# Seneca Nation of Indians v. New York

> District Court, W.D. New York · June 21, 2002 · 206 F. Supp. 2d 448

URL: https://www.frixlaw.com/law-library/cases/2433133

## Case

- **Full name:** The SENECA NATION OF INDIANS, Plaintiff, the Tonawanda Band of Seneca Indians, Plaintiff-Intervenor, United States of America, Plaintiff-Intervenor, v. the State of NEW YORK; George E. Pataki, Governor, State of New York; Bernadette Castro, Commissioner, Parks, Recreation and Historic Preservation; Dr. Ronald W. Coan, Director, Erie County Industrial Development Agency; John Cahill, Commissioner, New York Department of Environmental Conservation; Joseph Boardman, Commissioner, New York Department of Transportation; John R. Platt, Executive Director, New York State Thruway Authority; The New York State Thruway Authority; Erie County; Moore Business Forms Corp.; Inducon, Inc.; Rado-Mat Holdings, U.S., Inc.; Ilona H. Lang; Robert W. Weaver; And Francis B. Pritchard; Defendants
- **Court:** District Court, W.D. New York
- **Decided:** June 21, 2002
- **Citations:** 206 F. Supp. 2d 448; 2002 U.S. Dist. LEXIS 12062; 2002 WL 1371096
- **Precedential status:** Published
- **Opinion:** Opinion by Arcara
- **Judges:** Arcara
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2433133

## How later opinions describe it (automated extraction)

- discussing the distinction between aboriginal and treaty title
- discussing effect of undisputed extinguishment by treaty

## Opinion text

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
-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.
*494
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 ostensible relinquishment to the Indians of land of which he felt the United States did not have the power of disposition ... Fortunately, it is within the purpose of the Indian Claims Commission Act to cure any deception that might have been visited on the Indians. We find that the words of grant in the 1794 treaty are sufficient to create an equitable estoppel against the United States to deny that these were then Indian lands in which the Seneca had a compensable interest equivalent to a recognized title. Any subsequent disposition of the lands by the Seneca would be under the protection of the Trade and Intercourse Act ...
******
The Seneca acquired the same interest in the islands adjacent to the southern strip as they did to the shore. The 1794 Treaty boundary description, “... to that river; ... then the line runs along the River Niagara to Lake Erie; then along Lake Erie ...,” by construction
*501
includes the adjacent islands so far as United States ownership went, or to the main channel of the river.... No showing of a contrary intent of the parties is made. The 1802 sale to New York, however, is clearly only of a one mile wide strip on the shore.
No portion of the riverbed adjacent to the southern strip can be said to have been granted by the 1794 Treaty. The rule is well established that there is a presumption against the sovereign’s alienation of title to the land under navigable waters....
s¡; >j: #
% %
In summary, the Commission holds that although the Seneca had no compensa-ble interest in the Niagara lands prior to 1794, the 1794 Treaty created a compen-sable interest in the Senecas to the southern strip and the islands. Under the fiduciary relationship required by the Trade and Intercourse Act the United States will owe compensation under our Act if the Seneca received less than a proper consideration for these lands in their sales to New York in 1802 and 1815.
Id.
at 181-85 (citations and footnote omitted).
V.
DISCUSSION
A.
Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where the pleadings and discovery material “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). The summary judgment rule permits a court “ ‘to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’ ”
Matsushita Elec. Indus., Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986)
(quoting
Fed. R.Civ.P. 56(e) advisory committee’s note).
Once the moving party has met its initial burden of demonstrating the absence of a genuine issue of material fact, the nonmov-ing party must set forth specific facts demonstrating a genuine issue in order to defeat the motion.
See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250, 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). Summary judgment is appropriate where the court must apply a legal standard to undisputed historical facts, notwithstanding the parties’ disagreement about the legal significance of those facts.
See
William W. Schwatóer,
Summary Judgment Under the Federal Rules: Defining Genuine Issue of Material Fact,
99 F.R.D. 465 , 472-73 (1984).
In a Nonintercourse Act case, the issue of liability under the Act can often be resolved on summary judgment, without an evidentiary hearing or trial, where the parties present a well-developed record and the historical facts are not disputed.
See, e.g., Tonkawa Tribe of Okla. v. Richards, 15
F.3d 1039, 1047 (5th Cir.1996) (affirming district court’s grant of summary judgment in favor of defendants, finding that land at issue was not tribal land);
Seneca Nation of Indians v. New York,
26 F.Supp.2d 555, 572 (W.D.N.Y.1998) (entering summary judgment on issue of liability and holding that State violated the Nonintercourse Act as a matter of law),
aff'd,
178 F.3d 95 (2d Cir.1999);
Cayuga Indian Nation of New York v. Cuomo,
730 F.Supp. 485, 493 (N.D.N.Y.1990) (entering partial summary judgment for plaintiffs and' holding that property transaction at issue was invalid, absent evidence of federal ratification);
but see Oneida Indian Nation,
691 F.2d at 1086 (reversing district court’s grant of motion to dismiss because court improperly took
*502
judicial notice of disputed issues of fact contained in historical sources).
In this case, the parties agree that on the issue of liability under the Noninter-course Act, there is no genuine issue of material fact which requires a trial. Accordingly, they have all moved for summary judgment. The parties have presented a well-developed record and the historical facts are not disputed. The parties simply dispute the legal significance of those facts.
B.
Elements of Plaintiffs’ Noninter-course Act Claim
In order to establish a violation of the Nonintercourse Act, a plaintiff must show that: (1) it is an Indian nation or tribe; (2) the land at issue was tribal land at the time of the alleged violation; (3) the United States has never consented to or approved alienation of this tribal land as required by the Act; and (4) the trust relationship between the United States and the Indian nation or tribe has not been terminated or abandoned.
See Golden Hill Paugussett Tribe of Indians v. Weicker,
39 F.3d 51, 56 (2d.Cir.1994);
see also Seneca Nation of Indians,
26 F.Supp.2d at 570 . The parties do not dispute that plaintiffs can establish the first, third and fourth elements of their Nonintercourse Act claim. They do dispute, however, whether plaintiffs can establish the second element,
ie.,
whether the land at issue was tribal land at the time of the alleged violation.
Plaintiffs argue that pursuant to the 1794 Treaty of Canandaigua, the United States granted to the Seneca Nation recognized title to the Niagara Islands, and that in 1815, at the time of the alleged violation, the Islands were therefore tribal land entitled to protection under the Act. In the alternative plaintiffs argue that in 1815, the Seneca Nation held aboriginal title to the Islands.
