Appendix — Oneida Indian Nation of Wisconsin v. New York
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No. {
IN THE
Supreme Court of the United States
OCTOBER TERM, 1988
THE ONEIDA INDIAN NATION OF NEW YorK,
Petitioner,
V.
STATE OF NEw York, ef al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
APPENDIX
THOMAS D. Barr*
RICHARD W. CLARY
CRAVATH, SWAINE & MOORE
One Chase Manhattan Plaza
New York, N.Y. 10005
JOHN H. PICKERING (212) 428-1000
WILMER, CUTLER & PICKERING *Counsel of Record
2445 M Street, N.W.
Washington, D.C. 20037 WILLIAM W. TayLor, III
(202 ) 663-6000 ZUCKERMAN, SPAEDER,
GOLDSTEIN, TAYLOR &
K OLKER
1201 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 778-1800
Counsel for Petitioners
TABLE OF CONTENTS
Page
Opinion of the United States Court of Appeals for the
Second Circuit, dated October 31, 1988, 860 F.2d
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Opinion of the United States District Court for the
Northern District of New York, dated December 10,
tS. | EO ERR eal ICRC RTS 42a
Order of the United States Court of Appeals for the
Second Circuit, dated December 29, 1988 ...00000.000.000.... 87a
Treaty with the Six Nations (“Treaty of Fort Stan-
wix’’), dated October 22, 1784.00.......0..ccccecccceeeeeecceeeeeese 89a
PREUACIE OE TTI aos vive cvinsencecensoteicccenrovcosnpanenness 9la
Royal Proclamation of October 7, 1763 ...............000000000e- 1Ola
Proclamation of September 22, 1783 .............ccccccccceeeeeees 108a
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The ONEIDA INDIAN NATION OF NEw York, the Oneida Indian
Nation of Wisconsin, Oneida of the Thames Band, et al.,
Plaintiffs-Appvellants,
The Houdenosaunee, the Oneida Nation, the Onondaga Na-
tion, the Mohawk Nation, the Seneca Nation, and the
Tuscarora Nation, Plaintiffs-Intervenors-Appellants,
y;
STATE OF NEw York and Various State Agencies; Twelve New
York Counties, Valentine Ryan, Individually and as Class
Representative; St. Regis Paper Company, Individually
and as Class Representative; Georgia Pacific Corporation,
Individually and as Class Representative; and New York
State Electric and Gas Corporation, Defendant-Appellees.
Nos. 1145, 1144 and 1146, dockets
86-9052, 86-9072 and 86-9074.
United States Court of Appeals,
Second Circuit.
Argued June 2, 1987.
Decided Oct. 31, 1988.
Arlinda Locklear, Washington, D.C. (Richard Daup-
hinais, Native American Rights Fund, Washington, D.C.,
Francis Skenandore, Oneida Tribal Law Office, Oneida, Wis.,
Norman Dorsen, N.Y.U. Law School, New York City, on the
brief, for plaintiff-appellant Oneida Indian Nation of Wiscon-
sin, Daan Braveman, Gary Kelder, Syracuse Univ. Law School,
Syracuse, N.Y., on the brief, for plaintiff-appellant Oneida of
the Thames Band, Bertram Hirsch, Floral Park, N.Y., on the
brief, for plaintiff-appellant Oneida Indian Nation of New
York ), for plaintiffs-appellants.
Curtis G. Berkey, Washington, D.C. (Robert T. Coulter,
Indian Law Resource Center, Washington, D.C., on the brief),
2a
for plaintiffs-intervenors-appellants Houdenosaunee & con-
stituent nations.
Allan Van Gestel, Boston, Mass. (Jeffrey C. Bates, Good-
win, Procter & Hoar, Boston, Mass., on the brief, for
defendants-appellees twelve New York counties & Ryan, Ric-
hard K. Hughes, Hiscock & Barclay, Syracuse, N.Y., on the
brief, for defendants-appellees St. Regis Paper Co. & Georgia
Pacific Corp., Robert Abrams, Atty. Gen., Peter H. Schiff,
Albany, N.Y., on the brief, for defendants-appellees State of
N.Y. & various State Agencies; Howard M. Schmertz, Huber,
Lawrence & Abell, New York City, on the brief, for defendant-
appellee New York State Elec. & Gas Corp.), for defendants-
appellees.
Before NEWMAN, KEARSE AND WINTER, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
This appeal requires consideration of the validity of two
treaties under which New York purchased more than five
million acres of land from the Oneida Indians in 1785 and
1788. The appeal is unusual because it requires a federal court,
perhaps for the first time, to determine whether actions of a
state violated the Articles of Confederation. These matters
arise On an appeal by the Oneidas and other Indians from a
judgment of the District Court for the Northern District of New
York (Neal P. McCurn, Judge ) dismissing their suit against the
State of New York and others for recovery of the land and
damages. The District Court dismissed the suit for failure to
state a claim on which relief can be granted, after conducting an
extensive hearing into the historical background of the relevant
documents, as required by this Court’s prior decision, Oneida
Indian Nation of New York v. State of New York, 691 F.2d 1070
(2d Cir.1982) (Oneida I). We agree with Judge McCurn that
the treaties under which the land was acquired were not invalid
under the Articles of Confederation, the Proclamation of 1783,
or the 1784 Treat of Fort Stanwix. We therefore affirm the
judgment of the District Court.
3a
Background
This litigation began in 1978. Suit was filed by the Oneida
Indian Nation of New York and some of its members. 78 CV-
104 (N.D.N.Y.). Defendants were the State of New York and
several state agencies and state officials. A similar suit was filed
in 1979 by the Oneida Indian Nation of Wisconsin and the
Oneida of the Thames Band, a Canadian tribe located in
Ontario. 79-CV-798 (N.D.N.Y.). The second suit named as
defendants the State of New York, several state agencies and
Officials, and several counties, municipalities, and businesses
located in the area that is the subject of the litigation. In 79-
CV-798, a defendant class was certified consisting of approxi-
mately 60,000 individuals, businesses, and governmental en-
tities and officials. Because of a tribal dispute over recognition
of a governing body of the Oneidas of New York, the first suit
remained somewhat inactive, and the litigation continued in the
second suit, although both suits are the subject of the dispositive
rulings now pending on appeal. Intervention in the second suit
was subsequently granted to the Houdenosaunee, a confederacy
of the six Iroquois Nations, and five of its constituent nations,
the Oneida, Onondaga, Mohawk, Seneca, and Tuscarora Na-
tions. See Oneida Indian Nation of Wisconsin v. State of New
York, 732 F.2d 259 (2d Cir. 1984). The sixth nation in the
confederacy is the Cayuga Nation.
The subject of the litigation is a swath of land in central
New York 50 to 60 miles wide, extending from New York’s
southern border with Pennsylvania to its northern border with
Canada. The land comprises more than five and one-half
million acres and encompasses portions of thirteen New York
counties. New York acquired the land as a result of two treaties
it concluded with the Oneidas—the Treaty of Fort Herkimer,
signed on June 23, 1785, and the Treaty of Fort Schuyler,
signed on September 22, 1788. By the first treaty New York
acquired 300,000 acres for $11,500 in goods and cash. By the
second treaty New York acquired approximately five million
acres for $5,500 in goods and cash, plus a payment of $600 per
year. The annual payment obligation was capitalized and
4a
discharged by a lump-sum payment in 1839. N.Y. Laws ch.
S18 (1839).
The plaintiffs challenged the validity of the two transac-
tions on a number of grounds, of which only three have
survived the prior appeal to concern us on the pending appeal:
lack of consent by the Confederal Congress, alleged to be
required by the Articles of Confederation, conflict with the 1784
Treaty of Fort Stanwix between the United States and the Six
Nations, and conflict with the Proclamation of 1783, issued by
the Confederal Congress. The District Court originally dis-
missed all of the claims for legal insufficiency in 1981. Oneida
Indian Nation of New York v. State of New York, 520 F.Supp.
1278 (N.D.N.Y.1981).
On the first appeal we upheld much of what the District
Court had decided. Oneida I. We upheld the rejection of New
York’s defenses of Eleventh Amendment immunity, id, 691
F.2d at 1079-80, non-justiciability, id. at 1080-83, and untimeli-
ness, id. at 1083-84. With respect to justiciability, we upheld
the power of a federal court to determine in general Indian land
rights based on Indian treaty or other federal law but did not
focus specifically on issues of justiciability that might arise in
the course of considering the merits of the particular claims
advanced by the plaintiffs. With respect to timeliness, we reject
the applicability of state statutes of limitations to the plaintiffs’
federal law claims and also ruled that a time bar based on
federal law was not applicable since the tribes should not be
precluded in circumstances where the United States would be
entitled to sue; the United States could sue for damages until
December 31, 1982, on claims that accrued prior to July 18,
1966, see 28 U.S.C. § 2415(a), (b) (1982 & Supp. IV 1986),
and could sue without any time limit to establish title or
possession, id. § 2415(c). Though our prior opinion contained
no discussion of a defense of laches, it stated in its conclusion
that this defense was being rejected. Oneida I, 691 F.2d at
1097.1
' The writer accepts the prior panel’s rejection of a laches defense
as the law of the case, though would find the issue to be a substantial
Sa
Turning to the merits of the plaintiffs’ claims, the panel in
Oneida I upheld the District Court’s rejection of the claim that
the lands had been acquired by fraud, id. at 1096, and the claim
that the 1788 transaction was a lease, creating a right of
reversion that could not lawfully be acquired without congres-
sional consent after enactment of the first Nonintercourse Act,
Act of July 22, 1790, 1 Stat. 137 (1845) (current version
codified at 25 U.S.C. § 177 (1982). With these matters cleared
away, the panel then focused on the issues at the heart of the
current controversy. Ultimately the panel concluded that the
claims based on the Articles of Confederation, the Treaty of
Fort Stanwix, and the Proclamation of 1783 could not be
resolved on a motion to dismiss under Fed.R.Civ.P. 12(b)(6)
“without affording the plaintiffs an evidentiary hearing in order
to clarify the meaning and context of [contemporaneous ]
statements relied on and the weight to be given to them.”
Oneida I, 691 F.2d at 1086. The case was remanded for such
such a hearing.
On remand, the District Court assembled a voluminous
record, detailed examination of which has occasioned the delay
in issuing this opinion. In live testimony, videotaped depos-
itions, and written statements, several of the nation’s foremost
historians of the confederal period gave their views about the
background and meaning of the key documents at issue in the
litigation. Their statements were accompanied by hundreds of
supporting documents, including the correspondence of the
principal participants. In a scholarly and comprehensive
opinion, Judge McCurn adhered to his previous decision,
dismissing as legally insufficient all of the plaintiffs’ remaining
claims. Oneida Indian Nation v. State of New York, 649 F.
one if it were open. In County of Oneida v. Oneida Indian Nation of
New York, 470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985), four
Justices of the Supreme Court expressed the view in dissent that suits
such as the pending one are barred by laches. /d. at 255, 105 S.Ct. at
1262 (Stevens, J., with whom Burger, C.J., and White and Rehnquist,
J.J., concur, dissenting). The majority did not reach the laches
defense on the ground that the issue had not been preserved in the
Court of Appeals. Jd. at 245, 105 S.Ct. at 1257. The majority
observed in a footnote that application of the defense of laches to an
action at law would be “novel.” /d. at 244 n. 16, 105 S.Ct. at 1257 n.
16.
6a
Supp. 420 (N.D.N.Y. 1986). We will set forth Judge McCurn’s
rulings with respect to each of the principal points at issue in the
course of our consideration of the merits.
Discussion
I. The Rights Concerning Indian Lands
Under the so-called Doctrine of Discovery, long recog-
nized by the Supreme Court, Worcester v. Georgia, 6 Pet. (31
U.S.) S515, 543, 8 L.Ed. 483 (1832); Johnson v. McIntosh, 8
Wheat. (21 U.S.) 543, 573-74, 5 L.Ed. 681 (1823), the
discovering nations held fee title to Indian land, subject to the
Indians’ right of occupancy and use. County of Oneida v.
Oneida Indian Nation, 470 U.S. 226, 234, 105 S.Ct. 1245, 1251,
84 L.Ed.2d 169 (1985); Oneida Indian Nation v. County of
Oneida, 414 U.S. 661, 667, 94 S.Ct. 772, 777, 39 L.Ed.2d 73
(1974). This distinction between fee title and the Indians’ right
of occupancy and use, sometimes called Indian title or aborigi-
nal title, gave rise to a corresponding distinction between the
rights to affect fee title and Indian title. The right to extinguish
Indian title, sometimes called a right of extinguishment, was
held by the sovereign—Great Britain in the period prior to the
American Revolution. Whether this right was held by the
United States or by the individual states during the confedera!
period is part of the pending controversy. Since the adoption of
the Constitution, there has been broad agreement that the right
of extinguishment belongs to the national government. See
Oneida Indian Nation v. County of Oneida, supra, 414 U.S. at
667, 94 S.Ct. at 777. The right to purchase the fee ttle to
Indian land is known as the right of preemption. Whether the
right of preemption enjoyed by the states during the confederal
period included the right of extinguishment is also part of the
pending controversy.
Il. The Claim Under the Articles of Confederation
Plaintiffs contend that under the Articles of Confederation
the United States held the exclusive right of extinguishment of
7a
Indian title as to all Indian lands, both within and beyond the
borders of the states. As a consequence, the argument contin-
ues, New York’s acquisition of the disputed lands is invalid for
lack of consent by the Confederal Congress. At a minimum,
plaintiffs contend, Congress had the power to control the nght
of extinguishment in the exercise of its power to make peace
treaties with the Indians and that, without consent of the
Confederal Congress, no state could extinguish Indian ttle
under circumstances that would interfere with congressional
power to treat with the Indians on matters of war and peace.
Before examining these contentions, we pause to notice the
jurisdictional conundrum posed for an Article III court by a
claim alleging a violation of the Articles of Confederation.
During the Confederation, there were no national courts au-
thorized to adjudicate any issues arising generally under nation-
al law.2 Though the Constitution established as the supreme
law of the land all treaties previous made, U.S. Const. art. VI,
cl. 2, it did not expressly incorporate, even for purposes of
adjudicating antecedent disputes, the Articles of Confederation
or statutes enacted by the Confederal Congress. With no
national court available to adjudicate an Articles claim during
the Confederation and no express incorporation of the pre-
existing Articles as binding law after the Confederation, how
2 The only permanent national court existing under the Con-
federation was the Court of Appeals in Cases of Capture, created by
Congress in 1780 to hear appeals of prize cases from state courts
exercising admiralty jurisdiction. See 17 Journals of the Continental
Congress 458-59 (May 24, 1780); Hart and Wechsler’s the Federal
Courts and the Federal System 5 n. 18 (Bator et al. eds. 1973). This
Court was created by the Confederal Congress under its Article IX( 1)
power to establish courts “for receiving and determining finally
appeals in all c»ses of captures.”” See Martin v. Hunter’s Lessee, |
Wheat. (14 U.S.) 304, 345, 4 L.Ed. 97 (1816). In addition, the
Confederal Congress on one occasion used its Article IX(2) power to
create a panel to adjudicate a land dispute between Connecticut and
Pennsylvania concerning the territory along the Susquehanna River
known as the Wyoming Valley. See 1 J. Goebel, Jr., History of the
Supreme Court of the United States: Antecedents and Beginnings to
1801, at 188-93 (1971); Hart & Wechsler, supra, at 4 n. 17.
Sa
does an Article III court acquire jurisdiction over a claim arising
under the Articles? The District Court, in its first decision in this
litigation, had recognized the argument that federal jurisdiction
was lacking for the claim under the Articles. 520 F.Supp. at
1291. The District Court ruled, however, that subject matter
jurisdiction was plainly available for the claim arising under the
Treaty of Fort Stanwix, incorporated as the supreme law of the
land by the Constitution, id. n. 12, and concluded that the claim
under the Articles was a pendent state law claim over which it
elected to exercise jurisdiction under United Mine Workers v.
Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).
520 F.Supp. at 129t. Judge McCurn noted that New York had
incorporated the Articles into its statutes in 1778. Jd. at 1291 n.
13.
One may wonder whether New York’s incorporation of the
Articles was only an act of adherence to the Confederation or in
addition was intended to render them part of the positive law of
the State, enforceable in its courts. Even if New York courts
viewed the Articles as enforceable “state” law, one may wonder
whether they would have ever upheld a claim alleging that the
State of New York had violated the Articles by acting in
conflict with unexercised power of Congress. One may even
speculate that state judges in the confederal period might have
left such power struggles between the states and Congress to
adjustment through the non-judicial processes of goverment
and through politics perhaps inaugurating the political question
doctrine.4
3 Cf. Irvine v. Sims’s Lessee, 3 Dall. (3 U.S.) 425, 464, 1 L.Ed.
665 (1799) (Iredell, J., concurring) (doubting whether prior to the
Constitution court could consider claim that state statute violated
compact between two states ).
