand dollars for the relinquishment of their right to all the Islands — This sum is however to cover all the incidental expenses attending the purchase.

ICC Br. at 63; Defs. Ex. 39.

On September 12, 1815, the State of New York and the Seneca Nation entered into an agreement by which the Senecas agreed to “sell, grant, convey and confirm to the people of the State of New York, all the islands in the Niagara river between Lake Erie and Lake Ontario and within the jurisdiction of the United States.” Whipple Report,

supra,

at 211-12; Joint Stip. at ¶ 108. In consideration, New York paid $1,000 and a perpetual annuity of $500. There was no federal commissioner present at the 1815 transaction. Joint Stip. at ¶ 109.-

When the State of New York purchased the Niagara Islands from the Senecas in 1815, the boundary commission appointed under Article VI of the Treaty of Ghent had not yet determined whether the Niagara Islands fell within the territory of the United States or Canada.

See

H. Perry Smith, 1

History of City of Buffalo and Erie County

427 (1884). Nevertheless, the State of New York proceeded to exercise jurisdiction over the Islands. Governor De Witt Clinton wrote the New York State Senate on March 11, 1819, that a number of non-Indian squatters had settled on Grand Island and refused to recognize the State’s authority over the Island. He stated that this situation arose “ ‘because the jurisdiction over the islands in that river has not been settled under the treaty of Ghent.’ ” Hauptman,

supra,

23 Okla. City Univ. L.Rev. at 172

(quoting 2 Messages from the Governors

995 (Charles Z. Lincoln ed.1909)). In response, on August 13, 1819, the State Legislature passed an act authorizing the removal of the squatters from Grand Island.

Id.;

Joint Stip. at ¶ 111. A group of State officers removed 150 non-Indian squatters from Grand Island on December 9, 1819. Joint Stip. at ¶111.

Although New York exercised jurisdiction over Grand Island after the 1815 conveyance, it refrained from authorizing any settlement thereon until the United States-Canada boundary was finally delineated. In an April 15, 1820 letter to Henry Livingston, the New York State Surveyor-General Simeon De Witt, wrote: “Nothing will probably be done with Grand Island in the Niagara River till the boundary line between us and the British is settled which may not be done in some years from this.”

See

Hauptman,

supra,

23 Okla. City Univ. L.Rev. at 172 n.68 (stating that letter is on file with the Historical Society of Tompkins County (Ithaca, New York)).

In 1822, the Boundary Commission finalized its report on the location of the Treaty of Paris boundary between the United States and Canada in the Niagara River basin. Joint Stip. at ¶ 112. The boundary through the Niagara River generally followed the main channel of the River to the west of Grand Island.

Id.

Thus, with the exception of Navy Island, all the Niagara Islands were determined to be within the boundaries of the United States.

See

Hauptman,

supra,

23 Okla. City Univ. L.Rev. at 171.

In 1824, the State of New York authorized a survey of Grand Island into lots.

Id.

at 172. The lots were sold at auction the following year.

Id.

V.

ICC Proceedings

In 1946, Congress passed the Indian Claims Commission Act (the “ICC Act”), which established the Indian Claims Commission or ICC to hear and resolve Indian claims against the federal government.

See

Act of Aug. 8, 1946, ch. 907, 60 Stat.

*499

939. The intent of Congress in passing the ICC Act was to settle once and for all the claims arising from the government’s historical dealings with the Indians. The ICC Act gave the ICC jurisdiction over five categories of claims: (1) claims in law or equity arising under the Constitution, laws, treaties of the United States, and Executive Orders of the President; (2) all other claims in law and equity, including those sounding in tort; (3) claims which would result if the treaties, contracts and agreements between the Indians and the United States were revised on the ground of fraud, duress, unconscionable consideration, mutual or unilateral mistake, whether of law or fact, and any other ground cognizable by a court of equity; (4) claims arising from a taking by the United States; and (5) claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity. ICC Act, Aug. 13, 1946, ch. 959, § 2, 60 Stat. 1049,1050 .

The ICC was authorized to hear only those tribal claims that had accrued prior to the enactment of the statute. § 12, 60 Stat. at 1052. Neither a statute of limitations nor the defense of laches was to apply to claims otherwise permissible under the ICC Act. § 2, 60 Stat. at 1050. The only redress available in the ICC proceedings was a monetary award. The United States Department of Justice represented the United States in these actions. The orders of the ICC were appeal-able to the Court of Claims.