Defendants, on the other hand, argue that the Senecas never held aboriginal title to the Niagara Islands and even if they did, such title was extinguished prior to 1815. They further argue that prior to the 1794 Treaty of Canandaigua, the State of New York obtained full fee title to the Islands and that the Treaty did not divest the State of that title. Thus, defendants argue that the Islands were not tribal land in 1815.
C.
Law of Indian Land Tenure
At the outset, a brief explication of the law of Indian land tenure is necessary to understand the nature of the parties’ claims and to place in proper perspective the historical facts.
The law of Indian land tenure has its origins in the so-called doctrine of discovery, a legal fiction developed by the United States Supreme Court in the early nineteenth century to reflect European policy toward the Indians and to explain the relative rights of the discovering nations and the Indians to Indian land.
See Worcester v. Georgia,
31 U.S. (6 Pet.) 515, 543-44 , 8 L.Ed. 483 (1832);
Johnson v. McIntosh,
21 U.S. (8 Wheat.) 543, 572-74 , 5 L.Ed. 681 (1823). Under the doctrine of discovery, the discovering European nations held fee title to Indian land, subject to the Indians’ right of occupancy and use, sometimes called Indian title or aboriginal title.
County of Oneida v. Oneida Indian Nation of New York,
470 U.S. 226, 234 , 105 S.Ct. 1245 , 84 L.Ed.2d 169 (1985);
Oneida Indian Nation of New York v. County of Oneida,
414 U.S. 661, 667 , 94 S.Ct. 772 , 39 L.Ed.2d 73 (1974). As a consequence, no one could purchase Indian land or otherwise terminate aboriginal title without the consent of the discovering nation’s sovereign.
County of Oneida,
470 U.S. at 234 ,
*503
105 S.Ct. 1245 (citation omitted). Chief Justice Marshall explained the doctrine of discovery in the seminal case of
Johnson v. McIntosh:
On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire.... But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated, as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.
The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented.
Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.
In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were, necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as a just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished and their power to dispose of the soil, at their own will, to whomever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees subject only to the Indian right of occupancy.
Johnson,
21 U.S. (8 Wheat.) at 572-74 . The doctrine of discovery forms the basis of the well-established law of Indian iand tenure.
Aboriginal title is thg exclusive right of Indian tribes to use and occupy lands they have inhabited “ ‘from time immemorial.’ ”
Mashpee Tribe v. Secretary of Interior,
820 F.2d 480 , 481-82 (1st Cir.1987)
(quoting County of Oneida,
470 U.S. at 284 , 105 S.Ct. 1245 ). An Indian tribe establishes aboriginal title by proving “actual, exclusive, and continuous use and occupancy [of the land] ‘for a long time’ prior to the loss of the property.”
Zuni Indian Tribe of New Mexico v. United States,
16 Cl.Ct. 670, 671 (1989)
(quoting Sac and Fox Tribe of Indians of Okla. v. United States,
161 Ct.Cl. 189, 202 , 315 F.2d 896, 903 ,
cert. denied,
375 U.S. 921 , 84 S.Ct. 266 , 11 L.Ed.2d 165 (1963));
see also United States v. Santa Fe Pac. R.R.,
314 U.S. 339, 345 , 62 S.Ct. 248 , 86 L.Ed. 260 (1941);
Clinton & Hotopp, supra,
31 Me. L.Rev. at 70-71. Aboriginal title makes a tribe’s members “the rightful occupants of the soil, with a legal as well as just claim to
*504
retain possession of it.”
Johnson,
21 U.S. (8 Wheat.) at 574 . Nevertheless, an Indian tribe has no independent power to convey its aboriginal title to another.
Id.; see also James v. Watt,
716 F.2d 71, 74 (1st Cir.1983); Cohen,
supra,
at 487.
The right to terminate or “extinguish” aboriginal title, sometimes called the right of extinguishment, is held by the 9 sovereign.
31
County of Oneida,
470 U.S. at 234 , 105 S.Ct. 1245 ;
Oneida Indian Nation,
414 U.S. at 667 , 94 S.Ct. 772 ;
Oneida Indian Nation,
860 F.2d at 1150 . Aboriginal title can be extinguished by the sovereign or with the - sovereign’s consent at any time. There, are basically two means of extinguishing aboriginal title. First, aboriginal title may be extinguished by the sovereign through a taking, such as through war or physical dispossession.
See Oneida Indian Nation,
860 F.2d at 1159
(citing
3
The Writings of Thomas Jefferson
19 (Lipscomb et al. eds.1904)). Second, the sovereign may extinguish aboriginal title through contract or treaty.
Id.
For example, the sovereign may enter into a purchase contact with the Indians to purchase Indian land or may enter into a treaty of cession with the Indians whereby the Indians agree to cede certain territory in exchange for other rights or property.
See Santa Fe Pac. R.R.,
314 U.S. at 347 , 62 S.Ct. 248 (extinguishment may be accomplished “by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise”).
The holder of the underlying fee title to Indian land, also referred to as the right of preemption, holds the exclusive right to acquire Indian land once aboriginal title has been extinguished.
Johnson ,
21 U.S, (8 Wheat.) at 574;
Oneida Indian Nation,
649 F.Supp. at 425 ;
see also
Howard R. Berman.
The Concept of Aboriginal Rights in the Early Legal History of the United States,
27 Buff. L.Rev. 637, 655 (1978). Generally, the rights of extin-guishment and preemption are joined. However, they are separate powers and need not be held by the same entity.
Fletcher v. Peck,
10 U.S. (6 Cranch) 87, 142-43 , 3 L.Ed. 162 (1810);
Oneida Indian Nation,
414 U.S. at 667, 670 , 94 S.Ct. 772 ;
Oneida Indian Nation,
649 F.Supp. at 425 .
The underlying fee title or right of preemption can be conveyed or transferred to another.
Mitchel v. United States,
34 NS. (9 Pet.) 711, 745, 9 L.Ed. 283 (1835). However, “[u]ntil Indian title is extinguished by sovereign act, any holder of the fee title or right of preemption, either through discovery or a grant from or succession to the discovering sovereign, remains subject ... to the Indian right of occupancy, and the Indians may not be ejected.”
Oneida Indian Nation,
691 F.2d at 1075 (internal quotations and citations omitted). In other words, as long as an Indian tribe retains aboriginal title, ownership of the fee title or right of preemption brings with it no present right of possession. Rather, the fee owner receives a contingent future interest which ripens into a present interest only when the sovereign extinguishes the Indians’ aboriginal title.
James,
716 F.2d at 74 . Once aboriginal title is extinguished by the sovereign, the owner of the underlying fee title or right of preemption obtains fee simple absolute title to the land.