4 On at least one occasion during the Confederation a New York
court decided a case in which it was claimed (by no less an advocate
than Alexander Hamilton) that a New York statute was invalid
because of a conflict with the Articles of Confederation. utgers v.
Waddington (unreported ) (Mayor’s Court of New York City 1784),
summarized in | J. Goebel, supra, at 132-34. The court was urged to
conclude that the state statute, authorizing a trespass action for
military occupation of private homes, was contrary to alleged releases
9a
However we might resolve these doubts, we believe that
the opinion of the prior panel in Oneida / established as the law
of the case that jurisdiction exists for the claim based on the
Articles and that this claim is justiciable, notwithstanding the
fact that the dispute concerns the relative powers of Congress
and a state under a governmental system that lacked a national
judicial branch. On the prior appeal, we noted that the District
Court had upheld subject matter jurisdiction, Oneida I, 691
F.2d at 1074. Since a reviewing court always has an obligation
to satisfy itself of the existence of such jurisdiction, this may be
deemed implicit approval of the District Court’s jurisdictional
ruling. As to justiciablity, though the panel discussed only the
general question of whether Indian land claims were justiciable,
without explicit consideration of the justiciability of a claim
based on the Articles, id. at 1080-83, the entirety of the panel’s
discussion of the merits was premised on the appropriateness of
adjudicating that claim in the District Court. That was a
principal reason for the remand. We therefore accept as the
law of the case both subject matter jurisdiction over the Articles
claim and its general justiciability, though, as we discussed
below, One issue pertinent to that claim is not justiciable.
Apart from law of the case, we note that the Supreme
Court has adjudicated a claim concerning title to Indian land
even though the challenged acquisitions occurred during the
interval between the Declaration of Independence and the
Constitution. Johnson v. McIntosh, supra. The former Court of
effected by the Treaty of Paris, ending the war with Great Britain, and
thereby interfered with Congress’s authority under the Articles. The
court appeared to accept the proposition that no state could alter the
Confederation or a treaty of the United States, but ultimately decided
the case by narrowly construing the state statute, in light of the law of
nations, to deny any benefit to the claimant, See | J. Goebel, supra,
131-37.
In Phelps v. Holker, \ Dall. (1 U.S.) 261, 1 L.Ed. 128 (Pa.-
Sup.Ct.1788), the Pennsylvania Supreme Court construed the Articles
as not including a full faith and credit obligation that would entitle a
Massachusetts judgment to be conclusive evidence of a debt, enfor-
ceable in an in rem action in Pennsylvania. /d. at 264 (Opinion of
McKean, C. J.).
10a
Claims also adjudicated an Indian claim arising from a land
transaction occurring during the Confederation. Six Nations v.
United States, 173 Ct.Cl. 899 (1965). Rejecting a claim under
section 2(5) of the Indian Claims Commission Act, 25 U.S.C.
§70a(5) (1964) (repealed ), the Court ruled that the Articles of
Confederation did not establish a fiduciary relationship be-
tween the United States and the Six Nations with respect to
lands within state borders. In Penhallow v. Doane’s Adm’rs, 3
Dall. (3 U.S.) 54, 1 L.Ed. 507 (1795), the Supreme Court, in
upholding the validity of a judgment entered during the
confederal period by the Court of Appeals in Cases of Capture,
adjudicated the validity of congressional action taken under the
Articles and even action taken prior to their ratification.
A. The Context, Structure, and Text of the Articles of Con-
federation
We turn then to the merits of appellants’ claim under the
Articles, initially bearing in mind the relevant historical context.
The framing and ratification of the Articles of Con-
federation occurred against a background dominated by two
overriding circumstances pertinent to the issues in this litigation.
First, treaties of peace with both Great Britain and with the Six
Nations of the Iroquois Confederacy had not yet been con-
cluded. The Articles were submitted to the states in 1777 and
ratified by Maryland, the last state to do so, in 1781. The
Treaty of Paris, formally ending hostilities with Great Britain,
was not signed until September 3, 1783, 8 Stat. 80 (1848), and
the Treaty of Fort Stanwix, ending hostilities with the four
Iroquois nations that had sided with the British—the Senecas,
Mohawks, Onondagas, and Cayugas—and assuring protection
to the two Iroquois nations that had sided with the United
State—the Oneidas and the Tuscaroras—was not signed until
October 22, 1784. Second, there existed a major controversy
between the so-called landed states—those claiming Western
lands—and the so-called landless states—those without such
claims. The landed states, New York, Connecticut, Massachu-
setts, Virginia, North Carolina, South Carolina, and Georgia,
lla
asserted their claims primarily on the basis of their colonial
charters, except for New York, which based its claim on its one
hundred year history of special relationship with the Six
Nations. The landless states were New Hampshire, Rhode
Island, New Jersey, Pennsylvania, Delaware, and Maryland. A
dominant concern of the new national government was to limit
the territory of the landed states to their traditional borders
near the East Coast and secure for the United States the vast
domain of land these states claimed westward to the Mississippi
River, or even “to the South Sea,” as stated in the colonial
charters of Connecticut, Massachusetts, Virginia, North Caro-
lina, South Carolina, and Georgia. Ultimately the new govern-
ment was successful, as the landed states ceded “their” Western
lands to the United States, often in exchange for recognition of
favorable boundaries for their traditional areas of state jurisdic-
tion.
It is in the context of these great issues of war and land that
the fledgling national government undertook to determine the
allocation of authority between the nation and the states on
diverse matters, of which none was more contentious than
Indian affairs. The close relationship between the evolution of
the Articles of Confederation and resolution of the Western
lands issue is vividly illustrated by the instructions of Maryland
to her delegates not to agree to the Articles until matters
concerning the Western lands had been settled. See U.S.C.A.
Art. of Confed., Historical Notes 15 (1987).
The fundamental structure of the Articles is one.“ limited
delegation of powers to the national government with reserva-
tion to the states of all powers not delegated. Article Il
provides:
Each State retains its sovereignty, freedom and in-
dependence, and every power, jurisdiction and right, which
is not by this confederation expressly delegated to the
United States, in Congress assembled.
The Necessary and Proper Clause, which played such a signifi-
cant part in the shaping of federal powers under the Con-
12a
stitution, see McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316,
4 L.Ed. 579 (1819), was absent from the Articles of Con-
federation.
Two clauses of Article IX set forth the delegated powers
pertinent to the pending litigation. Article IX(1) provides:
The United States in Congress assembled, shall have the
sole and exclusive right and power of determining on
peace and war, except in the cases mentioned in the sixth
|
Article [X(4) provides:
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... .
The extent to which the authority of Congress was limited by
the phrase “not members of any of the States” and by the
Legislative Rights Proviso are major issues of dispute in this
litigation.
Two clauses limiting the authority of the states are relevant
to the pending issues. Article VI( 1) provides:
No State without the consent of the United States in
Congress assembled, shall... enter into any conference,
agreement, alliance or treaty with any king, prince or
foreign state... .
Article VI(5) provides:
No State shall engage in any war without the consent of
the United States in Congress assembled, unless such State
be actually invaded by enemies, or shall have received
certain advice of a resolution being formed by some nation
of Indians to invade such State, and the danger is so
imminent as not to admit of a delay, till the United States
Congress assembled can be consulted... .
13a
B. The Source of National Power to Make Peace Treaties with
the Indians.
A fundamental issue that divides the parties is whether
federal power to make peace treaties with the Indians derives
from Article IX(1) or Article IX(4). The dispute is important
because the plaintiffs, relying on clause 1, contend that the
national power to make peace treaties with the Indians included
the power to extinguish Indian title, whereas the defendants,
relying on clause 4, contend that the national power to make
treaties with the Indians in the course of “managing all affairs”
with them was subject to the Legislative Rights Proviso in that
clause, a proviso the defendants contend confirmed state au-
thority to extinguish Indian title to lands within state borders.
As a fallback position, the defendants also contend that, even if
Indian peace treaty power derives from clause 1, that power is
nonetheless modified by the Legislative Rights Proviso of
clause 4.
The District Court resolved this dispute in favor of the
plaintiffs but with a qualification that results, in effect, in a
victory for the defendants. Judge McCurn first concluded that
“the plain language of clause | indicates that congress had
clause | authority over Indians.” 649 F.Supp. at 434. He then
stated that Congress’ power to make treaties with the Indians
was exclusive only with respect to treaties of war and peace, id.
at 435; with respect to treaties to purchase land, he concluded
that the states had such power under clause 4 by virtue of the
Legislative Rights Proviso and that this Proviso included the
right to purchase Indian land and extinguish Indian title
without consent of the Confederal Congress, id. at 434.
Though we reach the same ultimate conclusion, we travel a
different analytical route. We do not agree with Judge McCurn
that clause | conveyed to the Confederal Congress exclusive
power to make only certain kinds of treaties with the Indians.
The plain language of clause | indicates to us that whatever
power was there contained was indivisible. We see no basis for
reading clause | to give Congress exclusive power to make
some treaties with the Indians, leaving the states with power to
14a
make other treaties with them. As we read clause I, it has no
application to Indians. Instead, we read clause 4, with its grant
of national power to manage “all affairs” with the Indians, to
grant the Confederal Congress the power to make any treaties
with the Indians—on war and peace and on other subjects such
as land acquisitions. The clause 4 power, however, was subject
to the Legislative Rights Proviso, and we read this Proviso to
reflect the same distinction Judge McCurn read into clause I.
The Proviso was not a grant to the states of an indivisible array
of powers. We conclude that it did not give the states any
power to make treaties of war and peace with the Indians (such
power belonging exclusively to Congress under clause 4), but
that it did give the states the power to purchase Indian land
within their borders and extinguish Indian title to such land so
long as such activity did not interfere with Congress’s para-
mount powers over war and peace with the Indians.
Our reasons for reaching these conclusions start with the
text of the pertinent provisions. Clause 1 grouped Congress’s
exclusive power to make treaties with its exclusive power to
send and receive ambassadors. The grant of such exclusive
power was complemented by the denial to the states in Article
VI( 1) of the power, without consent of Congress, to make any
treaty or to exchange embassies with “any king, prince or
state.”” In none of the contemporaneous materials were the
Indian nations or their leaders referred to as a “king, prince or
state.” This phrase plainly applied to foreign nations. It was to
these nations, not Indian “nations,” that the United States sent
ambassadors, and it was with these nations that the United
States could make treaties under clause 1. The Supreme Court
has referred to the Indian tribes as “domestic dependent
nations” in concluding that they are not “foreign states” within
the meaning of section 2 of Article II of the Constitution. See
Cherokee Nation v. Georgia, 5 Pet. (30 U.S.) 1, 17, 8 L.Ed. 25
(1831).
A further consideration, based on both the text of the
Articles and contemporaneous practice, concerns ratification.
Article IX(6) prohibited the Untied States from entering into
lSa
“‘any treaties or alliances . . . unless nine States assent to the
same.” During the confedera: period, treaties between the
United States and Indian nations were not submitted to the
states for ratification. In particular, the Treaty of Fort Stanwix,
which plaintiffs rely on in this litigation as an exercise of
Congress’ authority under Article IX( 1), became effective when
it was signed. Congress did not submit it for ratification but
merely directed that the Treaty be published and transmitted to
the states. 28 Journals of the Continental Congress 423-26, 430
(June 6, 1785) [hereinafter cited as “JCC”’]. Treaties author-
ized by clause | of Article IX were those that required
ratification as provided in clause 6. By not submitting Indian
treaties for ratification, the negotiators and the Confederal
Congress to which they reported indicated their contempo-
raneous understanding that such treaties were authorized by
clause 4 as part of “managing all affairs with the Indians,”
rather than by clause 1.5
A further textual consideration arises from the fact that
although Article [X(1) included treaties of ““commerce,” Ar-
ticle IX(4) expressly covered “trade” with the Indians, further
indicating that the powers of Article IX(1) were those relating
to foreign countries, not domestic Indian nations.
Plaintiffs contend that in one respect the text of the Articles
supports their reading of Article IX(1). They rely on the
provision of Article VI(5), which exempted the states from the
prohibition against engaging in war without the consent of
Congress when there is imminent danger of invasion by “some
nation of Indians.” Since an exception for threat of invasion by
Indians was contained in the article generally restricting the
states’ powers concerning war and peace and since this ex-
ception was expressly referred to in Article IX(1), plaintiffs
argue that matters concerning war and peace with the Indians
5 Interestingly, one of the first proposals made by President
Washington to the First Congress under the Constitution was that
Indian treaties should henceforth be submitted to the Senate for
ratification in the same manner as treaties with European nations. |
Messages and Papers of the Presidents 61-62 (Sept. 17, 1789).
l6a
must have fallen within Article I[X(1)’s grant of exclusive
authority to Congress over war and peace. Though the
argument found favor with the District Court, 649 F.Supp. at
434-35, we are not persuaded. Article VI(5) simply recognized
that threat of invasion by Indians justified an exception to what
would otherwise have been exclusive power in Congress over
matters of war and peace, but it sheds no light on whether such
power, with respect to Indians, was conferred by clause | or
clause 4 of Article IX. The reference to the exception in Article
IX(1) lends some support to an inference that clause | was the
source of authority for Indian treaties, but this arguable infer-
ence is insufficient to overcome the contrary textual consid-
erations.
Contemporaneous understanding of the legislators who
had framed the Articles of Confederation further supports our
conclusion. On several occasions, committees of the Confederal
Congress filing reports con¢erning their investigations of Indian
affairs on matters of war and peace explicitly referred to Article
IX(4) as the source of their authority and made no mention of
Article IX(1). See, e.g., 33 JCC 454, 458 (Aug. 3, 1787); 25
JCC 680-93 (Oct. 15, 1783). The report filed on October 15,
1783, by the committee investigating Indian affairs in the
Southern Department explicitly referred to the authority of
Congress to make peace treaties with the Indians and relied
upon Article IX(4). Especially pertinent is the April 21, 1783,
resolution of a committee of Congress reporting on steps to end
hostilities with the Indians and to prepare for peace treaties.
Reciting the source of congressional authority, the resolution
relied on the Article [X(4) power of “managing all affairs with
the Indians” and made no mention of Article IX(1) 24 JCC
264 (Apr. 21, 1783). In this regard it is also notable that the
Proclamation of 1783, a broad exercise of national authority
over Indian affairs, which we consider below, expressly referred
to the language of Article IX(4) as the source of authority for
the Proclamation, and made no mention of Article IX(1).
Proclamation of 1783, reprinted in 25 JCC 602 (Sept. 22,
1783).
17a
We do not doubt that treaties made during the confederal
period between the United States and Indian nations are
entitled to the same respect as treaties made with foreign
nations and that both equally became “the supreme Law of the
Land” by virtue of Article VI of the Constitution. See
Worcester v. Georgia, supra, 6 Pet. at 559. We conclude only
that Congress’s power to make Indian treaties derived from
Article [X(4).
C. National and State Authority Under Article [X(4)
1. Evolution of Article 1X(4). Examination of the evolu-
tion and contemporaneous understanding of clause 4 of Article
IX confirms our conclusion that national authority to make
treaties with the Indians derived from this clause and also sheds
significant light on the respective powers of the national
government and the states in Indian matters, particularly in
regard to the purchase of Indian lands. The first draft of the
Articles of Confederation, prepared by Benjamin Franklin in
1775, would have given Congress complete and exclusive
authority over Indian affairs. Only Congress could purchase
Indian land. 2 JCC 195-99 (July 21, 1775). Franklin’s draft
was not submitted to Congress.
The draft that served as the basis for amendment and
ultimate adoption was prepared by John Dickinson. See 5 JCC
546-54 (July 12, 1776). The Dickinson draft submitted to
Congress on July 12, 1776, gave Congress “the sole and
exclusive Right and Power of . . . Regulating the Trade, and
managing all Affairs with the Indians.” Dickinson Draft of
Articles of Confederation art. XVIII, 5 JCC 550 (July 12,
1776). This draft also dealt specifically with state authority to
purchase Indian lands. In a provision more narrow than
Franklin’s draft, Dickinson’s draft provided that no person or
colony could purchase Indian land until state boundaries were
determined, and Congress was given power to set such bound-
aries. Once the boundaries were determined, only Congress
could purchase Indian land outside such boundaries. The plain
implication was that after the boundaries were fixed, states
could purchase Indian lands inside their boundaries. Jd. art.
XIV.