Originally, the ICC was to exist for only ten years, but Congress repeatedly extended that time until the ICC’s term finally expired on September 30, 1978. Remaining cases were transferred to the Court of Claims.

The Plaintiff Tribes in this case, the SNI and the Tonawanda Band, brought claims against the United States before the ICC in the 1950’s, asserting that the United States had a fiduciary duty to protect their lands. In particular, the Plaintiff Tribes claimed that .the United States was liable under the ICC Act' for the 1802 conveyance of the one-mile-wide Niagara strip (ICC subdocket 343B), the 1815 conveyance of the Niagara Islands (ICC subdock-et 342C), and the cession of the northern Niagara strip (ICC subdocket 342D).

The United States opposed those claims, initially arguing that the United States had no fiduciary duty to the Plaintiff Tribes and, therefore, was not liable. The United States prevailed on this argument before the ICC.

Seneca Nation of Indians v. United States,

12 Ind. Cl. Comm. 780 (1963). The Court of Claims reversed this holding, however, ruling that the United States had a fiduciary duty to the Plaintiff Tribes pursuant to the Nonintercourse Act.

Seneca Nation of Indians,

173 Ct.Cl. at 917 .

On remand, the ICC adjudicated, among other claims, whether the Plaintiff Tribes owned the Niagara Islands and the bed of the Niagara River. Contrary to the position it takes in this case, the United States argued before the ICC that in 1815, when New York purported to purchase the Niagara Islands from the Senecas, the Seneca Nation had no property interest in the Islands. Specifically, the United States argued that any interest the Seneca Nation may have had in the Islands was extinguished on numerous occasions prior to 1815, including by the 1764 treaties of peace between Great Britain and the Seneca Nation, the 1784 Treaty of Fort Stan-wix, the 1789 Treaty of Fort Harmer, and the 1794 Treaty of Canandaigua. With respect to the sale of 1815, the United States argued:

Despite the fact that their interest in the subject lands had already been ceded, relinquished, and disclaimed many times

*500

by the Senecas, New York saw fit to enter into an additional purchase. This was for the Islands in the Niagara River. Here again, New York’s agreement to purchase was not based on the concept that the Senecas owned the islands but based on diplomatic justification.

ICC Br. at 61.

The United States concluded its argument as follows:

Even in the early period, [the Senecas’] claim to exclusive use and occupancy of the subject lands was very weak. Moreover, the Senecas were thereafter dispossessed of what little interest they might have had in the lands by France and Great Britain and they clearly had no title in the lands when the United States and the State of New York took over possession thereof. In the circumstances, ... the United States and the State of New York do not owe [the Senecas’] ancestors anything for the Niagara strip. Necessarily the payments as made were gratuitous and certainly cannot be equated with unconscionable consideration, a lack of fair and honorable dealings, or any other wrongdoing contemplated by the Indian Claims Commission Act.

Id.

at 65.

The ICC concluded that as a result of the treaties of cession of 1764 to Great Britain, the Senecas did not have a com-pensable interest in either the northern or southern Niagara strips or the Niagara Islands or the riverbed, as of the date of American sovereignty.

Seneca Nation of Indians v. United States,

20 Ind. Cl. Comm. 177 , 180, 208 (1968). In other words, the ICC agreed with the United States’ argument that the 1764 treaties of peace extinguished any aboriginal title to the Niagara region that the Senecas may have had. The ICC further stated that the Senecas’ cession of the northern strip, “that containing the portage around the Falls, was repeated in the treaties of 1784, 1789 and 1794 and of the southern strip in the treaties of 1784 and 1789.”

Id.

at 180 . The ICC then dismissed the Senecas’ claim regarding the northern Niagara strip. However, with respect to the southern Niagara strip, the Niagara Islands and the riverbed, the ICC stated as follows:

The 1794 [Treaty of Canandaigua] ... we hold to have the effect of a treaty of recognition, or grant of the U.S. interest in the southern strip and the islands. The whrds of the’treaty grant are clear and unequivocal, and it is not material that the Seneca no longer had aboriginal title to that tract.

Colonel Timothy Pickering, the United States negotiator for the 1794 treaty, wrote of his embarrassment in making the ost

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