Oneida Indian Nation,
691 F.2d at 1075 .
As the Supreme Court has long held, “the [Indian] right of occupancy with
*505
all its beneficial incidents [is] ... as sacred as the fee,”
United States v. Shoshone Tribe of Indians,
304 U.S. 111, 115 , 58 S.Ct. 794 , 82 L.Ed. 1213 (1938) and is to be “as securely safeguarded as is fee simple absolute title.”
Id.
at 117 , 58 S.Ct. 794 ;
accord Santa Fe Pac. R.R.,
314 U.S. at 345 , 62 S.Ct. 248 ;
Mitchel,
34 U.S. (9 Pet.) at 745 . Accordingly, the Court has held that the intent to extinguish aboriginal title must be “plain and unambiguous.”
Santa Fe Pac. R.R.,
314 U.S. at 346 , 62 S.Ct. 248 , and will not be “lightly implied.”
Id.
at 354 , 62 S.Ct. 248 . The intent to extinguish aboriginal title must be expressed on the face of the legislative act or treaty authorizing extinguishment or be clear from the surrounding circumstances and legislative history.
Mattz v. Arnett,
412 U.S. 481, 505 , 93 S.Ct. 2245 , 37 L.Ed.2d 92 (1973) (citations omitted).
Aboriginal title may be extinguished by the United States without creating an obligation to pay just compensation under the Fifth Amendment.
Tee-Hit-Ton Indians v. United States,
348 U.S. 272, 283-85 , 75 S.Ct. 313 , 99 L.Ed. 314 (1955). In this respect, aboriginal title is to be distinguished from “recognized” title.
Recognized title is title to Indian lands that has been recognized by federal treaty or statute. A treaty may, for example, recognize tribal title by describing a particular land area as being reserved to the tribe. That parcel may or may not have been part of the aboriginal territory of the tribe. Whether or not a treaty recognized title to particular land is a question of intent. In order to establish recognized title, an Indian tribe must show a “definite intention by congressional action or authority to accord legal rights, not merely permissive occupancy.”
Id.
at 278-79 , 75 S.Ct. 313 (citations omitted).
The primary advantage of recognized title is its relative permanence. Recognized title is “property” within the meaning of the Fifth Amendment so that its taking by the federal government gives rise to a right of compensation.
United States v. Creek Nation,
295 U.S. 103, 109-11 , 55 S.Ct. 681 , 79 L.Ed. 1331 (1935).
The reason for the distinction between recognized title and unrecognized title was explained by the Supreme Court in
Tee-Hiir-Ton Indians:
“[T]he taking by the United States of unrecognized [or aboriginal] Indian title is not compensable under the Fifth Amendment ... because Indian occupation of land without government recognition of ownership creates no rights against taking or extinction by the United States protected by the Fifth Amendment or any other principle of law.” 348 U.S. at 285 , 75 S.Ct. 313 . Unrecognized aboriginal title
means mere possession not specifically recognized as ownership by Congress .... This is not a property right but amounts to a right of occupancy which the sovereign grants and protects against intrusion by third parties but which right of occupancy may be terminated and such lands fully disposed of by the sovereign itself without any legally enforceable obligation to compensate the Indians.
Id.
at 279 , 75 S.Ct. 313 .
In the period prior to the American Revolution, Great Britain, recognized as the discovering nation and sovereign after defeating the French, held both the right of extinguishment and the right of preemption of Indian lands located in the colonies. Thus, Britain had the exclusive authority to extinguish Indian title, and its underlying fee title or right of preemption
*506
was good against all other discovering nations.
32
Upon the Revolution, Britain’s fee title or right of preemption passed to the individual states (not- the United States).
33
Oneida Indian Nation,
414 U.S. at 670 , 94 S.Ct. 772 ;
Johnson,
21 U.S. (8 Wheat.) at 584 ;
James,
716 F.2d at 74 . The landed states eventually ceded to the new national government their claims to the western territories beyond their present boundaries.
See supra
at Section VI, Part H. As a result, the right of preemption to Indian lands in the western territories passed to the United States. However, the right of preemption to Indian lands within the borders of the thirteen original states remained with those states.
James,
716 F.2d at 74
(citing Oneida Indian Nation,
414 U.S. at 670 , 94 S.Ct. 772 ;
Seneca Nation of Indians v. Christy,
162 U.S. 288 , 16 S.Ct. 828 , 40 L.Ed. 970 (1896);
United States v. Franklin County,
50 F.Supp. 152, 156 (N.D.N.Y.1943); Clinton & Hotopp,
supra,
31 Me. L.Rev. at 36
&
n.73; William E. Dwyer, Jr.,
Land Claims Under the Indian Nonintercourse Act, 25 U.S.C. §177 ,
7 B.C. Env. Aff. L.Rev. 259, 265 n.41 (1978); Jensen,
supra,
at 198-238 (1966)).
D.
Canons of Indian Treaty Construction
The dispute here requires the Court to interpret several Indian treaties. It is well established that the interpretation of a treaty is a question of law for the court to decide, not a question of fact for a fact finder.
United States v. Washington,
135 F.3d 618, 629 (9th Cir.1998);
Cayuga Indian Nation of New York v. Cuomo,
758 F.Supp. 107, 111 (N.D.N.Y.1991). The Supreme Court has developed canons of construction to assist courts in interpreting Indian treaties. In
Choctaw Nation of Indians v. United States,
318 U.S. 423 , 63 S.Ct. 672 , 87 L.Ed. 877 (1943), the Court stated:
Of course, treaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties. Especially is this true in interpreting treaties and agreements with the Indians; they are to be construed, so far as possible, in the sense in which the Indians understood them, and in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people.
Id.
at 431-32 , 63 S.Ct. 672 (internal quotations and citations omitted).
“The canons of construction applicable in Indian law are rooted in the unique trust relationship between the United States and the Indians. Thus, it is well established that treaties should be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.”
County of Oneida,
470 U.S. at 247 , 105 S.Ct. 1245 (internal quotations and citations omitted).
*507
The Supreme Court recently confirmed these canons of construction for Indian treaties in
Minnesota v. Mille Lacs Band of Chippewa Indians,
526 U.S. 172 , 119 S.Ct. 1187 , 143 L.Ed.2d 270 (1999). There, the Court held that when construing Indian treaties, a court should
look beyond the written words to the larger context that frames the Treaty, including the history of the treaty, the negotiations, and the practical construction adopted by the parties. In this case, an examination of the historical record provides insight into how the parties to the Treaty understood the terms of the agreement. This insight is especially helpful to the extent that it sheds light on how the [Indian] signatories to the Treaty understood the agreement because we interpret Indian treaties to give effect to the terms as the Indians themselves would have understood them.