18a
During the summer of 1776, a Committee of the Whole
modified the Dickinson draft. The Committee’s version, report-
ed to Congress on August 20, 1776, deleted Article XIV from
Dickinson’s draft, eliminating even the prohibition on the
authority of colonies to purchase Indian lands prior to
ascertainment of state boundaries. The grant of exclusive
power to Congress of “regulating the trade, and managing all
affairs with the Indians,” contained in renumbered Article XIV,
was now modified to apply only to Indians “not members of
any of the States.” Committee Draft of Articles of Con-
federation art. XIV, 5 JCC 682 (Aug. 20, 1776).
Debate on the Articles languished until 1777 and did not
resume on the clauses concerning Indian lands until October
1777. On October 27, two amendments were offered to the
draft article granting Congress power over Indian affairs. The
first, evidently offered by those interested in limiting national
power, would have deleted the phrase “not members of any of
the states” and substituted “not residing within the limits of any
of the United States.” 9 JCC 844 (Oct. 27, 1777). This
amendment would have narrowed national power to Indians
living outside the territorial limits of the states. The second
amendment, evidently offered by those interested in broadening
national power, would have rewritten the entire grant of power
to Congress to read: ““managing all affairs relative to war and
peace with all Indians not members of any particular State, and
regulating the trade with such nations and tribes as are not
resident within such limits wherein a particular State claims,
and actually exercises jurisdiction.” Jd.
Two aspects of this second amendment are significant.
First, it showed that those endeavoring to broaden national
power, the landless states, wanted national authority over trade
with the Indians to apply even to Indians within a state’s limits
under circumstances where a state was not “actually ex-
ercis[ing] jurisdiction.” Second, it showed that even those
seeking to broaden national power assumed that the phrase
“managing all affairs with the Indians” included the power to
deal with matters of war and peace with the Indians. The
19a
proponents of this amendment, in seeking broader national
authority over Indian trade than over Indian war and peace
matters, left the latter topic in what became Article [X(4); they
did not bother to suggest any modification of the provisions that
became Article IX(1) because they understood that the issues
of war, peace, and treaties that were dealt with in those
provisions concerned only relations with foreign countries.
The following day, October 28, the Congress, without
explanation but evidently in a spirit of compromise, rejected
both of the pending amendments and decided instead to leave
the wording of the grant of national power respecting Indian
affairs unchanged but to add the words of the Legislative
Rights Proviso: “provided, that the legislative right of any State
within its own limits be not infringed or violated.” Jd. at 845.6
Thus, the somewhat ambiguous “not members” phrase was
retained without either expansion or contraction, but a broad
protection of state authority was expressly inserted, a protection
of authority within a state’s “limits,” not merely within areas
over which it was “‘actually exercis[ ing] jurisdiction.”
In two respects theevolution of Article IX(4) is especially
pertinent to the pending controversy. First, the process that
began with Franklin’s draft and ended with the Articles as
adopted represents a gradual victory for the landed states,
which were seeking to curtail national power over Indian
affairs. It would be inconsistent with this pattern of diminishing
national power to find in the Articles an implicit prohibition
barring the states from purchasing Indian land within their
borders without the approval of Congress. Second, the con-
tention that the exclusive Article IX(1) power of Congress to
make treaties comprehends Indian treaties and thereby pre-
cludes state treaties to purchase Indian lands is refuted by the
meticulous attention the Congress gave to Article IX(4). In the
struggle between the states seeking to expand national power
6 The amendment contains a comma after the word “State,”
which was omitted in the Articles as finally adopted. The omission
appears to have no significance.
20a
over Indian affairs and those seeking to narrow such power, all
the attention was focused on the provisions that became Article
IX(4). There was no controversy about the meaning of the
national treaty power in Article IX(1). The entire debate over
Article IX(4) would have to be ignored to conclude that while
the landed states were winning their fight to refine Article
IX(4) to their liking, there was always implicit in Article IX( 1)
a broad grant of exclusive national power that precluded by
negative implication state purchases of Indian land within state
borders.
Once it is understood that the allocation of power respect-
ing all Indian affairs is governed solely by Article [X(4), there
can be little doubt, as the preceding discussion has fore-
shadowed, that clause 4 confirmed the right of the states to
purchase Indian lands within their borders without the consent
of Congress, at least under circumstances that did not interfere
with the war and peace powers of the Congress. Though the
terms of clause 4 have properly been characterized as ‘“‘am-
biguous,” Worcester v. Georgia, supra, 6 Pet. at 559 (1832),
and even “obscure and contradictory,” The Federalist No. 42,
at 334 (J. Madison) (J. Cooke ed. 1961), the fundamental
purpose and meaning of the Legislative Rights Proviso is clear
in this respect.
In construing Article IX(4), we will assume without deci-
ding that the District Court was correct in accepting appellants’
contention that the “not members” phrase applied to Indians,
such as those of the Six Nations, who were not assimilated into
the body politic of any state, though located within its territorial
limits. 649 F. Supp. at 431-32. Even if that is so, we agree with
the District Court that the Legislative Rights Proviso confirmed
the authority of the states to purchase Indian land within its
borders without securing congressional consent. J/d. at 433-35.
Though the text of Article [X(4) does not settle the matter one
way or the other, the contemporaneous materials examined by
the District Court provide a firm basis for the Court’s con-
clusion.
2. Contemporaneous Understanding of Article 1X (4).
Prominent among the contemporaneous materials surveyed by
2la
Judge McCurn is the correspondence between James Monroe
and James Madison specifically discussing whether New York’s
claimed right to purchase Indian lands conflicted with the
Articles of Confederation. In response to Monroe’s query,
Madison candidly recognized that Article IX(4) was am-
biguous since the Legislative Rights Proviso, if “taken in its full
latitude,” would “destroy” the authority of Congress. Letter
from ‘James Madison to James Monroe (Nov. 27, 1784),
reprinted in Il The Writings of James Madison 91 (Hunt ed.
1901). Endorsing an interpretation that endeavored to harmo-
nize the Proviso with the grant of national regulatory power,
Madison concluded that the Proviso guaranteed the states the
right to purchase Indian land.” Specifically referring to the
relationship between New York’s proposed purchase and the
national government’s Treaty of Fort Stanwix, he said that “as
rar as N.Y. may claim a right of treating with the Indians for
the purchase of lands within her limits, she has the con-
federation on her side.”8 Jd.
One somewhat equivocal indication of contemporaneous
understanding is the resolution adopted by the Confederal
Congress in 1783 in response to Pennsylvania’s notification of
7 Madison set out four reasons for his conclusion:
1. That this was the principal nght formerly exerted by the
Colonies with regard to the Indians. 2. that it was a right
asserted by the laws as well as the proceedings of all of them, and
therefore being most familiar, wd. be most likely to be in
contemplation of the Parties; 3. that being of most consequence
to the States individually, and least inconsistent with the general
powers of Congress, it was most likely to be made a ground of
Compromise. 4. it has always been said that the proviso came
from the Virga. Delegates, who wd naturally be most vigilant
over the territonal rights of their Constituents.
Il. The Writings of James Madison, supra. at 91-92.
8 Madison continued with the observation that “as far as she
| New York] may have exerted that right [to purchase Indian land }
in contravention of the Gen. Treaty [of Fort Stanwix] ... , she has
violated both duty and decorum.” Madison expressed no view on
whether New York’s proposed purchase would, violate the Treaty. It
appears from this and other correspondence that he had not become
aware of the terms of the Treaty at the ime he wrote to Monroe. We
consider this issue in part III, infra.
22a
its intention to make a treaty with the Indians for the purchase
of land within the state’s acknowledged borders. The Pennsyl-
vania General Assembly had broached to Congress the topic of
a land purchase in a carefully worded resolution that invited
Congress to express its views but did not acknowledge the
power of Congress to withhold consent. The resolution made
clear Pennsylvania’s view that “the Articles of Confederation
do not by any means explicitly restrict [the Pennsylvania
General Assembly] from entering on_ this business [of a
purchase of Indian land | independent of Congress,” yet sought
the “sense of the Congress” concerning the purchase “being
deeply impressed with the delicacy of touching any subject of
federal relation, but with the most deliberate caution; and as
the letter of a clause in the ninth section [Article IX(4)]
appears to involve a doubt. . . 25 JCC 594 (Sept. 20, 1783).
The committee of Congress considering the matter recom-
mended advising Pennsylvania that Congress had no objection
“provided no engagements relative to peace or war with the
said Indians, be entered into by the said State, the power of
holding treaties on this subject being vested by the Con-
federation solely in the United States in Congress assembled.”
Id. at 591i. Though that view of national and state authority is
consistent with our conclusions, the emphasis on national
authority was evidently worded too strongly for the landed
states. most of which joined together in defeating this version of
the committee’s resolution. After considerable attempts to find
acceptable language, Congress ultimately adopted a far more
innocuous resolution, stating only that the federal commission-
ers who were about to meet with the Indians to conclude a
peace treaty should give notice to Pennsylvania of the time and
place of holding the treaty “to the end, that the persons to be
appointed by [Pennsylvania], for purchasing lands within the
limits thereof, at the expense of the said State, may attend for
the sole purpose of making such purchase, at the time and place
appointed for holding the said treaty.” 25 JCC 767 (Oct. 30,
1783). Then, in lieu of the original language that had
endeavored to describe the exclusive area of national authority,
the resolution added that the United States commissioners are
23a
instructed to give “every assistance in their power” to the
Pennsylvania negotiators “towards promoting the interest of
that State, as far as the same may consist with the general
interest of the Union.” Jd.
Appellants draw from this episode the conclusion that
Pennsylvania acknowledged the need to secure the approval of
Congress for the land purchase. We think the episode lends
greater support to the position of the appellees. Pennsylvania
was careful to maintain its position that the Articles did not
authorize Congress to bar the State’s purchase. Significantly,
Congress expressed no contrary view. Even the draft resolution
emphasizing exclusive national power only over matters of war
and peace was thought too strong and was rejected in favor of a
more generally worded version that referred vaguely to the
“general interest of the Union.”
More probative and strongly supportive of the appellees’
position are the circumstances of Congress’s reaction to New
York’s plans to undertake what ultimately became the first of
the two purchases challenged in this litigation. During the
course of congressional debate on resolutions of instruction to
the federal commissioners who would negotiate the Treaty of
Fort Stanwix, a resolution was offered concerning a then
pending New York plan to distribute to its soldiers some of the
land New York was endeavoring to appropriate from the
Onondagas and the Cayugas, tribes that had sided with the
British during the Revolution. The resolution would have
instructed that if the planned distribution “may so far irritate
the Indians, as to expose these United States to the dangers and
calamities of an Indian War,” the federal commissioners were
to report the difficulties to the New York legislature and “in
such case, it is earnestly recommended to the legislature of New
York to revise the laws by which such appropriations have been
made... .” 25 JCC 642 (Oct. 3, 1783). Even this mild
proposal was too strongly worded for New York and other
landed states, and it was defeated. But it is powerful evidence
that even as to a land acquisition that might lead to war with
the Indians, Congress believed it had only the power to
24a
recommend that a state desist, not the power to withhold a
consent necessary for such acquisition.
Further indication of the absence of national power to
disapprove state Indian land purchase under the Confederation
are the pertinent views expressed concerning the changed
circumstances under the Constitution. Among the most well-
known statements is the December 29, 1790, reply of President
Washington to Corn Planter, Chief of the Senecas, who had
complained about state purchases of Indian lands. Washington
pointed out that these purchases had occurred before the
adoption of the Constitution and added, “But the Case is now
entirely altered. The General Government only has the-Power
to treat with the Indian Nations, .. . No State, nor Person, can —
purchase your Lands, unless at a general Treaty, held under the
Authority of the United States.” Proceedings of the Commis-
sioners of Indian Affairs 166 n. | (Hough ed. 1861).
Thomas Jefferson, writing an official opinion as Secretary
of State, expressed a similar view on May 3, 1790:
There -are but two means of acquiring the native title.
First, war; for even war may, sometimes, give a just title.
Second, contracts or treaty.
The States of America before their present union
possessed completely, each within its own limits, the
exclusive right to use these two means of acquiring the
native title, and by their act of union, they have as
completely ceded both to the general government.
3 The Writing of Thomas Jefferson \9 (Lipscomb et al.
eds. 1904).9
9 Jefferson subsequently expressed a view that appears to con-
tradict his 1790 opinion. In a letter to the Secretary of War on August
10, 1791, Jefferson wrote:
[N Jeither under the present constitution, nor the ancient con
federation, had any State or person a right to treat with the
Indians, without the consent of the General Government.
8 The Writing of Thomas Jefferson, supra, at 227. The apparent
contradiction was plausibly explained in testimony to the trial court by
25a
In 1832, Chief Justice Marshall also recognized the signifi-
cant change. In reviewing the evolution of national power over
over [sic] Indian affairs, he noted the uncertainties created by
the Legislative Rights Proviso in Article IX(4) and then
observed that the “correct exposition of this article is rendered
unnecessary by the adoption of our existing constitution. . . .
[The new government’s powers over Indian affairs] are not
limited by any restrictions on their free actions; the shackles
imposed on this power, in the confederation, are discarded.”
Worcester v. Georgia, supra, 6 Pet. at 559.
In concluding as we do that during the confederal period
the states had authority to purchase Indian land within their
borders without the need of congressional consent, we accept an
important proposition advanced by the appellees concerning
the meaning of “preemption” during this period—namely, that
this right of the states included the right to extinguish Indian
title. After the Constitution, when the United States acquired
plenary power over Indian affairs without the “shackles” of the
Legislative Rights Proviso of Article IX(4), it is clear that the
national government held the right of extinguishment of Indian
title to all lands then owned by the Indians. But during the
confederation, we are satisfied, after examination of the exten-
sive materials presented to the trial court, that the historians
who testified that the right of preemption enjoyed by the states
then included the right of extinguishment have the better of the
argument.
When Madison wrote his significant letter to Monroe on
November 27, 1784, and set forth his reasons for construing the
Legislative Rights Proviso to accord New York the right to
purchase Indian land, he summarized the purport of the
Proviso by saying that “it was to save to the States their right of
pointing out that the 1790 opinion was affirming the states’ right to
acquire Indian land by purchase, whereas the 1791 opinion was
concerned with the attempt by Georgia to appropriate Indian land by
cession. The very next words of Jefferson’s 1791 opinion add:
that that consent has never been given to any treaty for the
cession of lands in question... .
Id.
26a
preemption of lands from the Indians.” JJ The Writings of
James Madison, supra, at 91. It would have made no sense to
argue so carefully the case in support of New York’s right to
make the purchase if Madison had meant that New York could
acquire only fee title, leaving the Indians with Indian title that
only the United States could extinguish. Significantly, one of
the reasons Madison advanced for his interpretation favoring
New York was that the right of preemption had previously
been asserted by New York and many other states. Clearly,
these states had been asserting a right to obtain complete title to
Indian lands within their borders, not a partial right that left
them subject to the assent of the national government.
Jefferson’s opinion of May 3, 1790, written when he was
Secretary of State, also recognized that the rights of a state were
broader before the Constitution. Advising with respect to
Georgia’s attempt to convey land obtained from Indians, he
said:
Georgia, possessing the exclusive right to acquire the native
title, but having relinquished the means of doing it to the
national government, can only have put her grantee into
her own condition. She could convey to them the exclusive
right to acquire; but she could not convey what she had not
herself, that is, the means of acquiring.
3 The Writings of Thomas Jefferson, supra, at 20 (empha-
sis in original ).
Marshall recognized the same point in Johnson v.
McIntosh, supra. In recounting the development of the rights of
discovering nations with respect to Indian lands, he observed:
It has never been doubted, that either the United States, or
the several states, had a clear title to all the lands within
the boundary lines described in the treaty [ending the war
with Great Britain], subject only to the Indian right of
occupancy, and that the exclusive power to extinguish that
right was vested in that government which might con-
stitutionally exercise It.
27a
8 Wheat. at 584-85 (emphasis added ). It should be noted that
Marshall was careful not to claim for the United States alone a
right to extinguish Indian title, no doubt recognizing that the
United States held such right as to Western lands but that the
states held such right as to lands within their acknowledged
borders. Marshall then considered the nature of Virginia’s
rights with respect to the particular parcels at issue in Johnson,
land within the borders of Virginia that had been purchased by
a private citizen from Indians in 1773 and 1775. After quoting
Virginia’s assertion in legislation passed in 1779 of the State’s
“exclusive right of preemption from the Indians, of all the
lands within the limits of her own chartered territory,’ ” the
Chief Justice concluded, “‘[I]t may safely be considered as an
unequivocal affirmance, on the part of Virginia, of the broad
principle which had always been maintained, that the exclusive
right to purchase from the Indians resided in the government.”
Id. Having previously recognized that the right to extinguish
Indian title was in “that government which might con-
stitutionally exercise it,” Marshall (and Virginia) were neces-
sarily using “preemption” to include the right of ex-
tinguishment.