Id.
at 196 , 119 S.Ct. 1187 (internal quotations and citations omitted).
There are, however, some important limitations on the rule of generous construction of Indian treaties. First, the Supreme Court has cautioned that “even though legal ambiguities are resolved to the benefit of the Indians, courts cannot ignore plain language [in the treaty] that, viewed in historical context and given a fair appraisal, clearly runs counter to a tribe’s later claims.”
Oregon Dep’t of Fish and Wildlife v. Klamath Indian Tribe,
473 U.S. 753, 774 , 105 S.Ct. 3420 , 87 L.Ed.2d 542 , (1985) (internal quotations and citations omitted). In other words, courts cannot, “under the guise of [liberal] interpretation ... rewrite congressional acts
[e.g.,
treaties] so as to mean something they obviously were not intended to mean.”
Confederated Bands of Ute Indians v. United States,
330 U.S. 169, 179 , 67 S.Ct. 650 , 91 L.Ed. 823 (1947) (citations omitted). “[E]ven Indian treaties cannot be rewritten or expanded beyond their clear terms to remedy a claimed injustice or to achieve the asserted understanding of the parties.”
Choctaw Nation of Indians,
318 U.S. at 432 , 63 S.Ct. 672 (citations omitted).
Second, treaties, like statutes, are entitled to a presumption of constitutionality.
See In re Aircrash in Bali, Indonesia on April 22, 1974,
684 F.2d 1301, 1309 (9th Cir.1982). Thus, if there are two plausible constructions of a treaty, one of which makes the treaty constitutional and the other of which would render the treaty outside the constitutional power of the federal government, the court must adopt the constitutional construction and reject the unconstitutional one.
Cf. Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council,
485 U.S. 568, 575 , 108 S.Ct. 1392 , 99 L.Ed.2d 645 (1988) (“where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress”);
Crowell v. Benson,
285 U.S. 22, 62 , 52 S.Ct. 285 , 76 L.Ed. 598 (1932) (“[w]hen the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided”);
Hooper v. California,
155 U.S. 648, 657 , 15 S.Ct. 207 , 39 L.Ed. 297 (1895) (“[t]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality”). This rule applies equally to Indian treaties, even if the unconstitutional construction of the treaty would be more beneficial to the Indians. For example, in
Oneida Indian Nation,
860 F.2d at 1163-66 , the Second
*508
Circuit rejected a construction of the 1784 Treaty of Fort Stanwix put forth by the plaintiff-Indians that would have meant that the Treaty overrode express prohibitions on federal power in the Articles of Confederation, even though such a construction was more favorable to the Indians.
Finally, the rule of generous construction of Indian treaties has not been applied to divest a' state of land that it has acquired.
See id.
at 1163-64 . On the contrary, the Supreme Court has cautioned that such a construction is not warranted “unless the purpose so to do be shown in the treaty with such certainty as to put it beyond reasonablé question.”
United States v. Minnesota,
270 U.S. 181, 209 , 46 S.Ct. 298 , 70 L.Ed. 539 (1926).
E.
The 1764 Treaties of Peace
Plaintiffs claim that until at least 1815, the Seneca Nation held aboriginal title to the entire Niagara region, including the Niagara Islands, and that the Senecas’ aboriginal title to the Islands was never extinguished prior to the 1815 conveyance to New York.
34
Thus, according to plaintiffs, in 1815, the Islands were tribal land protected by the Nonintercourse Act.
Defendants dispute whether the Senecas ever possessed aboriginal title to the Niagara Islands or, for that matter, to any of the Niagara region. They contend that plaintiffs cannot establish actual, exclusive, and continuous use and occupancy of the Islands by the Senecas since time immemorial. Defendants further argue,
inter alia,
that assuming
arguendo
the Senecas possessed aboriginal title to the Islands, such title was extinguished by Great Britain pursuant to the 1764 treaties of peace. As a result, Great Britain obtained fee simple absolute title to the Islands in 1764. Defendants further argue that upon the American Revolution, Britain’s title passed, as a matter of law, to the State of New York. Thus, defendants argue, as of the Revolutionary War, New York owned fee simple absolute title to the Niagara Islands.
The Court need not decide whether plaintiffs can establish the elements of aboriginal title, because it finds, as defendants contend, that even if aboriginal title existed (which the Court passes no opinion on), such title was extinguished by Great Britain pursuant to the 1764 treaties of peace.
1.
The 1764 Treaties Extinguished Seneca Title to the Niagara Islands
As discussed
supra,
the French and Indian War between France and Great Britain was concluded by the Treaty of Paris, on February 10, 1763. Pursuant to the Treaty, France ceded to Britain all its claims to lands east of the Mississippi River, which would have included any claims to the Niagara region and the Niagara Islands. Later that year, part of the Seneca Nation (the westernmost Senecas, who had been aligned with the French during the French and Indian War) joined the western Indians in Pontiac’s Rebellion against the British and ambushed a British supply column at Devil's Hole, killing scores of British soldiers.
See
Appendix C. After the attack, the British prepared to retaliate against the Senecas unless they agreed to seek terms of peace.
On April 3, 1764, the British and Senecas signed the “Preliminary Articles of
*509
Peace, Friendship and Alliance,” Article 3 of which 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 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....
In the margin of Article 3, the instrument stated as follows: “Agreed to, provided the Tract be always appropriated to H.M.’s sole use, that at the definite Treaty, the Unes be run in presence of Sr. Wm Johnson and some of the Seneca’s [sic] to prevent disputes hereafter.” Thus, under the April 3rd treaty, the Senecas agreed to cede to the British Crown the northern Niagara strip, 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. See Appendix G.
On August 6,1764, the British and Senecas signed the “Treaty of Peace and Alliance,” Article 5 of which provided that:
In addition to the grant made by the Chenussio Deputys to His Majesty at 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
[ie.,
the northern Niagara strip], 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].
The August 6th treaty was a continuation of the April 3rd treaty áhd under it, in addition to the northern Niagara strip ceded in the previous treaty, the Senecas agreed to cede the southern Niagara strip, 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. Thus,' as a result of the April13rd and August 6th treaties, the Senecas ceded to the British a four-mile wide strip of land on each side of the Niagara River from Lake Ontario to Lake Erie (the “Niagara strip”).
See
Appendix H.