We conclude that the Article IX(4) power of Congress to
manage Indian Affairs, as limited by the Legislative Rights
Proviso, did not preclude New York from making the 1785 and
1788 purchases of Oneida land within its borders.
D. Inherent Right of External Sovereignty
If exclusive national power to extinguish Indian title during
the Confederation with respect to lands within state borders
was not supportable by Article IX(1) or Article [X(4), appel-
lants contend that such power arose from the United States’
inherent right of external sovereignty. This argument relies on
the analysis of external sovereignty set forth by the Supreme
Court in United States v. Curtiss-Wright Export Corp., 299 US.
304, 57 S.Ct. 216, 81 L.Ed. 255 (1936).
Curtiss-Wright involved a challenge to the validity of a
presidential proclamation barring the sale of arms to Bolivia, a
28a
nation then engaged in war in the Chaco. The proclamation
was challenged on the ground that the joint resolution of
Congress under which it issued was an unconstitutionally broad
delegation of power. The Court rejected the challenge, con-
cluding that the delegation objection was not valid with respect
to the President’s conduct of the foreign relations of the United
States. In reaching this conclusion, the Court articulated the
principle of external sovereignty. The Court reasoned that
“international powers,” id. at 316, 57 S.Ct. at 219, were never
possessed by the colonies and therefore could not have been
transferred by the newly established states to the national
government when the nation was created. Such powers, being
an attribute of sovereignty under the law of nations, were
deemed to pass directly to the United States at the instant of
independence from Great Britain. Jd. Though the Court’s
opinion is concerned with national and especially presidential
power under the Constitution, it is clear that Justice Sutherland
believed that the scope of “international powers” was equally
extensive during the period between the Declaration of In-
dependence and the Constitution:
As a result of the separation from Great Britain by the
colonies acting as a unit, the powers of external sovereignty
passed from the Crown not to the colonies severally, but to
the colonies in their collective and corporate capacity as the
United States of America.
Id. Some of the historians who testified in the trial court in this
litigation advanced strong arguments for doubting the correct-
ness of this proposition, but we are obliged to take our
instruction as the Supreme Court gives it. 1°
Accepting the principle that the national government pos-
sessed inherent powers of external sovereignty during the
10 Even if the powers of external sovereignty flowed direcily to
the national government at the moment of independence, there is
considerable basis for believing that the national government itself
redistributed some of these powers to the states in establishing the
scheme of government prevailing under the Articles of Confederation.
29a
confederal period, we nevertheless reject appellants’ claim that
the existence of such powers precluded the states from acqui-
ring Indian title to land within their borders without the consent
of Congress. First, we do not agree with the premise of
appellants’ argument that the powers of external sovereignty
included authority over all purchases of Indian land. Indeed,
we have considerable doubt whether the “international pow-
ers” discussed in Curtiss-Wright included any authority with
respect to Indians. The whole tenor of the Court’s discussion
concerns international relations, the very matters that during
the Confederation were the subject of the powers enumerated
in Article IX(1), which did not include Indian affairs. We
recognize, however, that Indian affairs do not fall neatly into
the category of either international or domestic matters, and it
is surely arguable that on matters concerning war and peace
with the Indians, the national government did possess the
inherent powers that Curtiss-Wright ascribed to the national
government in the realm of traditionally “international” mat-
ters. But even if this is so, it is far too extravagant an extension
of the concept of external sovereignty to maintain that it
includes authority over a// purchases of Indian land. To
whatever extent external sovereignty entitled the Confederal
Congress to treat with the Indians on matters of war and peace,
it did not vest the United States with a right of extinguishment
with respect to land acquisitions by the states that did not
implicate those matters.
Appellants appear to suggest, however, that New York’s
1785 and 1788 purchases of Oneida lands did implicate issues
of war and peace by posing a threat to the peace with the Six
Nations that resulted from the Treaty of Fort Stanwix. This
Suggestion raises a question of justiciability that was not
considered in Oneida I—whether a federal court may invalidate
a state purchase of Indian land on the ground that the purchase
posed a threat to peace with the Indians. This issue arises with
respect to both appellants’ claim based on external sovereignty
and their claim, considered below, based on the Treaty of Fort
Stanwix.
30a
Even under the Constitution, with federal courts author-
ized by statute to decide questions arising under federal law,
including treaties, it is clear that many questions concerning
peace and war are not appropriate for determination by the
Judicial Branch. The Supreme Court declared more than a
century ago, for example, that the determination of the end of
hostilities requires reference “‘to some public act of the political
departments of the government to fix the dates.” The Protector,
12 Wall. (79 U.S.), 700, 702, 20 L.Ed. 463 (1871). Previously
the Court disclaimed authority to adjudicate the correctness of a
decision of the President determining the existence of suffi-
ciently “imminent danger of invasion” to warrant calling forth
state militias. Martin v. Mott, 12 Wheat. (25 U.S.) 19, 6 L.Ed.
537 (1827). It may well be, as the Court has also indicated,
that some issues concerning the existence of hostilities may not
require deference to the decisions of the political branches, see
Baker v. Carr, 369 U.S. 186, 211-12, 82 S.Ct. 691, 706-07, 7
L.Ed.2d 663 (1962); Woods v. Miller Co., 333 U.S. 138, 144, 68
S.Ct. 421, 424, 92 L.Ed. 596 (1948). But it would be an
extraordinary assertion of judicial authority under the Con-
stitution for a federal court to determine whether action of a
state posed a sufficient threat to peace to warrant invalidation
because of conflict with inherent national power arising from
external sovereignty. We think it likely that a federal court
would disclaim such authority unless acting at the request of the
United States in a lawsuit authorized by statute. Cf. Youngs-
town Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96
L.Ed 1153 (1952). If under the Constitution an Article III
court could probably not, in the absence of a statute, deem
justiciable the issue of whether a state land purchase imperiled
the peace, it surely cannot do so when the challenge to the
purchase arises under the Articles of Confederation. Thus, to
the extent that the appellants’ external sovereignty argument
would require us to determine whether New York’s land
purchases in 1785 and 1788 posed a threat to peace with the
Indians, we conclude that this issue is not justiciable.
Our second reason for rejecting the external sovereignty
argument proceeds from the explicit recognition in Curtiss-
3la
Wright that the inherent power there recognized “like every
other governmental power, must be exercised in subordination
to the applicable provisions of the Constitution.” 299 U.S. at
320, 57 S.Ct. at 221. That limiting principle must have been
equally applicable to whatever inherent powers the national
government possessed under the Confederation. If anything, it
had more force prior to the establishment of the “more perfect
Union.” As we have earlier concluded, the organic law of the
Confederation included in Article IX(4) a reservation of right
to the States that enabled them to purchase Indian land within
their borders and thereby to extinguish Indian title. Even an
expansive reading of Curtiss-Wright does not support inherent
national authority that may override this limitation.
III. The Claim Under the Treaty of Fort Stanwix
Appellants contend that the Treaty of Fort Stanwix prohib-
ited New York’s purchases of Oneida land without the consent
of the Confederal Congress. Before turning to the specifics of
this contention, we note that it encounters the general objection,
set forth above, that the national government lacked the power
to impose such a limitation on New York’s right to purchase
Indian land within its borders. We acknowledge, however, that
there is plausible basis for recognizing power in the Confederal
Congress to prohibit those state purchases that would imperil
peace with the Indians, and to some extent appellants contend
that the challenged New York purchases posed at least a threat
to the peace secured by the Treaty of Fort Stanwix. Even this
aspect of the claim encounters a serious objection. To whatever
extent Congress’s power on matters of war and peace with the
Indians included authority to bar state purchases that imperiled
peace with the Indians, we have the same concern about
adjudicating challenges to the exercise of that power in a treaty
as we previously expressed with respect to challenges to the
exercise of inherent power arising from external sovereignty: At
least in the absence of a statute authorizing federal court
adjudication, it would have been up to Congress, not the
judiciary, to determine that a particular state purchase posed a
sufficient threat to peace to warrant invalidation. It is arguable,
32a
however, and perhaps this is appellants’ point, that in author-
izing and approving the Treaty of Fort Stanwix, Congress itself
was making the determination that state purchases of Oneida
lands would imperil peace with the Indians and for that reason
would be prohibited in the absence of the consent of Congress.
We will assume that Congress had the power to make such a
determination and to implement it with such a prohibition,
thereby removing from judicial scrutiny the issue of whether
state purchases would imperil the peace. Nevertheless, we
agree with the District Court that the treaty does not contain the
prohibition for which the appellants contend."
The textual basis for appellants’ claim is Article I, which
provides in its entirety:
The Oneida and Tuscarora Nations shall be secured in the
possession of the lands on which they are settled.
Tréaty with the Six Nations, Oct. 22, 1784, 7 Stat. 15 (1846)
(Treaty at Fort Stanwix). Manifestly this provision does not
say in terms that the Oneidas may not sell their lands to New
York without the consent of Congress. Despite the absence of
any explicit language to that effect, the appellants contend that
the Treaty should be construed to contain such a limitation.
They rely on cases holding that Indian treaties are to be broadly
construed in favor of the Indians. See, e.g., Washington v.
Washington State Commercial Passenger Fishing Vessel Ass'n,
443 US. 658, 676, 99 S.Ct. 3055, 3069, 61 L.Ed.2d 823 (1979);
Antoine v. Washington, 420 U.S 194, 199-200, 95 S.Ct. 944,
948. 43 L.Ed.2d 129 (1975). We will construe the Treaty with
this principle in mind, examining the context in which the
provision at issue appears and what can be gleaned concerning
its contemporaneous understanding at the time of the negotia-
tions.
11 In view of this conclusion, we do not reach the argument, on
which appellants’ Treaty claim is premised, that the Treaty represents
a determination by Congress that purchases of Oneida land would
imperil the peace.
33a
Before turning to that task, we note three considerations
that weigh heavily against the interpretation urged by the
appellants. First, to read into the Treaty a general prohibition
against land sales to states without approval of Congress would
endow the Confederal Congress with authority ta override the
Legislative Rights Proviso of Article IX(4) by treaty. Under
the Constitution, the treaty power cannot override con-
stitutional limitations respecting individual rights. Reid vy.
Covert, 354 U.S. 1, 16-17, 77 S.Ct. 1222, 1230, 1 L.Ed.2d 1148
(1957) (plurality opinion ), though the relation of this power to
State prerogatives is less certain, see Missouri v. Holland, 252
U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920). It is highly
doubtful that under the Articles of Confederation the reconci-
liation of national power and state prerogatives was subject to
adjustment in favor of national power simply by the use of
national treaties. Second, the rule of generous construction has
not been applied to divest a state of land it has acquired. 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
reasonable question.” United States v. Minnesota, 270 U.S. 18},
209, 46 S.Ct. 298, 306, 70 L.Ed. 539 (1926). Third, though the
construction urged by the Oneidas would now inure to their
benefit, it surely would not have been to their benefit at the time
of the Treaty if their right to be secured in’ the possession of
their lands carried with it a perpetual limitation on their right to
sell portions of their lands.
The placement of Article II within the Treaty of Fort
Stanwix is instructive. This article is one of four operative
provisions of the Treaty, all of which are placed after the
following introductory language:
The United States of America give peace to the Senecas,
Mohawks, Onondagas and Cayugas, and receive them into
their protection upon the following conditions:
34a
Treaty of Fort Stanwix, supra, 7 Stat. at 15. Thus, the context
of Article II suggests that the guarantee to the Oneidas to be
secured in the possession of their lands protected them against
interference by the four hostile Iroquois Nations that had sided
with the British, and had nothing to do with limiting lands sales
to New York. This understanding of Article II is borne out by
the statement of the federal commissioners at the concluding
session of the negotiations on October 23, 1784. Speaking first
to the four hostile nations, they said, ‘“‘We have buried the
hatchet, not only between the United States and you, but also
between our friendly Indians the Oneidas, Tuscaroras, Mo-
hickans and Cognewashas and yourselves.” Minutes of the
proceedings at Fort Stanwix in 1784, Wayne Manuscripts,
Indian Treaties 1778 to 1795, B (Historical Society of Pennsyl-
vania) [hereinafter ‘Wayne MSS” (emphasis added). Then,
speaking directly to the Oneidas and the Tuscaroras, the federal
commissioners continued:
Congress has not forget your fidelity and attachment.
They would not have made war with the hostile tribes,
without securing your interest but such a peace is now
concluded with them as is perfectly agreeable to you. Now
you may embrace the last hostile tribes as your brothers
who have come home to you again after a long and
anxious absence.
Id. (emphasis added ).
The evolution of the Treaty, from its origins to the
authorization for its publication, supports the appellees’ view of
its meaning. As Commander-in-Chief, George Washington set
forth his views as to the nature and purposes of a treaty with the
Six Nations in his September 7, 1783, letter to James Duane,
the chairman of the committee of Congress appointed to confer
with him. Washington urged that a treaty should be nego-
tiated, establishing a boundary line for the lands of the Six
Nations. He cautioned that private entrepreneurs should not be
permitted to purchase Indian land, but recognized that land
sales to government would occur: “| T]he Indians . . . will ever
retreat as our Settlements advance upon them and they will be
Zi
35a
as ready to sell, as we are to buy.” 27 The Writings of George
Washington 136 (Fitzpatrick ed. 1938). Then, focusing pre-
cisely on the issue that has come to dominate this litigation, he
added:
No purchase under any pretense whatever should be made
by any other authority than that of the Sovereign power, or
the Legislature of the State in which such lands may happen
to be.
Id. at 137 (emphasis added ).
The following month Congress adopted the report of its
Committee for Indian Affairs for the Northern and Middle
Districts and appointed commissioners to negotiate with the Six
Nations. Significantly, the report included an instruction to the
commissioners to “reassure” the Oneidas and the Tuscaroras
that they may rely that the lands which they claim as their
inheritance will be reserved for their sole use and benefit
until they may think it for their own advantage to dispose of
the same.
25 JCC 687 (Oct. 15, 1783) (emphasis added). In adopting
the report, Congress specifically provided that the authorization
for a treaty with the Six Nations “shall not be construed to
affect the territorial claims of any of the states, or their
legislative rights within their respective limits.” /d. at 693.
The notes of one of the Treaty commissioners, Richard
Butler, reflect his understanding, just two days before the
Treaty was agreed to, that the commissioners were to assure the
Oneidas and Tuscaroras they they may “rely on the lands which
they claim . . . till they think fit to dispose of them.” Richard
Butler’s Notes on the Treaty of Fort Stanwix (Oct. 18, 1784),
Richard Butler Papers, 3 Frontier Wars Papers (Series U) 290,
Lyman Draper Manuscripts (State Historical Society of
Wisconsin ).
When Congress received the Treaty and ordered it pub-
lished, it adopted language offered by Melancton Smith, a
delegate from New York, declaring that “no purchases, which
36a
have been or hereafter may be made from the Indians, at any
treaties held or to be held with them, of their right to soil within
the limits of any state, can, ought, or shall be considered as
interfering with the right of any such state to the jurisdiction or
soil.” 28 JCC 426 (June 3, 1785).
There is one aspect of the Treaty negotiations that ar-
guably lends support to the appellants’ position. but, under-
stood in context, it is insufficient to overcome the contrary
evidence. On two occasions the federal treaty commissioners
spoke to the leaders of the Six Nations concerning the ex-
clusivity of federal authority. Appellants view these remarks as
conveying to the Indians the understanding that all sales of
Indian land would require the approval of Congress. Appellees
interpret the remarks as indicating only that the federal com-
missioners had the exclusive authority to negotiate on matters
of peace. The first statement was made on October 12, 1784, at
the opening of the treaty negotiations. One of the federal
commissioners said:
| W Je also tell you that we have full authority to transact
all business between the United States, and you, and that
without the authority of Congress no business can be valid
that may be attempted by particular people or States.
Il The Olden Time 407 ( Craig ed. 1846). On October 12, 1784,
the Indians were told “not to listen to any overtures made to
you by any person or body of men or by any particular State
not authorized by Congress.” Wayne MSS, supra. A Mohawk
chief, Aaron Hill, responded on October 17 in remarks that left
the ambiguity unresolved:
You directed us not to attend to what any particular state
might say to us on public business, for that the commis-
sioners or Congress alone were adequate to the purpose.
Id.