The language in the 1764 treaties manifests a plain and unambiguous intent on the part of the British Crown to extinguish any title the Senecas may have had to the northern and southern Niagara strips and the Niagara Islands. The language in Article 3 of the April 3rd treaty provided that the Senecas
“cede
to His Maj’ty and his successor
for ever, in full Right,
[the northern Niagara strip].” (emphasis add
*510
ed). Similarly, the language in Article 5 of the August 6th treaty provided ■ that “[i]n addition to the [April]
grant ...
the Che-nussios [Senecas] now,
surrender up
[the southern Niagara strip and the Niagara Islands] ... so that all that Tract ... shall become
vested in the Crown
...” (emphasis added). The above-italicized language plainly and unambiguously indicates the intent of the British Crown, as sovereign and holder of the right of extinguishment, to extinguish Seneca title to the lands described in the treaties.
See Santa Fe Pac. R.R.,
314 U.S. at 3 .46, 62 S.Ct. 248 (intent to extinguish Indian title must be plain and unambiguous).
This conclusion is also supported by the circumstances surrounding the formation of the 1764 treaties. The treaties were a direct result of the Senecas’ participation in Pontiac’s Rebellion and more particularly, the Devil’s Hole massacre. The British intended the treaties to be treaties of cession, designed to recompense the Crown and to punish the Senecas for their attacks upon the British. In addition, the British wanted to secure the vital Niagara River communication, and especially the portage, against future attacks from or land claims by the Senecas.
Having extinguished Seneca title to the Niagara strip and the Niagara Islands in 1764, Great Britain, as the holder of the right of preemption, obtained fee simple absolute title to those lands.
35
2.
The 1764 Treaties Did Not Simply Recognize Great Britain’s Right of Preemption
Plaintiffs argue that, when viewed in their historical context, the 1764 treaties merely confirmed the British Crown’s right of preemption to the Seneca lands in the Niagara region and did not extinguish the Senecas’ aboriginal title. Plaintiffs point out that at the time of the treaties, the British had just defeated the French and thereby succeeded to the French claim of fee title by discovery or right of preemption. However, hostilities continued with the Senecas who had been associated with the French. Plaintiffs contend that through the treaties, the British simply wanted to obtain Seneca acknowledgment of the Crown’s rights as current European sovereign and its control over the area.
The Court finds plaintiffs’ argument that the 1764 treaties were entered into simply to confirm Great Britain’s right of preemption unpersuasive. Great Britain’s right of preemption to the Seneca lands in the Niagara region vested, as a matter of law, following the 1763 Treaty of Paris with France and did not require confirmation by the Senecas. Even had Britain wanted or needed confirmation from the Senecas that Britain held the preemption right to the Niagara region, it is doubtful that the British would have limited that confirmation to the relatively small holding around the Niagara River, as opposed to the entire region that the Senecas then occupied. The British held the right of preemption over all the area occupied by the Senecas,
ie.,
from the Niagara River east to Seneca Lake and from Lake Ontario south to Pennsylvania. If it were Britain’s intent simply to confirm its preemption rights, it certainly would have done so by confirming those rights for the entire area which the Senecas occupied.
Further, an interpretation of the 1764 treaties allowing the Seneca to continue to use and occupy the land along the Niagara would be inconsistent with the language of
*511
and purposes behind the treaties. Given the importance of the Niagara region and the history of Britain’s struggle to control it, it is clear that Britain wanted exclusive possession and control over the Niagara region and in particular the Niagara portage. The Niagara River had become a vital communication route and was critical to the British for both trade and military reasons. Moreover, the 1764 treaties were intended to recompense the Crown and to punish the Senecas for the massacre
at
Devil’s Hole. In this historical context, the use of the terms “grant,” “cede ... in full Right,” and “surrender up all the lands” plainly and unambiguously expressed Britain’s intent to extinguish the Senecas’ aboriginal title to the Niagara lands, if in fact they had such title.
Contrary to plaintiffs’ argument, the language used in the 1764 treaties does not show that the parties contemplated continued use and possession of the Niagara-lands by the Senecas. There is no express language in the treaties regarding continued Seneca use and occupancy of the ceded land, nor can the treaties reasonably be interpreted to have allowed such a result. In fact, there is language in the treaties suggesting the opposite. The only language in the treaties recognizing the Seneca right to possess any land is in Article 9 of the April 3rd treaty, which provided: “In consequence of their perfect agreement to the foregoing Articles, Sir [William] Johnson doth ... promise and engage, that the said Indians ... shall be left in the quiet and peaceful possession of all their Rights
not com/prised in the foregoing articles
(emphasis added). This language shows that the parties intended the Senecas to maintain possession only of those lands outside the lands ceded to the Crown.
The treaty language indicating that the land was ceded to the King for his “sole use” further evidences the King’s intent to extinguish whatever claim of aboriginal title the Senecas may have had to the ceded lands. The King held only the right of preemption and under the law of Indian land tenure, could not obtain “sole use” of the land without first extinguishing the Senecas’ title.
See Johnson,
21 U.S. (8 Wheat.) at 574, 584-85 .
The fact that the treaties required the Senecas to agree “never to obstruct the passage of the carrying place [the Niagara portage]” or interfere with Crown use of the ceded land also did not imply continued Seneca use and occupancy of the area. The inclusion of such a prohibition is explained by the circumstances leading up to the 1764 treaties. The treaties came in the wake of Pontiac’s Rebellion and the Devil’s Hole massacre. It seems clear that this language was added to the treaty simply to ensure that the Senecas did not repeat such hostile acts.
3.
The 1764 Treaties Did Not Violate the 1763 Royal Proclamation
Plaintiffs next claim that even if the 1764 treaties served to extinguish Seneca title to the northern and southern Niagara strips, they did not extinguish Seneca title to the Niagara Islands as the Islands were expressly excepted from the language of the grant to the Crown and were instead granted to Sir William Johnson, the British Indian Commissioner and the Crown’s representative at the treaty negotiations, in his private capacity. Plaintiffs argue that this grant was invalid under British law, because the Royal Proclamation of 1763 expressly prohibited acquisition of Indian land by individuals, without the consent of the Crown. Plaintiffs contend that although Johnson offered the lands to the Crown, there is no evidence that the offer was ever accepted. Thus, plaintiffs argue, since the Crown neither approved the con
*512
veyance to Johnson nor accepted his attempted grant to the Crown, the grant by the Senecas of the Islands to Johnson failed for violation of the 1763 Royal Proclamation. Again, the Court finds, this argument unpersuasive.
A correct construction of the language in Article 5 of the August 6th treaty shows that all the land ceded by the Senecas, including the Niagara Islands, was ceded to the Crown. Thus, there was no violation of the 1763 Royal Proclamation. Article 5 provides in pertinent part: ,
[T]he Chenussios [Senecas] now, surrender up all lands [in the southern Niagara strip], to His Majesty, for His sole use, and that of the Garrisons, but not as private property ...; so that all that Tract [the southern Niagara strip] ... shall become vested in the. Crown, in manner as before mentioned, excepting the Islands between the great Falls and the Rapids [of Lake Erie], 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
A textual reading of Article 5 reveals that the Niagara Islands were an exception to the proviso that the land ceded by the Seneca would not be used as private property, not that the Islands were excepted from the cession to the Crown. “There is a rule of construction that qualifying phrases are generally to be applied to words immediately precedent and not to others more remote.”
See Oneida Indian Nation,
860 F.2d at 1167 (internal quotations and citations omitted). Here, textually, the Niagara Islands are “excepted” from the “manner before mentioned,” which, in turn, corresponds to the proviso that the ceded lands not be used as “private property.” Thus, the cession does not purport to give Sir William Johnson title apart from the Crown; rather, Johnson simply was not subject to the proviso that the ceded land not be used as private property. In other words, Article 5 granted the entire southern Niagara strip, including the Niagara Islands, to the King, with the proviso that none of it be used for private property, except the Islands, which were bestowed as private property to Johnson.
Even if Article 5 were construed as making a grant of the Niagara Islands to Sir William Johnson separate and apart from the grant of the southern Niagara strip made to the Crown, Johnson’s acceptance of the grant would not have violated the 1763 Royal Proclamation, because he accepted the Islands on behalf of the Crown and not himself. As the most senior British official in charge of Indian affairs, Johnson was in essence the Crown in the field and was mandated to treat with the Indians as no private citizen could. Johnson never expressed any intent or interest in obtaining the Niagara Islands for himself. In fact, he originally requested that the Islands be ceded “to his Majesty.”
See
3
The Papers of Sir William Johnson, supra,
at 318-19; Joint Stip. at ¶ 52. It was the Senecas who decided to “bestow” the Islands as private property to Johnson.
36
In' accepting the grant of the Islands, Johnson was acting in his capacity as the King’s agent, not as an individual. In other words, the Islands were essentially deeded to the King through Johnson. In letters to the Earl of Halifax and the Lords of Trade following the treaty,- Johnson explained that he ac
*513
cepted the Senecas’ offer of the Islands so as to not give “great offence” to them and that it was his intention in accepting the Islands to pass them on to the King. Based on these circumstances, Johnson’s “offer” of the Islands to the King was
pro forma;
as the King’s ■ agent, he could only have accepted the Islands on the King’s behalf.
It appears that the King and the British government fully accepted the terms and conditions of the 1764 treaties, including the proviso in Article 5 of the August 6th treaty regarding the Niagara Islands. There is no indication that the Crown ever attempted to modify, amend, rescind or withdraw from the treaties based on a perceived violation of the 1763 Royal Proclamation. Nor is there any indication that the Crown believed that Johnson actually violated the Royal Proclamation. For example, there is no evidence that Johnson was ever accused of, charged with or punished for violating the Proclamation based on his acceptance of the grant of the Niagara Islands. It is clear from the record that at the time of the 1764 treaties, Johnson was aware of the 1763 Proclamation and its prohibition against the acquisition of Indian land by individuals, without the Crown’s consent.
See
3
The Papers of Sir William Johnson, supra,
at 376, 894-95. It seems doubtful that he would have intended to violate blatantly the Proclamation by accepting the Niagara Islands in his private capacity as part of a treaty; a treaty he undoubtably knew would be reviewed by Crown officials. All these facts, when taken together, show that Johnson accepted the grant of the Niagara Islands on behalf of the Crown and not in his private capacity, and that the Crown recognized as much.
37
Sir William Johnson died in 1774. His will made no mention of the Niagara Islands and contained no residuary clause. The will is further evidence that Johnson did not regard the Islands as his private property.
38
The Court’s conclusion that there was no violation of the 1763 Royal Proclamation by Sir William Johnson and that Seneca title to the Niagara Islands was extinguished as a result of the August 6, 1764 treaty has been presaged by Professor Laurence M. Hauptman, Ph.D., one of plaintiffs’ experts, who in 1998, wrote the following:
In both the April and August agreements of 1764, Johnson specifically served as the Crown’s agent, not as an individual land speculator ... When Sir William Johnson died in 1774, his will never mentioned Grand Island or other Niagara River islands, proof that John
*514
son had subsequently transferred these lands to the Crown and that Great Britain’s monarch had title to these lands
See
Hauptman,
supra,
23 Okla.- City Univ. L.Rev. at 154.
4.
The Land Grants in the 1764 Treaties Were Not Revoked by the 1768 Treaty of Fort Stanwix
Plaintiffs next argue that even if the 1764 treaties can be construed as an extin-guishment of Seneca title to the lands granted therein; such grants were set aside by the 1768 Treaty of Fort Stanwix, which fixed a permanent line of property between the Six Nations and the colonies; a line drawn far to the east of Seneca térritory.
See
Appendix I. Indian title to the east of the line was expressly extinguished by the Treaty. Plaintiffs point out that as a condition to the 1768 Treaty, the Senecas asked “that none of the Provinces or their people shall attempt to invade [Indian land] under color of any old Deeds ...” Although this condition was not expressly stated in the Treaty itself, plaintiffs contend that it was adopted and confirmed by the British. Thus, plaintiffs argue, the 1768 Treaty accomplished a revocation of all previous grants, including the grant made to the King under the 1764 treaties. The Court finds this argument unavailing.
The express language of the condition itself applies , only to “the Provinces or their people.” This phrase clearly refers to the colonies and the colonists. It does not refer to the King. Thus, even if plaintiffs’ argument is taken as true and the 1768 treaty revoked all previous land grants west of the property line, such revocations applied only to the colonies and their citizens. There is nothing to indicate that the condition was to apply to the lands granted by the Six Nations to the King, such as those granted in the 1764 treaties.
Events following the 1768 Treaty demonstrate that this construction of the treaty condition is correct. At the time of the 1768 Treaty, the Crown held several posts west of the treaty line, such as Forts Oswego, Niagara, Detroit and Michili-mackinac (located in present-day Michigan). If plaintiffs’ interpretation of the 1768 Treaty condition were correct, the Crown would have been required to surrender all of those posts and any other territory held by the Crown west of the treaty line. This obviously was not intended and, in fact, did not happen.
See
8 NYCD,
supra,
at 125; Defs. Ex. 75. The Crown maintained all of these posts following the Treaty and there was never any dispute raised by the Indians about this continued presence.