The unsuccessful efforts of New York to negotiate a peace
treaty with the Six Nations earlier in 1784 makes it clear that
37a
the references in these remarks are to state negotiations over
peace, not purchase of land. In March 1783, the New York
legislature had formulated a plan to end hostilities with the Six
Nations under an arrangement whereby New York would
displace the Senecas, the Onondagas, and the Cayugas from the
lands ihey claimed within New York’s borders and then
negotiate with the Oneidas to exchange their land for land
previously owned by the Senecas. H.S. Manley, The Treaty of
Fort Stanwix 28-29 (1932). The legislature instructed its
Indian commissioners to negotiate with the Oneidas. New
York’s plan aroused serious concern in Congress that New
York’s attempt to negotiate peace with the Six Nations by
removing some of the tribes from New York’s borders would
precipitate hostilities. Undaunted, New York’s Governor Clin-
ton in April 1784 invited the Mohawks, Onondagas, Cayugas,
and Senecas to a meeting to adjust all differences between
them, the Oneidas and the Tuscaroras, and New York. A
meeting was set for August at Fort Stanwix. Governor Clinton
and the New York Indian commissioners met first with the
Oneidas and Tuscaroras, assuring them of their friendship.
Then, meeting with the four hostile nations, the New York
delegation sought to obtain an outright cession of their lands
within New York’s borders. This demand was refused, and
New York’s attempt to consummate a separate peace ended in
failure.
It was this episode that prompted the remarks of the
federal commissioners to the Six Nations at Fort Stanwix later
in the fall of 1784. In a letter to the President of the Confederal
Congress on October 5, 1784, just two days after the first
remarks relied on by the appellants, the federal commissioners,
writing from Fort Stanwix, gave this report of what had
occurred:
Tho we gave due information to the Governor of this State
of the ume & place of holding the treaty. that if he had any
business to transact with the Indians he might do it under
the patronage of the U.S. But he chose to hold a treaty
with the Six Nations before us, & we are told endeavored to
38a
make peace with them in the name of this State. . . . [W]e
thought proper to inform the Indians in our conference,
that a treaty with an individual State without the sanction
of Congress could be of no validity.
Papers of the Continental Congress, National Archives Micro-
film Publications, Microcopy No. M-247, roll 69, p. 133 (em-
phasis added). Aaron Hill, the Mohawk Chief, also had the
abortive New York peace treaty efforts in mind when on
October 17 he acknowledged the advice of the federal commis-
sioners not to deal with a state on “public business”’:
We of the Six Nations are fully sensible of the truth of
this and we think that no particular State can have a right
to treat separately, but that it belongs only to the United
States. In consequence of this when the Governor of New
York sent a message to us, to assemble us here in order to
treat with that State, we requested that it might be a
continental treaty as we perceived that the United States
formed one general plan.
Wayne MSS, supra.
Appellants contend that all of this evidence at least raises a
question whether the Indians understood the federal commis-
sioners to be assuring them that approval of Congress was
needed not only for state peace treaties but also for state land
purchases. Furthermore, they argue, “[h]ow the words of the
treaty were understood by [the Indians] rather than their
critical meaning. should form the rule of construction,” Worces-
ter v. Georgia, supra, 6 Pet. at 582 (McLean, J., Concurring ),
and that ambiguities should be resolved in favor of the Indians,
Winters v. United States, 207 U.S. 564, 576, 28 S.Ct. 207, 211,
52 L.Ed. 340 (1908). We agree with these principles but
conclude that they do not support the appellants’ contention.
What are sought to be construed in favor of the appellants are
not ambiguous terms of a treaty but ambiguous statements
made in the course of negotiating a treaty. If ambiguities in
such remarks always required resolution in favor of alleged
understandings on the part of Indians, there would be virtually
ean ania alae
39a
no limit to how far Indian treaties would be extended. We are
satisfied, as was Judge McCurn, that the evidence assembled in
the District Court does not show that the Six Nations were told
that ordinary land purchases by New York, separate from
negotiations of a peace treaty, required approval of Congress.
Indeed, one of the clearest indications that the Oneidas had no
such understanding is their readiness to make the first of the
two sales challenged in this litigation, a sale made without
congressional assent just eight months after the Treaty of Fort
Stanwix. In any event, we also agree that Article II of the
Treaty, securing the Oneidas in the possession of their land,
would have to be not merely construed but virtually rewritten to
prohibit them from selling their land to New York without the
approval of Congress. The Treaty claim was properly rejected.
IV. The Claim Under the Proclamation of 1783
On September 22, 1783, the Confederal Congress issued a
proclamation prohibiting
all persons from making settlements on lands inhabited or
claimed by Indians, without the limits or jurisdiction of any
particular State, and from purchasing or receiving any gift
or cession of such lands or claims without the express
authority and directions of the United States in Congress
assembled
25 JCC 602 (Sept. 2; 4763) (emphasis added). Both sides
agree that the Proclamation of 1783 prohibited purchases,
without assent of Congress, of Indian lands outside the borders
of the States. Appellants contend that the Proclamation
applied, in addition, to land within state borders occupied by
unassimilated Indians. They further contend that even if the
Proclamation applied only to land beyond state borders, the
land purchased by New York in 1785S was not at that time
within the fixed limits of New York The District Court
rejected th’s claim, as do we.
The terms of the Proclamation appear to defeat the
appellants’ claim, though there is a plausible textual argument
in their favor. The operative words of the Proclamation appear
40a e
to prohibit purchases of Indian lands “without the limits or
jurisdiction of any particular State.” Appellants contend, how-
ever, that the quoted phrase modifies its immediate antecedent
“Indians” and not “lands,” which appears five words earlier.
There is a rule of construction that qualifying phrases are
generally” to be applied to words “immediately precedent”
and not to others “more remote.” United States v. Ven-Fuel,
Inc., 758 F.2d 741, 751 (Ist Cir.1985). For several reasons,
however, it is clear that the phrase modifies the word “lands.”
First, the Proclamation recites that it is adopted pursuant
to the authority of Article 1X(4); the Legislative Rights Proviso
is quoted in full. Since Congress did not have the power to
prohibit all purchases of Indian land within state borders, it
should not be understood to have attempted to do so in the
Proclamation.
Second, the preliminary draft of the Proclamation placed
the phrase “within the United States and without the bound-
aries of any particular State” immediately adjacent to the word
“lands,” 24 JCC 505-06 (Aug. 13, 1783), and there is no
indication that the rearrangement of wording was intended to
effect any substantive change, much less the significant change
urged by the appellants.
Third, contemporaneous correspondence of the delegates
indicates that they understood the Proclamation to apply only
to lands outside the borders of a state. See, e.g., Letter of the
Virginia Delegates to Governor Benjamin Harrison (Oct. 4,
1783), reprinted in 7 The Papers of James Madison 367
(Rutland et al. eds. 1962). There can be no doubt that an
effort to issue a proclamation barring state purchases of Indian
lands within state borders would have set off a storm of protest
within the Confederal Congress. As it happened, the Proclama-
tion was a relatively non-controversial matter.
As a final argument, the appellants contend that even if the
Proclamation applied only to land within state borders, New
York’s 1785 purchase violated the Proclamation because the
acquired lands were not at that time within the borders of New
Pas
4la
York. But, as the District Court concluded, based on abundant
contemporaneous documentation and maps, New York’s ces-
sion of its claimed Western lands fixing New York’s Western
boundary was complete in 1782, and the lands purchased in
1785 were well to the east of that Western boundary. See
Massachusetts v. New York, 271 U.S. 65, 81, 46 S.Ct. 357, 358,
70 L.Ed. 838 (1926). The fact that Massachusetts’s lingering
dispute with New York concerning the boundary was not
resolved (in New York’s favor) until the Treaty of Hartford on
December 11, 1786, does not detract from the conclusion that
the purchased land was within New York’s borders in 1785.
Conclusion
The historical evidence indicates that the Articles of Con-
federation, the 1784 Treaty of Fort Stanwix, and the Proclama-
tion of 1783 are properly construed not to prohibit, or require
the assent of Congress for, New York’s 1785 and 1788 pur-
chases of Indian land from the Oneidas. The appellants’ claims
were properly dismissed by the District Court as legally in-
sufficient, and the judgment of the District Court is affirmed.
42a
ONEIDA INDIAN NATION OF NEW York, et al., Plaintiffs,
V.
STATE OF NEw York, et al., Defendants.
ONEIDA INDIAN NATION OF WISCONSIN, et al., Plaintiffs,
Vv.
THE STATE OF NEw York, et al., Defendants,
Nos. 78-CV-104, 79-CV-798.
United States District Court,
N.D. New York.
Nov. 19, 1986.
As Amended Dec. 10, 1986.
Native American Rights Fund, Washington, D.C., for
plaintiff Oneida Indian Nation of Wisconsin; Arlinda Locklear,
Francis Skenadore, Oneida, Wis., of counsel.
Daan Braveman, Gary T. Kelder, Syracuse, N.Y., for
plaintiff Oneida of the Thames Band.
Bertram Hirsch, Floral Park, N.Y., for Oneida Indian
Nation of New York.
Indian Law Resources Center, Washington, D.C., for
plaintiff-intervenors, The Houdenosaunee and certain Con-
stituent Nations; Robert Coulter, Curtis Berkey, of counsel.
Goodwin Proctor & Hoar, Boston, Mass., Hiscock &
Barclay, Syracuse, N.Y., Sherman & Sterling, Huber Lawrence
& Abell. New York City, Robert Abrams, Atty. Gen., State of
N.Y., Albany, N.Y., for defendants; Allan van Gestel, Jeffrey
C. Bates, Boston, Mass., Richard Hughes, Syracuse, N.Y.,
Arnold Bauman, David Marks, Howard Schmertz, New York
City, David Roberts, Asst. Atty. Gen., Albany, N.Y., of counsel.
43a
MEMORANDUM-DECISION & ORDER
McCurn, District Judge.
Plaintiffs and plaintiff-intervenors in the present actions are
the descendants and successors-in-interest to the Oneida Indian
Nation (Oneidas). They claim title to and the right to possess
approximately six million acres of land in central New York.
Plaintiffs base their claim on aboriginal title confirmed by
United States treaty. The land at issue extends in a fifty to sixty
mile wide strip from the Canadian border to the Pennsylvania
border. The Oneidas sold the land in question to New York
State in two treaties, the Treaty of Fort Herkimer in 1785 and
the Treaty of Fort Schuyler in 1788. Both treaties were
concluded before the United States Constitution’ and the
Indian Trade and Intercourse Act ( Nonintercourse Act )2 were
enacted while the Articles of Confederation were in effect.
Plaintiffs claim that the 1785 and 1788 treaties with New York
are invalid under the Proclamation of 1783, and the Treaty of
Fort Stanwick in 1784 between the United States government
and the Six Nations Iroquois Confederacy.
Defendants’ motions to dismiss are presently before the
court on remand from the Second Circuit. In the Fall of 1984,
the court held an evidentiary hearing on the meaning of the
Articles of Confederation, and the treaties at issue pursuant to
the Second Circuit’s instructions in Oneida Indian Nation of
New York v. State of New York, 691 F.2d 1070 (2d Cir. 1982).
‘Article I, section & cl. 3 of the United States Constitution
provides in part, “The Congress shall have the power (t)o regulate
Commerce .. . with the Indian Tribes.”
2 The Indian Trade and Intercourse Act of 1790, Act of July 22,
1790, ch. 33 § 4, 1 Stat. 137, more commonly known as the
Nonintercourse Act, and its subsequent amendments forbid the sale of
Indian lands without the federal government’s approval. The present
Nonintercourse Act is codified at 25 U.S.C. § 177.
3 The facts of these actions are set forth in detail in the court’s
earlier decision Oneida Indian Nation of New York v. State of New
York, 520 F. Supp. 1278 (N.D.N.Y.1981), aff'd in part and rev'd in
part, 691 F.2d 1070 (2d Cir.1982). Familiarity with the court’s prior
_ decision is assumed.
44a
After carefully considering the evidence submitted in con-
nection with the evidentiary hearing, including the testimony
and reports of the parties’ experts, primary and secondary
source documentation, the history of the period, the parties’
arguments, and the relevant case law, the court grants defend-
ants’ motions.
BACKGROUND
Plaintiffs in 78-CV-104 are the Qneida !ndian Nation of
New York and several of its members. They claim to be the
direct matrilineal descendants of the aboriginal Oneida Indian
Nation. The New York Oniedas filed their complaint on March
3, 1978, against New York State; the State Thruway Authority;
various state agencies, departments, and officials; and a pro-
posed defendant class. An amended complaint was filed on
July 3, 1980. Plaintiffs in 78-CV104 have not moved to certify
the defendant class.
Plaintiffs in 79-CV-798 are the Oneida Indian Nation of
Wisconsin and the Oneida of the Thames Band, a Canadian
tribe. They also claim to be the direct successors-in-interest to
the original Oneidas. The Complaint in 79-CV-798 was filed on
December 5, 1979, against a proposed defendant class, New
York State, various state agencies and officials, the counties and
municipalities within the claim area, several businesses, and
numerous individual landowners. On March 4, 1980, the court
certified a defendant class consisting of all persons who claim
an interest in any portion of the subject land described in
plaintiffs’ complaint, with the exception of individual Oneida
Indians and persons who occupy the land as a principal place of
residence to the extent of the residence and two surrounding
acres. Oneida Indian Nation of Wisconsin v. State of New York,
85 F.R.D. 701 (N.D.N.Y. 1980). The court estimates that the
defendant class includes approximately 60,000 individuals,
businesses, and governmental entities. In 1984, the Houdeno-
saunee, also known as the Six Nations Iroquois Confederacy,
intervened as plaintiffs. Oneida Indian Nation of Wisconsin vy.
State of New York, 732 F.2d 261 (2d Cir. 1984). On February
4Sa
3, 1985, the Thames Band filed an amended complaint aligning
their claims with the Houdeosaunee’s claims. —
Plaintiffs in both actions contend that the United States
government guaranteed the Oneidas possession of their land in
the Proclamation of September 22, 1783, and the Treaty of Fort
Stanwix in 1784. They argue that the 1783 Proclamation and
the Fort Stanwix Treaty were valid exercises of the central
government’s authority under the Articles of Confederation
and/or the government’s “external sovereignty” powers. Ac-
cording to plaintiffs, the Treaty of Fort Herkimer in 1785 and
the Treaty of Fort Schuyler in 1788 between the Oneidas and
New York State are void because the central government did
not consent to the transfer of Oneida land to New York.
Plaintiffs seek a declaration that they are the owners of and
have the right to possess the land in question.4 They also
demand possession of the land claimed, the fair rental value of
the land for the period of dispossession, costs, and attorneys’
fees. In addition, plaintiffs in 78-CV104 claim interest on the
fair market rental value, the tolls that the New York Thruway
has collected for passage over Oneida land during plaintiffs’
dispossession, and a declaration of plaintiffs’ hunting and
fishing rights under the 1788 Treaty if the Treaty is not void.
By Memorendum-Decision and Order dated July 24, 1981,
and amended on September 10, 1981, the court granted
defendants’ motions to dismiss in both actions. The court held
that plaintiffs had standing to challenge the 1785 and 1788
Treaties, the action did not present a nonjusticiable political
question, and the Eleventh Amendment did not bar plaintiffs’
actions. However, the court held that plaintiffs failed to state a
claim upon which relief could be granted because under the
4In the alternative, plaintiffs claim that the 1788 Treaty was a
lease arrangement. If the court refuses to declare the 1788 Treaty
void, plaintiffs seek a declaration that they have reversionary or
beneficial interest in the land conveyed and an order directing the
State to perform its obligations under the Treaty. The Second Circuit
has affirmed this court’s holding that the 1788 Treaty was a sale and
not a lease. Oneida Indian Nation of New York, 691 F.2d at-1096.
46a
Articles of Confederation, the states had not effectively dele-
gated to the central government their authority to extinguish
Indian title within the states’ respective boundaries. Con-
sequently, Congress did not have the authority to forbid the
states from forming treaties to extinguish title to Indian land
within the states’ borders. The court also found that New
York’s conduct did not create a constructive trust, the court
could not inquire into the justness of the state’s actions, and the
Indians did not retain any rights protected under the Noninter-
course Act even if the 1788 Treaty created a perpetual lease.
Oneida Indian Nation of New York y. State of New York, 520
F.Supp. 1278 (N.D.N.Y. 1981). ~
The Second Circuit affirmed in part and reversed in part.
It agreed with this court’s determination on standing, justiciabi-
lity, the Eleventh Amendment, and plaintiffs’ rights under the
Nonintercourse Act. However, the Second Circuit remanded
the present actions with instructions to hold an evidentiary
hearing on the meaning of the Articles of Confederation and
the treaties at issue. Oneida Indian Nation of New York, 691
F.2d 1070.
Pursuant to the Second Circuit’s instructions, this court
formulated the following issues for reconsideration at the
evidentiary hearing:
(a) Whether Article IX cl. 1 of the Articles of Con-
federation included the power to make treaties with Indian
tribes, and whether the Fort Stanwix Treaty was a valid
exercise of those powers and was therefore binding on
New York State. See 691 F.2d at 1086-91.