Moreover, the record shows that the Indians themselves believed that the 1764 cessions of land to the Crown remained in effect after the 1768 Treaty of Fort Stan-wix. For example, in 1784, Mohawk Chief Joseph Brant, representing the Six Nations, including the Senecas, stated to the New York treaty commissioners at Fort Stanwix:
Brothers! You have particularly expressed your wish to have lands 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.
Then in 1787, 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
*515
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 Lake, 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.
Id.
at 111.
In 1790, Seneca leaders stated to President Washington:
The French came among us, and built Niagara; they became our fathers, and took care of us. Sir William Johnston [sic] came and took the fort from the French; he became our father, and promised to take care of us, and did so, until you were too strong for his king. To him we gave four miles round Niagara as a place of trade.
4
American State Papers, supra,
at 141.
These statements show: (1) that the Senecas believed that the 1764 treaties were treaties of cession, whereby they ceded their lands in the Niagara region to the British Crown; and (2) that the cessions remained in effect following the 1768 Treaty of Fort Stanwix.
39
5.
Great Britain’s Title to the Niagara Islands Passed to New York upon the Revolution
Having determined that as of 1764, Great Britain held fee simple absolute title tó the Niagara strip and the Niagara Islands, the Court further finds that such title passed to the State of New York upon the American Revolution. It is well established that lands to which the British Crown held title prior to Revolution passed to the individual states (not the United States) upon the Revolution.
See Massachusetts v. New York,
271 U.S. at 85-86, 46 S.Ct. 357 .
Shively,
152 U.S. at 15 , 14 S.Ct. 548 ;
Harcourt,
25 U.S. (12 Wheat.) at 526. The Niagara strip and the Niagara Islands lie within the boundaries of New York. Thus, upon the Revolution, Great Britain’s fee simple absolute title to those lands passed to New York.
Plaintiffs argue that New York cannot claim to have acquired fee simple absolute title from Great Britain because up until the Hartford Compact in 1786, there was still a dispute between New York and Massachusetts concerning their western boundaries. This argument is without merit. New York’s cession of its claimed western lands, fixing New York’s western boundary, was complete in 1782, and the Niagara Islands are well to the east of that boundary. The fact that Massachusetts’ lingering dispute with New York concerning the boundary was not resolved (in New York’s favor) until the 1786 Hartford Compact, does not detract from the conclusion that Britain’s title passed to New York as a matter of law upon the Revolution (or certainly no later than 1782).
Cf. Oneida Indian Nation,
860 F.2d at 1167 .
6.
The Court’s Conclusions are Consistent with Those of the ICC
The Court’s conclusions regarding the 1764 treaties are consistent with the findings of the ICC. The ICC found that the
*516
1764 treaties extinguished Seneca title to the entire Niagara strip, including the Niagara Islands. Specifically, the ICC found that “[t]he treaties of cession of 1764 to the prior, sovereign Great Britain are conclusive as evidencing an intent of the Seneca to abandon and relinquish any actual exclusive use and occupancy of the Niagara River strip after 1764.” 20 Ind. Cl. Comm, at 180.
40
Thus, the ICC concluded that “as of the date of American sovereignty, the Seneca Indians did not have a compensa-ble interest in the lands within four miles of the Niagara River,” including the Niagara Islands.
Id.
at 208.
F.
The 1784 Treaty of Fort Stanwix
. Furthermore, even assuming
arguendo
that the Senecas held aboriginal title to the Niagara Islands and that the 1764 treaties of peace did not extinguish such title, such title was extinguished by the United States in the 1784 Treaty of Fort Stanwix. As a result, the State of New York, which then owned, at least, the right of preemption to those lands, obtained fee simple absolute title thereto.
1.
The 1784 Treaty of Fort Stanwix Extinguished Seneca Title to the Niagara Strip and the Niagara Islands
As discussed
swpra,
following the Revolutionary War, the United States undertook to make peace with those members of the Six Nations that had allied themselves with the British (ie., the Seneca, Cayuga, Onondaga and Mohawk Nations), and to reaffirm its peaceful relationship with the Nations that had allied themselves with the United States (ie., the Oneida and the Tuscarora Nations). On October 22, 1784, at Fort Stanwix, the United States entered into a treaty of peace with the Six Nations which,
inter alia,
fixed the western boundary of the Six Nations.
See
Appendix J. As set out in Article 3 of the Treaty, the agreed western boundary line of the Six Nations’ lands began “at the mouth of a creek about four miles east of Niagara, called Oyonwayea [present-day Four Mile Creek], or Johnston’s Landing-Place, upon the lake named by the Indians Oswego, and by us Ontario.” The line then proceeded “southerly in a direction always four miles east of the carrying-path, between Lake Erie and Ontario, to the mouth of the Tehoseroron, or Buffaloe [sic] Creek, on Lake Erie.”
41
From there, the line ran south to the northern border of Pennsylvania. The Treaty provided 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 [the Six Nations] inhabit east and north of the same.” The entire Niagara strip and the Niagara Islands lie west of the Fort Stanwix boundary line.
The language in the 1784 Treaty providing that “the Six Nations shall and do yield to the United States all claims to the country west of said boundary” demonstrates a plain and unambiguous intent on the part of the United States to extinguish any aboriginal title to all lands lying west of the treaty line, including the Niagara strip and the Niagara Islands. This conclusion
*517
is also supported by the language allowing the Six Nations to be “secured in the peaceful possession of the lands they inhabit east and north of the” treaty line. This language necessarily implies that the Six Nations, including the Seneca Nation, had relinquished their right to possess land to the west of the line. Thus, the Court concludes that, pursuant to the 1784 Treaty, the United States extinguished aboriginal title to all lands lying west of the Six Nations’ western boundary line, which included the Niagara strip and the Niagara Islands.
The circumstances surrounding the formation of the 1784 Treaty further support this conclusion. As stated
swpra,
in entering into treaty negotiations with the Indians, the Continental Congress intended: (1) to extinguish Six Nation claims to certain land in the Northwest Territory so that the such land could be used for payment of the United States’ war debts; (2) to punish those Nations that fought against the United States; and (3) to forestall any new Indian war.
See
25
Jour. Continental Cong,
at 682-83, 686.
2.
As a Result of the 1784 Treaty, New York, Not the United States, Obtained Fee Simple Absolute Title to the Niagara Strip and the Niagara Islands
It does not appear that plaintiffs dispute that the 1784 Treaty of Fort Stanwix, at least on its face, extinguished Seneca title to the Niagara strip and the Niagara Islands.