(b) Whether the Article IX cl. | powers of Congress are
limited by the qualified power of Congress under cl. 4, to
manage Indian affairs. See 69] F.2d at 1091-92.
(c) Whether the Fort Stanwix Treaty of 1784 precluded
New York State from unilaterally extinguishing Indian utle
to tribal land located within its borders. See 691 F.2d at
1092-93.
47a
(d) Whether the Proclamation of 1783 was authorized by
Article IX, cl. 4, and whether it was meant to protect the
lands of all non-assimilated Indians, or merely those
Indians upon lands outside state borders. See 691 F.2d at
1093-95.
Oneida Indian Nation of New York, Nos. 78-CV-104, 79-CV-
798 at 4-5 (N.D.N.Y. Oct. 10, 1983)( Prehearing Order).
The evidentiary hearing was held from September 19,
1984, through October 11, 1984. The parties presented histo-
rians, political scientists, and an anthropologist as experts on
the confederal period and Indian relations. In addition to their
hearing testimony, the experts submitted reports supported by
primary and secondary sources. Defendants’ motions to dis-
miss are again ready for determination. The following con-
stitutes the court’s decision.
DISCUSSION
In Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 558-59, 8
L.Ed. 483 (1832), Chief Justice John Marshall left unanswered
the question of whether the individual states had the power to
extinguish Indian title during the confederal period. The
present motions require the court to answer this question. The
court’s inquiry begins by examining the unique and often
troubling legal relationship between the United States and the
Indian nations within its borders.
i)
A. The Doctrine of Discovery
Plaintiffs’ claim to the land is based on aboriginal title.
Aboriginal ttle is governed by the Doctrine of Discovery, a
legal fiction which the Supreme Court developed in the early
1800s. The Court created the Doctrine of Discovery to reflect
European policy toward the American Indians and to explain
the discovering nations and the native Americans’ legal rights
to native land. See e.g. Worcester, 6 Pet. 515, 31 U.S. 515:
Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 5 L.Ed. 681
48a
(1823). The doctrine provides that the “discovering nations
held fee title to (the natives’) lands, subject to the Indians’ right
of occupancy and use. As a consequence, no one could
purchase Indian land_or otherwise termimate aboriginal title
without the consent of the sovereign.” County of Oneida v.
Oneida Indian Nation, 470 U.S. 226, 234, 105 S.Ct. 1245, 1251,
84 L.Ed.2d 169 (1985). See Oneida Indian Nation of New
York State v. County of Oneida, 414 U.S. 661, 667, 94S.Ct. 772,
777, 39 L.Ed.2d 73 (1974). In McIntosh, Chief Justice
Marshall explained:
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 subject, or
by whose authority, it was made, against all other Eu-
ropean governments, which title might be consummated
by possession... . Those relations which were to exist
between the discoverer and the natives, were to be regu-
lated 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 ex-
tent, 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
49a
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 ttle to the grantees subject only to the Indian
right of occupancy.
McIntosh, 8 Wheat. at 572-74, 21 U.S. at 572-74.
Under the Doctrine of Discovery the discovering nation, in
the present actions Great Britain, had fee title to Indian land
which was good against all other discovering nations. The
Indian tribes had the right to occupy and use the land. This
right is generatly known as aboriginal or Indian title. The
tribe’s right of occupancy could only be extinguished by the
sovereign’s purchase or conquest.
The right to acquire Indian land once Indian title has been
extinguished is called the right of preemption. Generally, the
rights of extinguishment and preemption are joined. However,
they are separate powers and need not be held by the same
enuty. Fletcher v. Peck, 10 U.S. (6 Cranch) 87. 3 L.Ed. 162
(1810). See Oneida Indian Nation of New York State, 414 US.
at 667, 94 S.Ct. at 777.
Before the American Revolution Great Britain, as the
sovereign, held the right to extinguish Indian title and the right
of preemption. Initially, Great Britain allowed the individual
colonies to purchase Indian land and extinguish Indian title
within their charter limits. However, widespread encroachment
on Indian land, mismanagement of Indian trade, and hostilities
with the French created the need for a centralized Indian
policy, particularly for acquiring Indian land. Horseman, Ex. 1.
p. 1. On October 7, 1763, Great Britain issued a proclamation
° In this opinion the hearing exhibits are cited Ex. and the
hearing transcript Tr. . The parties’ experts are indicated by their
surnames. The experts’ written opinions were introduced into the
hearing record as exhibits. The above citation therefore refers to
Professor Horseman's written opinion which is Hearing Exhibit 1.
The primary source documents attached as exhibits to the experts’
written opinions are cited Ex. xX
ee
SOa
which prohibited the colonies from purchasing Indian land or
trading with the Indians without the Crown’s authority. The
Crown appointed two “Superintendents of Indian Affairs” to
regulate dealings with the Indians and prohibited white settle-
ment west of the Appalachians. Proclamation of 1763 (Oct. 7
1763), reprinted in 3 W. Washburn, The American Indian and
the United States 2135-39 (1973), Ex. D2, X I. Great Britain
thus retained and exercised both the right to extinguish Indian
title and the right of preemption just betore the colonies
declared their independence.
During the pre-revolutionary period, the colonies were
expanding their settlements and trying to consolidate their
charter land claims. They saw the Proclamation of 1763 and
Great Britain’s centralization of Indian affairs as an attempt to
give favored traders and land speculators western lands to the
colonies’ detriment. Like the Stamp Act and Quartering Act,
the colonists considered the Proclamation of 1763 an unwar-
ranted intrusion into colonial affairs. Great Britain’s central-
ization of Indian affairs eventually became one of the griev-
ances which led to the American Revolution. Ketchum, Ex.
D2, p. 1; Tr. pp. 0521-22, 0556-57
B. Source of Congress’ Authority During the Confederal Period
Before the Articles of Confederation were ratified, Con-
gress acted as a revolutionary government. As such, it does not
fit neatly into the legal theories of sovereignty. Although it 1s
generally believed that Great Britain’s sovereign powers passed
to the individual colonies when the colonies declared their
independence, the Supreme Court has recognized that certain
external sovereign powers vested in the central government.
As a result of the separation from Great Britain by the
colonies, acting as a unit, the powers of external sover-
eignty passed from the Crown not to the colonies severally,
but to the colonies in their collective and corporate capac-
ity as the United States of America. Even before the
Declaration, the colonies were a unit in foreign affairs,
acting through a common agency—namely, the Continen-
Sla
tal Congress, composed of delegates from the thirteen
colonies. That agency exercised the powers of war and
peace, raised an army, created a navy, and finally adopted
the Declaration of Independence.
United States v. Curtiss-Wright Export Corp., 299 U.S. 304,
316-17, 57 S.Ct. 216, 219, 81 L.Ed. 255 (1936).
During the pre-confederal period, and even before the
states had enacted their individual constitutions, Congress
controlled foreign affairs and matters of war and peace. As
noted above, the United States in Congress assembled declared
independence from Great Britain, made alliances with foreign
nations, and established an army and navy. Congress also dealt
with the Indian nations, at least in matters concerning war and
peace. Horsman, Ex. !, pp. 7-8. It established Indian
departments to handle Indian affairs and to advise Congress.
At the beginning of the conflict with Great Britain, Congress
sent the Six Nations Iroquois Confederacy a request to remain
neutral. Speech to the Six Nations, II Journals of the Continen-
tal Congress 177, 182 (July 13, 1775), Ex. 2, X 10. See also
Resolution to Seek Indian Neutrality, X Journals of the Conti-
nental Congress 110-11 (Feb. 2, 1778), Ex: 2, X 17. When the
Senecas, Mohawks, Onondagas, and Cayugas allied with Great
Britain, congress enlisted the Oneida and Tuscaroras’ help and
waged war against the hostile tribes.
The fact that Congress had certain powers of external
sovereignty during the pre-confederal period, whether directly
from Great Britain or indirectly from the colonies’ implied
consent, does not mean, however, that fee title to Indian land
and the right to extinguish Indian title passed to congress. The
Supreme Court has stated in dicta:
It is true the United States never held fee title to
Indian lands in the original States as it did to almost all the
rest of the continental United States and thet fee title to
Indian lands in these States, or the pre-emptive right to
purchase from the Indians, was in the State... .
52a
Oneida Indian Nation of New York State, 414 U.S. at 670, 94
S.Ct. at 778.6 See also Fletcher, 6 Cranch at 141-42, 10 US. at
141-42; Mohegan Tribe v. Connecticut, 638 F.2d 612, 625 (2d
Cir. 1980), cert. denied, 452 U.S. 968, 101 S.Ct. 3124, 69
L.Ed.2d 981 (1981); Horsman, Tr. 1016-17 (powers of pre-
emption and extinguishment “melded” in the states prior to
Articles of Confederation ).
The treaties at issue in the present actions were signed after
the Articles of Confederation were ratified. The authority to
govern in this country has always come ultimately from the
people by either an express or implied grant. See Penhallow v.
Doane’s Administrators, 3 U.S. (3 Dallas) 54, 80, 103, 109, 1
L.Ed. 507 (1795); Ware v. Hylton, 3 U.S. (3 Dallas) 199, 231-
32. | L.Ed. 568 (1796); Declaration of Independence (July 4,
6 The above quote is part of the Supreme Court’s discussion of
the federal government’s exclusive right to extinguish Indian ttle
under the Constitution and Nonintercourse Act. The Court begins its
discussion by stating:
It very early became accepted doctrine in this Court that although
fee title to the lands occupied by Indians when the colonists
arrived became vested in the sovereign—first the discovering
European nation and later the original States and the United
States—a right of occupancy in the Indian tribes was nevertheless
recognized. That right, sometimes called Indian title and good
against all but the sovereign, could be terminated only by
sovereign act. Once the United States was organized and the
Constitution adopted, these tribal rights to Indian lands became
the exclusive province of the federal law.
Oneida Indian Nation of New York State, 414 U.S. at 667, 94 S.Ct. at
777. The full text of the above quote provides:
The rudimentary propositions that Indian title is a matter of
federal law and can be extinguished only with federal consent
apply in all of the States, including the original 13. It is true that
the United States never held fee title to the Indian Lands in the
original States as it did to almost all the rest of the continental
United States and that fee title to Indian lands in these States, or
the pre-emptive right to purchase from the Indians, was in the
State. Fletcher v. Peck, 6 Cranch 87, 3 L.Ed. 162 (1810). But this
reality did not alter the doctrine that federal law, treaties, and
statutes protected Indian occupancy and that its termination was
exclusively the province of federal law.
Id. at 670, 94 S.Ct. at 778.
53a
1776), reprinted in U.S.C.A. Const. Art. 1 § 1—Art. 1 § 8 cl. 3
(stating, “That to secure these rights [life, liberty and the
pursuit of happiness], Governments are instituted among
Men, deriving their just powers from the consent of the
governed. . . .”); Art. of Confed., art. XIII, reprinted in
U.S.C.A. Const. Art. | § 1—Art. 1 § 8 cl. 3, Ex. D2 X 4
(signatory clause stating, “Know ye that we the undersigned
delegates, by virtue of the power and authority to us given for
that purpose, do by these presents, in the name and in behalf of
our respective constituents, fully and entirely ratify and confirm
each and every of the said articles of confederation and
perpetual union... .”); Faulkner, Ex. C, pp. 35-37; Rakove, Ex.
E2, pp. 15-16; Scigliano, Ex. B, pp. 5-7. No matter what
congress’ powers were before the Articles of Confederation, the
Articles’ ratification redefined the central government, essen-
tially creating a new government. The court must therefore
look to the Articles of Confederation to determine what powers
congress possessed
C. Allocation of Power under the Articles of Confederation
Although interpreting the Articles of Confederation is
more difficult than contemporary statutory construction because
of the passage of time, the approach is the same. To determine
the Articles’ meaning the court must examine the Articles’
language, the legislative history, the interpretations that the
period’s statesmen and historical experts have given the Arti-
cles, how the Articles were applied, the period’s general history,
and relevant secondary sources.
The colonies attempted to establish a unique form of
government under the Articles of Confederation. Their rebel-
lion against Great Britain was a rebellion against too much
central government. Preserving the individual states’ rights was
therefore extremely important to the congressional delegates.
However, they also realized that thirteen separate governments
could not effectively wage war against a major European power
Or gain recognition from the European community. The
thirteen states needed to function as a single unit in foreign
relations and matters of war and peace. The framers of the
—
S4a
Articles of Confederation attempted to create a nation where
the individual states retained power over internal affairs and the
central government had power over external affairs, including
foreign relations and war and peace. Rakove, Ex. E2, p. 17.
Having just thrown off too much central government,
however, the individual states were not about to give the new
government too much power, even in external matters. They
tended to retain authority over essential areas necessary for the
central government to effectively exercise its delegated power.
For example, the United States in Congress assembled was
given exclusive power over war and peace, but the states
retained the power of taxation. Art. of Confed., art. VIII cl. 2.
Congress also had exclusive power to form treaties and al-
liances with foreign nations, but commerce treaties could not
prohibit the states from imposing “imposts and duties on
foreigners” or “prohibiting the exportation or importation of
any species of goods or commodities whatsoever.” Art. of
Confed.. art. IX cl. 1. As a result, congress often lacked
essential enforcement powers, and the states tended to pursue
their own interests to the detriment of the whole. Eventually,
the United Sates was forced to create a new government with
greater centralized powers “in order to form a more perfect
union.
Article II of the Articles of Confederation provides for the
general allocation of powers and reflects the congressional
delegates’ desire to protect the states’ rights. Article II provides:
Each State retains its sovereignty, freedom and _in-
dependence, and every power, jurisdiction and right, which
is not by this confederation expressly delegated to the
United States, in Congress assembled.
Art of Confed., art. I]. Congress thus possessed only those
powers which the Articles of Confederation expressly delegated
to it. Lerner, Ex. A, p. 23; Tr. 96.
Article XIII of the Articles provides: Every State shall
abide by the determinations of the United States in
Congress assembled, on all questions which by this con-
SSa
federation are submitted to them. And the articles of this
confederation shall be inviolably observed by every State,
and the Union shall be perpetual; nor shall any alteration
at any time hereafter be made in any of them; unless such
alteration be agreed to in a Congress of the United States,
and be afterwards confirmed by the Legislatures of every
State.7
Plaintiffs argue that Article XIII functions as a supremacy
clause. Defendants disagree. Defendants’ expert Professor
Rakove maintains that Article XIII is merely wishful thinking.
The Second Circuit, however, has held that the central govern-
ment’s lack of power to enforce its authority under the Articles
is irrelevant. Oneida Indian Nation of New York, 691 F.2d at
lO9S n. 21. Although the confederal government was a
sovereign entity of expressly limited powers, its powers would
have been a nullity if the individual states’ authority superceded
congress’ authority in those areas expressly delegated to the
central government. Accordingly, Article XIII made congress’
authority over its expressly delegated powers paramount to the
states’ authority. See Lerner, Tr. 104 (conceding on cross-
examination that Article XIII made the powers expressly
delegated to congress mandatory); Oneida Indian Nation of
Vew York, 691 F.2d at 1091.
D. Indian Power under the Articles of Confederation.
Congress’ Indian powers are found in Article IX of the
Articles of Confederation. Clause 4 which deals specifically
with Indian affairs, provides:
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
’? The signatory clause also provides, “*( T )he articles thereof shall
be inviolably observed by the States we re(s)pectively represent, and
that the Union shall be perpetual.” Art. of Confed. art. XIII.
® For example, congress’ war and peace and treaty-making
powers made foreign treaties binding upon the states. The fact that
some of the states violated the Treaty of Paris and congress was
powerless to enforce the treaty, did not legitimize the states’ actions.
S6a
members of any of the States, provided that the legislative
right of any State within its own limits be not infringed or
violated.
Clause | gives ‘The United States in Congress assembled . . .
the sole and exclusive right and power of determining on peace
and war, except in the cases mentioned in the sixth article. . . .”
The exception in Article VI cl. 5 provides that “(n)o State shall
engage in any war without the consent of the United States in
Congress assembled, unless such State be actually invaded by
enemies, or shall have received certain advice of a resolution
being formed by some nation of Indians to invade such State,
and the danger is so imminent as not to admit of a delay, till the
United States in Congress assembled can be consulted. . . .”
Contemporary historical records reveal that the extent of
congress’ Indian powers was a source of considerable confusion
and was hotly debated throughout the confederal period. The
historical events surrounding the Articles of Confederations’s
enactment and Indian policy at that time provide insight into
the framers’ intent. Plaintiffs contend that Indian relations were
considered external in nature and were given to congress as part
of its external sovereign powers. Defendants argue that Indian
affairs were perceived as internal; therefore, Indian relations
within the states’ borders were left to the individual states.
Neither party is correct. The Indian tribes were not treated
solely as foreign nations or as citizens of the states. What 1s
most striking about Indian relations during this period ts that
they were unique. The Supreme Court’s conflicting descriptions
of the Indian tribes in its early decisions emphasize their unique
status. See e.g. Worcester, 6 Pet. at 559, 31 US. at 559;
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 15-17, 8 L.Ed.
25 (1831). See also Horseman, Tr. 987.
The Indian tribes, like those comprising the Six Nations
Iroquois Confederacy, were independent, sovereign entities.
They governed themselves and were generally not subject to
state or national law. Their lands crossed state boundaries, and
they were capable of waging war on the white settlements at
great expense to the fledgling nation. However, the Indians did
not own fee title to their land. They had only the right of
S7a
occupancy which the sovereign could extinguish. Moreover,
congress did not ratify Indian treaties like foreign treaties.
Report of Senator Carroll to the Senate on Ratification of the
Fort Harmar Treaty of 1789 (Sept. 18, 1789), reprinted in |
American State Papers, Indian Affairs, 59 (Richardson ed.
1932), Ex. BX 12. Faulkner, Ex. C, ». 5; Rakove, Ex. E2. pp.
84, 104-05; Tr. 786-88. Perhaps the best description of the
Indian tribes’ unique status is found in Cherokee Nation. The
Supreme Court described the Indians nations as “domestic
dependant nations”. Cherokee Nation, 5 Pet. at 17. 30 US. at
17. Indian relations therefore did not fall neatly within either
congress’ external powers or the states’ internal sovereignty. As
a result, both the central government and the individual states
treated with the Indians both before and after the Articles of
Confederation.
Indian policy was based on two overriding concerns, war
and land. Horsman, Tr. 991. As noted above, the Indian tribes /
were powerful, independent “nations”. Neither the new goy-
ernment nor the individual states had the economic resources
and manpower to engage in a major Indian war. During the
pre-confederal period congress’ primary concern was keeping
the Indians from joining the British in the Revolutionary War.
Afterwards, congress feared that incursions on Indian land and
fraudulent dealings with the Indians would induce the tribes to
unite against the nation in an Indian war. Congfess also feared
that the Indians would again ally with the British who refused
to vacate their forts at Niagara and Oswego after the Treaty of
Paris was signed. Moreover, continued Indian hostilities would
hinder settlement of the national domain. The states were even
less able to absorb the_cost of Indian/wars.
The states were also engaged/in a major controversy over
the Western lands. The “landed states”, including Massachu-
setts, Virginia, North Carolina Georgia, and Connecticut, each
claimed title under their chafters to the lands “westward to the
South Seas”. New York was also a “landed state”. It claimed
western lands under Great Britain’s treaties with the Six
Nations Iroquois Confederacy. In these treaties the Six Nations
S&a
placed themselves “under the Crown’s protection.” The “land-
less states” New Hampshire, Maryland, Rhode Island, New
Jersey, Pennsylvania, Delaware, and South Carolina had fixed
borders under their charters. They wanted to limit the landed
states’ size to more realistic dimensions and to establish a
national domain in the West.2 These lands were necessary to
finance the nation’s war debt and to compensate the soldiers
who had fought in the Revolutionary War. The ability to
obtain western land from the Indians by cession or purchase
was essential to establishing a national domain. Peace on the
frontiers was also necessary to settle the western lands.
The western lands’ dispute was one of the primary reasons
why the Articles of Confederation, which were submitted to
congress in 1777, were not ratified until 1781. Horsman, Ex. |,
p. 10. Maryland, a landless state, did not sign until New York
ceded its western land claim to congress in February 1781.
Virginia and Connecticut offered their land cessions shortly
thereafter although congress refused to accept Virginia’s cession
until 1784. Georgia did not make its cession until after the
Constitution was enacted.
Overlapping land claims also created conflict among the
landed states. They attempted to consolidate their claims by
established settlements in disputed areas. See Onuf, Ex. 3, pp.
2, 22-23, 25-26. The ability to acquire Indian land was
essential. In 1783, Massachusetts revived its charter claim to
western New York. The dispute was not settled until the Treaty
of Hartford in 1786.
Moreover, land speculating companies and private ven-
turers were buying large tracts of Western land. These
purchases threatened both Congress’ plans for a national
domain and war with the Indians. See Letter of George
Washington to James Duane (Sept. 7, 1783), reprinted in 27
The Writings of George Washington, 133-40, (J. Fitzpatrick ed.
1938) Ex. 3 X 94; Letter of Phillip Schuyler to the President of
9The proposed national domain included the Ohio and Mis-
sissippi River Valleys.
S9a
Congress ( July 29, 1783), reprinted in 3 Papers of the Continen-
tal Congress, 601-08, Ex. 3 X 93. These events substanually
influenced the Articles of Confederation. national and state
Indian policy, and the treaties at issue in the present actions
E. Article 1X cl. 4
Article IX cl. 4 of the Articles of Confederation contains
congress’ primary authority over Indian affairs. It gives the
United States in Congress assembled “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 a State within its own
limits be not infringed or violated.” Although clause 4 can be
viewed primarily as an “Indian commerce clause”, see J.
Madison, The Federalist #42 329, 334 (Jan. 22, 1788), Ex. B X
3 (describing clause 4 as regulating commerce with the In-
dians ), “managing all affairs with the Indians” is broad enough
to include making war and peace with them. Congress certainly
believed that it had authority under clause 4 to deal with Indian
hostilities. See e.g. Proclamation of 1783, XXV Journals of the
Continental Congress 602 (Sept. 22, 1783), Ex. E3 X 89 (citing
Article IX cl. 4 as authority ).
However, the “not members” provision and the legislative
right proviso limit congress’ “sole and exclusive” clause 4
powers. The final version of clause 4 was a compromise
between the landed and landless states in their dispute over the
western lands. The congressional delegates intentionally made
the limitations on congress’ clause 4 powers ambiguous to
achieve a consensus. See Worcester, 6 Pet. at 558-59, 31 U.S. at
558-59 (provisions were ambiguous): J. Madison, The Feder-
alist # 42 at 334, Ex. B X 3 (language “obscure and con-
tradictory”). The reservation of the states’ rights also reflects
the delegates’ concern for protecting the states’ authority
against too much centralization.
The legislative history provides insight into the framers’
intent. Benjamin Franklin’s 1775 draft of the Articles of
Confederation gave congress complete control over Indian
60a
affairs. No colony could engage in an offensive Indian war
without congressional consent. Congress was to form an
alliance with the Six Nations Iroquois Confederacy, and no
private person or colony could purchase Indian land. Only the
United States in Congress assembled could contract for Indian
land and only for the benefit of all the colonies. Benjamin
Franklin’s Articles of Confederation, II Journals of the Conti-
nental Congress 195-99 (July 21, 1775), Ex. E2 X 8.
Franklin’s 1775S plan was never submitted to congress, but
John Dickinson used it in drafting his version of the Articles.
The Dickinson Draft provided that no colony could engage in
war without congress’ consent unless it was “actually invaded
by Enemies or shall have received certain advice of a Resolu-
tion being formed by some Nation of Indians to invade such
Colony or Colonies, and the Danger is so imminent, as not to
admit a Delay till the other Colonies can be consulted.”
Dickinson’s Draft of the Articles of Confederation art. XIII, V
Journats of the Continental Congress 546-54 (July 12, 1776),
Ex. C X 6A. Congress was to form a “perpetual Alliance,
offensive and defensive” with the Six Nations and “other
neighbouring Nations of Indians.” It would also set the states’
boundaries. Until the geographical l:mits of the states were
ascertained, no private person or colony could purchase Indian
land. After congress determined the colonies’ limits, only
congress would be able to purchase Indian land outside of the
colonies’ boundaries. Dickinson’s Draft of the Articles of
Confederation, art. XIV, XVIII, Ex. C X 6A. Article XVIII also
gave the United States in Congress assembled “sole and
exclusive Right and Power of determining on Peace and War,
except in the Cases mentioned in the Thirteenth Article (emer-
gency Indian attacks)” and “exclusive Right and Power of. . .
managing all Affairs with the Indians.” By giving congress the
exclusive right to purchase Indian land outside the states after
the states’ limits were determined, the Dickinson Draft implies
that the states could purchase Indian land within their limits
once those limits were fixed.
Dickinson’s Draft was submitted in July, 1776. — the
Committee of the Whole eliminated the language which au-
6la
thorized congress to set the states’ borders and to purchase land
outside of the states. Congress’ “exclusive Right and Power of
.... Regulating the Trade, and managing all Affairs with the
Indians” was rephrased and limited to Indians “not members of
any of the States.”
On October 27, 1777, two amendments were proposed.
The first would have eliminated “not members of any of the
States” and substituted, “not residing within the limits of any of
the United States.” This proposal would have placed a geogra-
phical limit on congress’ power. Congress would only be able
to manage all Indian affairs, including war and peace, outside
of the states” borders.
The second proposal would have eliminated the entire
paragraph and given congress the right of “managing all affairs
relative to war and peace with all Indians not members of any
particular State, and regulating the trade with such nations and
tribes as are not resident within such limits wherein a particular
State claims, and actually exercises jurisdiction.” IX Journals of
the Continental Congress 841, 844 (Oct. 27, 1777), Ex. C X7.
Assuming that “not members” means nonassimilaied Indians, 1°
congress would have war and peace powers over Indians both
inside and outside of the states. However, it would only have
authority over trade with the Indians located outside of the
states’ boundaries. The states would retain all power, except
war and peace powers, over the Indians residing within their
borders.
Congress rejected both these amendments. Instead, it
accepted a compromise which retained the previous language
and added the legislative proviso. Congress was given the
power to “regulate trade and manage 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.” IX Journals of the Continental Congress
844, 845 (Oct. 28, 1777), Ex. C X7.
10 See discussion infra pp. 431-32.
62a
The various drafts of the Articles reveal several things.
First, the drafts went from greater centralized control over
Indian affairs to less centralized control. Second, congress knew
how to express geographical restrictions when it wanted. Third,
even the Dickinson Draft, which proposed the greatest central-
ization of the drafts that were actually submitted to congress,
allowed the states to purchase Indian land within their bound-
aries once those boundaries were set.
This legislative history as well as contemporary historical
interpretation and congress’ actual practice indicate that the
‘not members” language in clause 4 was not intended as a
geographical restriction on congress’ Indian authority. The
Oxford English Dictionary detines a“*member” as a “constituent
part of anything” or “*(e)ach of the individuals belonging to or
forming a society or assembly.” VI The Oxford English Diction-
ary 326 (1970). In contrast, a person ts “resident” in a place if
that person is “residing”, “dwelling or having an abode in a
‘nlace’.” Id. at 518.11 This is how James Madison understood
the ‘not members’ ” provision.'2 In his November 27, 1784,
letter to James Monroe, he states, “By Indian(s) not members
of a State, must be meant those, I conceive who do not live
within the body of the Society, or whose Persons or property
form no objects of its laws.” Letter Of James Madison to James
Monroe ( Nov. 27, 1784), reprinted in 8 Papers of Madison |56
(R. Rutland, ef al. eds.), Ex. E3 X 140.
The legisiative history discussed above supports Madison’s
interpretation. Congress rejected the two amendments which
would have expressly limited congress’ authority over Indian
affairs by geographical location. In the second proposed
amendment the “not members” restriction attached to congress’
war and peace powers was also clearly intended to give
congress greater authority over war and peace than trade,
11 To “reside” means “(t)o dwell permanently or for a consid-
erable time, to have one’s settled or usual abode, to live, im or ata
particular place.” V! Oxford English Dictionary 517 (1970).
12 The Oxford English Dictionary indicates that these usages were
prevalent during pre-confederal and confederal periods.
63a
which was restricted te Indians not “resident” within the states’
limits or jurisdiction
Moreover, congress’ actions support Madison’s under-
standing of the “‘not members” restriction. Congress did in fact
deal with Indians who dwelt within the states’ limits. The
Ordinances of 1775 and 1786 established the Indian depart-
ments which had jurisdiction over Indian territory within the
states, and the various peace treaties, including the treaties of
Fort Stanwix and Hopewell, involved Indian tribes located
within the states’ recognized borders.
Additional evidence that the “not members” provision
referred to nonassimilated Indians is found in James Duane’s
advice to New York Governor Clinton and in the Treaty of
Gaiphinton. Both Duane and the State of Georgia attempted
to use the “not members” restriction to circumvent congress’
Indian authority. Duane advised Governor Clinton that the Six
Nations “should be treated as ancient dependents of this (New
York) state, placed under its protections, with all their territo-
rial rights, by their own consent publicly manifested in solemn
and repeated treaties... . On this ground the tribes in question
may fall under the character of Members of the state with the
management of which Congress have no concern.” (emphasis
in the original). Letter of James Duane to Governor George
Clinton (n.d.), reprinted in | Proceedings of the Commissioners
of Indian Affairs 21 n. | (B. Hough 1861), Ex. CX24. The
Treaty of Galphinton between Georgia and the Creeks declared
that the Indians within Georgia’s limits “Shave been, and now
are, members of the same, since the day and date of the
constitution of the state.” Treaty of Galphinton (Nov. 12,
1785), reprinted in | American State Papers, Indian Affairs ! 7,
Ex. B X 21. Moreover, the legislative proviso would be
superfluous if the “not members” language restricted congress
to dealing with Indians outside of the states. The court finds
that the “not members” provision was intended to restrict
congress’ Article IX cl. 4 authority of “managing all affairs with
the Indians” to nonassimilated Indians.
64a
In the present actions the Six Nations, including the
Oneidas, were independent tribes. They were not assimilated
into the society of New York or any other state. See Horsman,
Tr. 1038-39. Accordingl,, the Oneidas were “‘not members of
any of the States” within the meaning of Article IX cl. 4.
The legislative right proviso is less clear. Again, James
Madison offers the most consistent interpretation of congress’
intent:
In the case of Indians of this description the only
restraint on Congress is imposed by the Legislative author-
ity of the State. If this proviso be taken in its full latitude, it
must destroy the authority of Congress altogether, since no
act of Congs. within the limits of a State can be conceived
which will not in some way or other encroach upon the
authority [of the] States. In order then to give some
meaning to both parts of the sentence, as a known rule of
interpretation requires, we must restrain this proviso to
some particular view of the parties. What was this view?
My answer is that it was to save to the State their right of
preemption of lands from the Indians. My reasons are. 1.
That this was the principal right formerly exerted by the
Colonies with regard to the Indians. 2. that it was a right
asserted by the laws as well as the proceedings of all of
them, and therefore being most familiar, wd. be most
likely to be in contemplation of the Parties. 3. that being of
most consequence to the States individually, and least
inconsistent with the general powers of Congress, it was
most likely to be made a ground of Compromise. 4. it has
been always said that the proviso came from the Virga.
Delegates, who wd naturally be most vigilant over the
territorial rights of their Constituents. (emphasis in the
original )
Letter of James Madison to James Monroe ( Nov. 27, 1784),
reprinted in 8 Papers of James Madison at 156-57, Ex. 3 X 140.
The states, particularly the landed states, considered their
right to preempt Indian land within their individual borders
their most important Indian power. The legislative right
6Sa
proviso was proposed by the Virginia delegation. Virginia, a
landed state, had strong states’ rights sentiments. Madison
describes the Virginia delegates as “most vigilant over the
territorial rights of their Constituents.” Jd. Like New York and
North Carolina, Virginia had recently enacted a state con-
stitutiona! provision prohibiting purchases of Indian land with-
out the state’s consent.'13 The proviso thus referred to the states’
constitutional provisions restricting Indian land contracts. /d.;
Rakove Ex. E2, pp. 37-38; Tr. 723-24; Ketchum, Ex. D2, pp. 6-
8. See Lerner, Ex. A, pp. 30, 32.
By the time the Articles were passed, the national domain
was imminent. The compromise would allow the states to
consolidate their land claims within their recognized limits
_while leaving the central government free to purchase land in
the national domain. Moreover, the compromise would still
permit the central government to manage Indian affairs within
the states when its actions did not interfere with the states’
legislative right. Allowing the states to control Indian land
purchases within their borders would also prevent uncontrolled
purchases by private land speculators. The legislative proviso
was thus less threatening to the landless states’ plans for
establishing a national domain and the need to prevent Indian
hostilities. See Letter of George Washington to James Duane
(Sept. 7, 1783), reprinted in 27 Writings of George Washington
133, Ex. E3 X 94.