42
Where plaintiffs and defendants disagree is on the question of who obtained title to those lands once the Senecas’ title was extinguished. Plaintiffs argue that because the plain language of the Treaty provided that the Senecas yielded all claims to lands west of the treaty line “to the United States,” the United States obtained title, or at least the right of possession, to the Niagara strip and the Niagara Islands as a result of the Treaty. Defendants, on the other hand, argue that once Seneca title to the Niagara strip and Niagara Islands was extinguished by the United States, the State of New York, as the holder of the right of preemption, obtained fee simple absolute title to those lands, as a matter of law.
The Court finds unpersuasive plaintiffs’ argument that the plain language of the 1784 Treaty of Fort Stanwix constituted a “cession” by the Senecas of their land to the United States. The Treaty provided that the Six Nations “yield' ... all claims” to the United States. Instead of a cession (as was done in the 1764 treaties of peace with Great Britain),
43
this language is in the form of a quit-claim, extinguishing Indian title to the subject land by the United States, but not purporting to address the disposition of that land after extinguishment. Had the United States intended the treaty to be a cession of land to the United States,'it would have certainly used more explicit language connoting that intention. Because the Treaty was in the form of a quit-claim and did not purport to address the disposition of the land after extinguishment, the disposition of the land would have followed the law of Indian land tenure.
As noted, the right of preemption is the exclusive right to acquire Indian land once
*518
aboriginal title has been extinguished.
Oneida Indian Nation,
649 F.Supp. at 425 . Once aboriginal title is extinguished by the sovereign, the holder of the preemption right obtains fee simple absolute title to the land. Prior to the American Revolution, Great Britain held the right of preemption to the Niagara strip and the Niagara Islands.
44
That right passed to the State of New York upon the Revolution. Thus, under the law of Indian land tenure, once the Senecas’ purported aboriginal title to the Niagara strip and the Niagara Islands was extinguished by the 1784 Treaty of Fort Stanwix, New York obtained fee simple absolute title to those lands, as a matter of law.
In response to this analysis, the United States and the Plaintiff Tribes appear to raise different arguments. The United States contends that under the 1784 Treaty of Fort Stanwix, the Senecas transferred to the United States only their pos-sessory interest in the subject lands (ie., their aboriginal title), and that New York continued to hold the right of preemption to those lands, subject to the United States’ right of possession. The Plaintiff Tribes, on the other hand, argue that pursuant to the 1784 Treaty, the Senecas ceded their aboriginal title to the United States and the United States took New York’s right of preemption, thereby obtaining fee simple absolute title to the ceded lands. The Court rejects both arguments.
a.
The 1784 Treaty Did Not Pass the Senecas’ Right of Possession to the United States
The United States’ argument-that under the 1784 Treaty the Senecas merely passed to the United States their exclusive right of possession, with New York still holding the right of preemption-fails for two reasons. First, this argument is inconsistent with the plain language of the Treaty and the circumstances surrounding its formation, which, as discussed,, show a plain and unambiguous intent on the part of the United States, as sovereign, to extinguish the Senecas’ purported aboriginal title to the subject lands. Thus, contrary to the United States’ argument, the Treaty did not merely pass the Senecas’ right of possession to the United States; .it extinguished the Senecas’ aboriginal title.
Second, the United States’ argument is inconsistent with the law of Indian land tenure. Aboriginal title can either be retained by the tribe, abandoned by the tribe, or extinguished by the sovereign. The tribe does not have the power to pass its aboriginal title to another.
See Tee-Hit-Ton Indians,
348 U.S. at 279 , 75 S.Ct. 313 (citation omitted). It makes no sense to say that as a result of the Treaty, the Senecas passed to the United States their aboriginal title, with New York
still
holding the right of• preemption. The right.of preemption
(ie.,
the exclusive right to acquire the land from the Indians once aboriginal title is extinguished), by definition, exists only when the
Indians
still hold the exclusive right of possession. Once aboriginal title is extinguished, the right of preemption ripens automatically, by operation of law, into fee simple absolute title.
See Oneida Indian Nation,
691 F.2d at 1075 .
b.
The 1784 Treaty Must Be Construed Consistently with the Articles of Confederation
The Plaintiff Tribes argue that, pursuant to the 1784 Treaty of Fort Stanwix, the
*519
United States obtained any interest that the Senecas had to the Niagara Islands and took New York’s right of preemption, thereby obtaining fee simple absolute title to the Islands for itself. This argument must also be rejected, as it is inconsistent with the Articles of Confederation.
45
Article IX(4) of the Articles provided that:
The United States in Congress assembled shall also have the sole and 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...
(emphasis added). The' above-italicized language has been referred to as the “legislative right proviso.” As discussed
supra,
the proviso was advocated by the so-called “landed” states, such as New York, who wanted to prevent federal encroachment upon their respective territories and to curtail national power over Indian affairs.
See Oneida Indian Nation,
860 F.2d at 1156-57 . Its inclusion was a major victory for the landed states and, at least in part, formed the basis for the compromise that lead to ratification of the Articles.
Id.; see also
Jensen,
supra,
at 159. In reliance upon the proviso (and other concessions), the landed -states, including New York, agreed to- cede their western land claims. Jensen,
supra,
at 159, 225-28.
The purpose of the legislative right proviso “ “was to save to the States their right of preemption of lands from the Indians.’ ”
Oneida Indian Nation,
860 F.2d at 1160
(quoting 2 The Writings of James Madison
91 (Hunt ed.1901)). Thus, although the United States had the exclusive power under Article IX(4) of the Articles of Confederation to manage Indian affairs, including the exclusive power to’ make treaties of war and peace with the Indians, that power was subject to the proviso that the United States, when exercising that power, could not infringe or violate a state’s right of preemption to Indian land within its borders.
Id.
at 1154-61 .
The Plaintiff Tribes contend that the 1784 Treaty of Fort Stanwix was a valid exercise of federal authority under the Articles of Confederation and did not violate the legislative right proviso, because in the special context of war and peace, the con-federal government had the authority under the Articles to adjust Indian property rights, including taking title to Indian land for itself, even if that land was. located within one of the thirteen original states.
46
*520
The Court agrees with the Plaintiff Tribes that the 1784 Treaty, a treaty of peace between the Six Nations and the United States, was a valid exercise of federal authority under the Articles of Confederation.
See Oneida Indian Nation,
691 F.2d at 1088 . As the Second Circuit held in
Oneida Indian Nation,
860 F.2d at 1154 , under Article IX(4) of the Articles the confederal government had the exclusive power to enter into peace treaties with the Indians. This power applied to Indian tribes located anywhere in the United States, including tribes located within the thirteen original states. The Court further agrees that in the special context of war and peace, the confederal government had the exclusive power,

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2433133. Public record. Not legal advice.