Georgia and North Carolina did not share Madison’s
interpretation of the legislative right proviso. Their actions
indicate that they believed that congress had not authority to
deal with Indians within their respective states. See Report of a
13 New York’s constitution provides:
Be it ordained, that no purchases or contracts for the sale of
lands, made since (October 14, 1775), or which may hereafter be
made with or of any of the said Indians, within the limits of this
State, shall be binding on the said Indians, or deemed valid,
unless made under the authority and with the consent of the
legislature of this State.
N.Y. Const. art. XX XVII (April 20, 1777), reprinted in 5 Federal and
State Constitutions 2623, 2636 (F.S. Thorpe ed.), Ex. D2 X 7.
66a
Committee of the Georgia General Assembly (Feb. 11, 1786),
al American State Papers, Indian Affairs 17, Ex. B x 25 (Treaty
of Galphinton protested as ultra vires); Senate Committee,
Claims on the Lands ( March 1, 1797), reprinted in | American
State Papers, Indian Affairs 78, Ex. B X 24 (Hopewell treaties
protested as ultra vires); Letter of Benjamin Hawkins to
Thomas Jefferson (June 14, 1786), reprinted in 9 Papers of
Thomas Jefferson, 640, 641 (Boyd ed.), Ex. E3 X 154.
Georgia and North Carolina’s views were not shared by
the other states. Even New York did not contest the Fort
Stanwix Treaty once the treaty had been completed. Moreover,
Georgia and North Carolina’s interpretation would essentially
“annul” the Indian power given to congress, see Worcester, 6
Pet. at 557-58, 31 U.S. at 557-58, or at least it would restrict the
central government’s authority to Indian affairs outside of the
states. The framers of the Articles of Confederation expressly
rejected this interpretation when they rejected the October 27,
1777 amendments.
Plaintiffs argue that the legislative right proviso reserved
the states’ right of preemption but only after congress had
extinguished Indian title. As discussed hereafter, very little
support for plaintiffs’ position can be found among the contem-
poraries of the period or in congress’ actions. It is also unlikely
that the states which objected so vehemently to the Royal
Proclamation of 1763 would agree to retain the right of
preemption without the right of extinguishment. Moreover,
Madison’s interpretation gives effect to all of clause 4’s provi-
sions. The court therefore finds that the legislative right proviso
in Article IX cl. 4 retained to the states their legislative right to
purchase Indian land within the states’ limits.
The Six Nations (plaintiff/intervenors) content that the
Oneidas’ land was not located within New York’s recognized
limits because Massachusetts’s claim to western New York was
not settled until 1786. According to the Six Nations, Article IX
cl. 4’s legislative right proviso and the “not members” restric-
tion, even if they are interpreted geographically, do not apply to
the Oneidas. However, the weight of authority is against the
67a
plaintiff/intervenors. Once congress accepted New York’s
western land cession in 1782, New York’s border was, for all
practical purposes, fixed. The Oneidas were located well east of
New York’s western border. See eg. Letter of James Monroe to
James Madison (Nov. 15, 1784), reprinted in | Writings of
Monroe 46, 47 (Hamilton ed. ), Ex. C X 39; Rakove, Ex. E2, pp.
5054, 96-97; Faulkner, Tr. 451; Onuf, Tr. 1317, 1320-22,
133839, 1366; Treaty of Hartford (Dec. 11, 1786), Ex. H. See
also Ex. 1; Ex. J (historical maps).
F. Article 1X cl. 1
The other potential source of congress’ authority over the
Indians is Article IX cl. 1. Clause | gives the United States in
Congress assembled “sole and exclusive right and power of
determining on peace and war, except in the cases mentioned in
the sixth article.” The parties’ experts agree that congress had
war and peace powers over Indians. However, defendants
contend that congress’ Indian war and peace powers are part of
congress’ authority to “manage all affairs with the Indians”
under Article IX cl. 4. In support of their position, defendants
argue that congress often cited clause 4 language when dealing
with the Indians. They also emphasize that clause 4, which
deals specifically with congress’ Indian authority, is located in
the Articles with congress’ other internal powers. Congress’ war
and peace powers, however, are included in clause | which
deals with foreign affairs.
Although defendants’ argument is somewhat appealing,
the plain language of clause | indicates that congress had clause
| authority over Indians. The grant in clause | is broad; it does
not restrict congress’ authority to war and peace with foreign
nations. The only limitations on congress’ clause | powers are
in Article VI. Article VI prohibits the states from waging war
without congress’ consent “‘unless such State be actually in-
vaded by enemies, or shall have received certain advice of a
resolution being formed by some nation of Indians to invade
such State, and the danger is so imminent as not to admit of a
delay, till the United States in Congress assembled can be
consulted.” Art. of Confed. art. VI cl. 5. The fact that Article
68a
IX cl. 1 expressly incorporates Articles VI’s reference to wars
with Indians shows that the congressional delegates had Indian
war and peace in mind when they granted congress its clause |
powers. See Horseman, Tr. 985-86.
Although congress often cited clause 4 as its authority
when dealing with the Indians, the treaties which established
peace with the Indians after the Revolutionary War do not cite
Article IX cl. 4 as their authority. Moreover, clause | grants
congress the right of “determining on war and peace. See
Worcester, 6 Pet. at 557, 31 U.S. at 557. Such documents as the
Proclamation of 1783 and the Ordinance of 1786 which contain
clause 4 language do not actually “determine” on war and
peace even though they might have indirectly implicated war
and peace matters.
Article IX cl. 1 also gives congress “sole and exclusive right
and power of . . . entering into treaties and alliances. ... . .
There is no question that congress had the authority to enter
into treaties with the Indians. See Id. at 599; Oneida Indian
Nation of New York, 691 F.2d at 1089-90. However, congress’
treaty-making power in clause | was not intended to prohibit
the states from forming Indian treaties. Article 1X delegates
various powers to congress. Article VI complements Article IX
by prohibiting the states from exercising congress’ Article IX
powers. Unlike Articles IX cl. | and VI cl. 5’s delegation of war
and peace powers, neither Article IX cl. 1 nor Article VI’s
treaty-making provisions contains any reference to Indian
treaties. Article VI merely prohibits the states from entering
into treaties with foreign nations or other states. The provision
which follows and limits congress’ sole and exclusive treaty-
making power under Article IX cl. 1 deals with commerce
treaties. Indian commerce, however, is governed by Article 1X
cl. 4. The structure and content of Article IX cl. | and IV
indicate that the framers were not contemplating Indian treaties
in clause 1. Because congress treated Indian treaties differently
from foreign treaties, the omission is not unusual. Moreover, if
clause 1 prohibited all Indian treaties except those made by
congress, the powers reserved to the states in Article IX cl. 4
69a
would be a nullity. In actual practice, both congress and the
states formed treaties with the Indians during the confederal
period. Accordingly, it follows that Article IX clause | did not
prohibit the states from entering into treaties with the Indians,
except war and peace treaties.
G. Views of Contemporary, Historical Statesmen
The fact that Article IX cl. 1 gave the central government
exclusive power of “determining on peace and war” does not
mean that the states also gave congress the right to extinguish
Indian title within the states’ borders or to prohibit the states
from purchasing instate Indian land, at least where the states’
purchase did not directly interfere with congress’ determination
on peace and war.'4 After struggling to protect their legislative
right in clause 4, the landed states would hardly be willing to
cede that right in Article IX cl. 1. As noted above, the
delegation of Indian powers caused considerable debate during
the confederacy. The views of the leading statesmen indicate
that the states retained their power to purchase instate Indian
land under the Articles of Confederation.
George Washington had a major influence in shaping
Indian policy during the confederal and post-confederal peri-
ods. His views on state and congressional Indian authority
during the confederacy are expressed in two documents. The
first was written in 1783, before the Proclamation of 1783 and
the Fort Stanwix Treaty. The second was written in 1790, after
the Constitution was enacted.
Washington’s September 7, 1783, letter to James Duane,
Chairman of the congressional advisory committee to the
'4 One of the issues that the Second Circuit remanded is whether
the limiting language in Article IX cl. 4 restricted congress’ Article IX
cl. | powers. The court finds no evidence that the “not members”
language and the legislative right proviso in clause 4 was incorporated
either expressly or impliedly into clause 1. However, as hereafter
discussed, the court finds that the states did not intend to give congress
the right to prohibit them from purchasing Indian land within their
limits when the states gave congress its clause | power.
70a
Commander in Chief, influenced both the Proclamation of 1783
and the Treaty of Fort Stanwix. It advised congress on Indian
policy and recommended that congress establish peace with the
Indian. At that time, the United States was still technically at
war with the Indians because the Treaty of Paris did not include
the Indian tribes. Like the other statesmen of the period,
Washington did not question whether the settlers should even-
tually take over the Indians’ lands. He was concerned about
how the settlement would be achieved. Washington considered
speculators’ attempts to purchase large tracts of Indian land
and the plans of some states, including New York York, to
expel the tribes from their borders a threat to establishing both
peace and a national domain. In his letter to Duane, Washing-
ton advocates orderly settlement of the land. He writes, “No
purchase (of Indian land) under any pretense whatever should
be made by any other authority than that of the sovereign
power, or the Legislature of the State in which such lands may
happen to be.” (emphasis added ) Letter of George Washington
to James Duane (September 7, 1783), reprinted in 27 Writings
of George Washington at 137, Ex. E3 X 94.
Washington’s reply to Seneca Chief Cornplanter in 1790
was written while he was President under the Constitution. The
Senecas had complained about the Treaty of Fort Stanwix and
asked the new government to give back some of their ceded
land. Cornplanter also complained about certain land pur-
chases. In his reply Washington explains the difference in the
states’ powers under the Constitution and the Articles of
Confederation:
I am not uninformed, that the Six Nations have been led
into some difficulties, with respect to the sale of their lands,
since the peace. But I must inform you that these evils
arose before the present Government of the United States
was established, when the separate States, and individuals
under their authority, undertook to treat with the Indian
tribes respecting the sale of their lands. But the case is now
entirely altered; the General Government, only, has the
Tla
power to treat with the Indian nations, and any treaty
formed, and held without its authority, will not be binding.
Reply of the President of the United States to the Speech of the
Cornplanter, et al, (Dec. 29, 1790), reprinted in 4 American
State Papers, Indian Affairs 142, Ex. D2 X 12.
Washington then analyzes the validity of two land pur-
chases made after the Treaty of Fort Stanwix:
Hear well, and let it be heard by every person in your
nation, that the President of the United States declares.
that the General Government considers itself bound to
protect you in all the lands secured to you by the treaty of
Fort Stanwix, the 22d of October, 1784, excepting such
parts as you may since have fairly sold, to persons properly
authorized to purchase of you. You complain that John
Livingston and Oliver Phelps, assisted by Mr. Street, of
Niagara, have obtained your lands, and that they have not
complied with their agreement. It appears, upon inquiry of
the Governor of New York, that John Livingston was not
legally authorized to treat with you, and that every thing
that he did with you have been declared null and void. so
that you may rest easy on that account. But it does not
appear, from any proofs yet in possession of Government.
that Oliver Phelps has defrauded you.
Id. Washington tells Cornplanter that the federal government
is bound by the Treaty of Fort Stanwix to protect the Indians’
land except for the land that they have “fairly sold” to persons
authorized to purchase from them. Washington then looks to
the state to determine whether the purchases in question were
valid. Because New York had not “legally authorized” Liv-
ingston’s purchase, it was void.
Washington’s writings reveal that Washington believed,
both during the confederacy and afterwards, that under the
Articles of Confederation the states could purchase Indian land
within their borders. See Ketchum, Ex. D2, pp. 11-14; Tr.
0536-41; Faulkner, Ex. C, pp. 45, 58-59. The fact that congress
72a
could not control these purchases was one of the “evils” that the
Constitution “entirely altered.”
James Monroe and James Madison’s correspondence con-
cerning the Fort Stanwix peace negotiations concurs with
Washington’s views. Before the national negotiations, New
York attempted to obtain a cession or purchase of land from
the Six Nations. When the negotiations failed, Governor
Clinton instructed New York observers at the Fort Stanwix
Treaty to disrupt the national treaty if the treaty would infringe
on New York’s legislative rights. Monroe asked Madison’s
opinion on New York’s actions. Jn his letter of November 15,
1784, Monroe concludes:
In either event the land held by these Jndians, having
never been ceded either by N. York or Massachusetts
belongs not the U. States; the only point then in wh. N.
York can be reprehensible is, for preceding by a particular
[state treaty], the general Treaty. This must be attributed
to a suspicion that there exists in Congress a design to
injure her. (emphasis in the original )
Letter of James Monroe to James Madison (Nov. 15, 1784),
reprinted in | Writings of Monroe at 47, Ex. C X 39.
Madison replies:
The Idea which I at present have of the affair leads me to
say that as far as N.Y. may claim a right of treating with
Indians for the purchase of lands within her limits, she has
the confederation on her side; as far as she may have
exerted that right in contravention of the Genl. Treaty, or
even unconfidentially with the Comisrs. of Congs. she has
violated both duty & decorum.
Letter of James Madison to James Monroe (Nov. 27, 1784),
reprinted in 8 Papers of James Madison at 156, Ex. E3 X 140.
Neither Monroe nor Madison disputes New York’s right to
purchase Indian land within its limits. Their only uncertainty is
whether New York could assert her right at the same time that
congress was trying to negotiate a peace treaty. If New York
73a
succeeded in obtaining Indian land by purchase or cession,
congress would probably not be able to obtain a peace treaty
containing a land cession. See, Arthur Lee to the Chairman of
the Committee of the States (Aug. 4, 1784) 4 Papers of the
Continental Congress 129, 129-30, Ex. F3 X 126: Report of the
Pennsylvania Delegates to the Pennsylvania Assembly (Sept.
25, 1783), 7 Letters of the Members of the Continental C ongress
308 (E.C. Burnett ed.), Ex. | X 31. Madison is unsure of the
parties’ authority under these circumstances although his use of
“duty & decorum” suggests that New York should have
consulted congress out of deference rather than legal obligation.
See Ketchum, Ex. D2, pp. 17-21, Tr. 0542-49: Sigliano, Ex. B,
pp. 36-38, 40-41, 44-45: Faulkner, Ex. C. pp. 50-52; Rakove,
Ex. E2, pp. 95-98.
Jefferson’s interpretation is less clear. He expresses three
apparently contradictory opinions over a sixteen month period.
Jefferson was both a state and a congressional official.15 Like
Washington, Jefferson was against land speculation in the west.
He advocated creating a public domain through state cessions
and acquiring land from the Indians in an orderly manner. The
problems with Indian relations during the confederacy made
Jefferson a strong advocate of centralizing control over all
Indian affairs under the Constitution. Ketchum, Ex. D2. pp. IS-
16.
In his May 3, 1790, letter discussing Georgia’s grant of
instate Indian land to a private land company, Jefferson states:
If the country, instead of being altogether vacant, is thinly
occupied by another nation, the right of the native forms
an exception to that of the new comers; that is to say, these
will only have a right against all other nations except the
natives. Consequently, they have the exclusive privilege of
acquiring the native right by purchase or other just means.
'S Both Jefferson and Madison were members of the Virginia
government. Jefferson was governor and Madison was a member of
his council. Jefferson later became Secretary of State under the
Constitution.
74a
This is called the right of preemption, and is become a
principle of the law of nations, fundamental with respect to
America. There are but two means of acquiring the native
title. First, war; for even war may, sometimes, give a just
title. Second, contracts or treaty.
The States of America before their present union (under
the Constitution) possessed completely, each within its
own limits, the exclusive right to use these two means of
acquiring the native title, and, by their act of union, they
have as completely ceded both to the general government.
(citations to the U.S. Const. omitted )
T. Jefferson, Opinion upon the Validity of a Grant by the State
of Georgia to Certain Companies of Individuals (May 3, 1790),
reprinted in 3 Writings of Thomas Jefferson, 18, 19-20 ( Bergh
ed. 1907), Ex. B X 33. Jefferson's conclusions are not entirely
accurate. Under the Articles of Confederation the states could
not obtain Indian land by war because Article VI prohibited the
states from engaging in offensive Indian wars without congress’
consent. However, Jefferson expressly recognizes the states’
right to contract or treat for Indian land within their limits.
Just two months later Jefferson wrote:
The Cherokees were entitled to the sole occupation of the
lands within the limits guaranteed to them. The State of
North Carolina, according to the jus gentium established
for America by universal usage, had only a right of pre-
emption of these lands against all other nations. It could
convey, then, to its-citizens only this right of pre-emption,
and the right of occupation could not be united to it ull
obtained by the United States from the Cherokees.
Thomas Jefferson to Secretary of War Knox (Aug. 26, 1790),
reprinted in 8 Writings of Thomas Jefferson 99, 100, Ex. C X SI.
In 1791 Jefferson also wrote:
I am of the opinion . . . that the Indians have a right to the
occupation of their lands, independent of the States within
whose chartered lines they ha
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