Appendix — Countyof Oneida v. Oneida Indian Nation of NY

Oli ‘Supreme Court, U.

83-1068 ._ . ’ ts

No. ; DEC 28 1983

ALEX ANDES L. STEVAS,

-LERK

In the oo

Supreme Court of the United States.

OctToser Term, 1983.

THE COUNTY OF ONEIDA, NEW YORK anp

THE COUNTY OF MADISON, NEW YORK,

PETITIONERS,

v.

THE ONEIDA INDIAN NATION OF NEW YORK STATE,

A/k/A THE ONEIDA NATION OF New York, A/K/A THE ONEIDA

INDIANS OF New York; THE ONEIDA INDIAN NATION OF

WISCONSIN, a/k/a THE Onewwa TRIBE OF INDIANS OF

Wisconsin, Inc.; THE ONEIDA OF THE THAMES

BAND COUNCIL; anp THE STATE OF NEW YORK,

RESPONDENTS.

Appendix to Petition for Writ of Certiorari to the

United States Court of Appeals for the Second Circuit.

ALLAN VAN GESTEL,

Counsel of Record,

Jerrrey C. Bares,

F. Dennis Say_or, IV,

Goopwin, Procrer & Hoar,

28 State Street,

Boston, Massachusetts 02109.

(617) 523-5700

BATEMAN & SLADE, INC BOSTON , MASSACHUSETTS

Table of Contents.

Opinion of the Court of Appeals la

Trade and Intercourse Act of 1793 53a

Trade and Intercourse Act of 1796 59a

Title 25, United States Code, § 177 70a

Title 28, United States Code, § 2415(a), (b), (c), (g) 70a

Treaty of Canandaigua, November 11, 1794, 7 Stat. 44 73a

Treaty of September 15, 1795 76a

Treaty of June 1, 1798 8la

Treaty of June 4, 1802 83a

la

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

+

Nos. 545, 546, 643—August Term, 1982

Argued: January 18, 1983 Decided: September 29, 1983

Docket Nos. 82-7436, 82-7486, 82-7526

=. -

THE ONEIDA INDIAN NATION OF NEw York StTaTE, a/k/a

THE ONEIDA INDIAN NATION OF NEw York, a/k/a THE

ONEIDA INDIANS OF NEW YORK; THE ONEIDA INDIAN

NATION OF WISCONSIN, a/k/a THE ONEIDA TRIBE OF

INDIANS OF WISCONSIN, INC.; and THE ONEIDA OF THE

THAMES BAND COUNCIL,

Plaintiffs-A ppellants-

Cross-A ppellees,

—against—

THE COUNTY OF ONEIDA, NEw York and

THE COUNTY OF MADISON, NEW York,

Defendants-Third Party Plaintiffs-

Appellees-Cross-Appellants,

—against—

STATE OF New York,

Third Party Defendant-Appellant.

7

2a

Before:

LUMBARD, MANSFIELD and MESKILL,

Circuit Judges.

—

Appeal from an order of the United States District for

the Northern District of New York, Edmund Port, J.,

holding the Counties of Oneida and Madison, New York

liable to the Oneida Indian Nation under the Trade and

Intercourse Act of 1793, awarding the Oneida Indian

nation $16,694 against the two Counties, and finding that

the State of New York suust indemnify the Counties for

all damages assessed against them.

Affirmed and remanded for a recalculation of dam-

ages.

Judge Meskill dissents in a separate opinion.

—>—

ARLINDA LOCKLEAR, Esq., Washington, D.C.

(Lawrence Aschenbrenner, Esq., Native

American Rights Fund, Washington,

D.C., Francis Skenandore, Esq., Oneida,

Wisconsin, Norman Dorsen, Esq., New

York, N.Y., of counsel), for Oneida In-

dian Nation of Wisconsin and Oneida of

the Thames Band.

BERTRAM E. Hirscu, Esq., Floral Park, N.Y.,

for Oneida Indian Nation of New York.

JEREMIAH JOCHNOWITZ, Assistant Solicitor

General, Albany, N.Y. (Robert Abrams,

‘

3a

Attorney General of the State of New

York, Peter H. Schiff, Acting Attorney in

Chief Appeals and Opinions, Albany,

N.Y., of counsel), for State of New York.

ALLAN van GESTEL, Esq., Boston, Massachu-

setts, (Jeffrey C. Bates, Esq., Laura L.

Carroll, Esq., Goodwin, Procter & Hoar,

Boston, Massachusetts, of counsel), for

County of Oneida, New York, and

County of Madison, New York.

ROBERT T. COULTER, EsQ., Washington, D.C.

(Curtis G. Berkey, Esq., Steven M.

Tullberg, Esq., Indian Law Resource

Center, Washington D.C., of counsel),

for Amicus Curiae The Houdenosaunee.

LUMBARD, Circuit Judge:

All three parties appeal from the judgment of the

Northern District of New York, Edmund J. Port, Judge.

The defendants, Counties of Oneida and Madison, New

York, appeal from Judge Port’s decision holding them

liable for wrongful possession of plaintiffs’ land. 434 F.

Supp. 527 (N.D.N.Y. 1977). Plaintiffs Oneida Indian

Nation of New York State, Oneida Indian Nation of

Wisconsin, and Oneida of the Thames Band Council

(collectively the “Oneidas”), as well as the Counties

appeal from Judge Port’s decision of October 5, 1981, on

damages. Finally, third party defendant State of New

York appeals from Judge Port’s ruling of May 5, 1982,

that it must indemnify the Counties for any damages

4a

assessed. We affirm each of Judge Port’s three rulings,

but remand for further proceedings on the calculation of

damages.

The three plaintiffs in this case are the descendants of

the Oneida Indian Nation which inhabited central New

York for many years until shortly after the Revolutionary

War. The Oneidas were part of the Six Nations or Iro-

quois, the most powerful tribe in the Northeast.' Their

land extended from the Pennsylvania border north to the

St. Lawrence River, from the shores of Lake Ontario to

the western foothills of the Adirondack Mountains.’

During the Revolutionary War, the Oneidas were active

allies of the colonists against the British. Their support

prevented the Iroquois from taking a unified stand

against the colonists—an important achievement for the

confederated states.

After the War, the United States rewarded the Oneidas

in the Treaty of Fort Stanwix, 7 Stat. 15 (October 22,

1784), by securing them “in the possession of the lands on

which they are settled.” Later, two additional treaties

further secured the Oneidas in the possession of their

land. See Treaty at Fort Harmar, 7 Stat. 33 (January 9,

1789); Treaty with Six Nations, 7 Stat. 44 (November 11,

1794). The settlers of the new nation, however, in their

constant fever to expand soon invaded the Indians’ terri-

tory. Thus, under increasing pressure from its white

residents, the State of New York in 1788 purported to

! The Iroquois were composed of six tribes: the Cayuga, Mohawk,

Oneida, Onondaga, Seneca, and Tuscarora.

2 Earlier in their history, before the influx of settlers, the Iroquois’

land “extended from the hills of New England to the Mississippi River

and from upper Canada into North Carolina.” F. Cohen, Handbook

of Federal Indian Law 417 (University of New Mexico Press reprint of

1942 ed.) (Federal Indian Law).

5a

purchase most of the Oneidas’ land—nearly five million

acres.’ The Oneidas retained about 300,000 acres near

Oneida Lake.

As the pressure of new settlements everywhere contin-

ued to increase, the Indians became restive. In recogni-

tion of the frequently inequitable land purchases and to

prevent Indian retaliation, the newly created federal gov-

ernment took an active role in protecting and securing the

Indians in the possession of their land. President Wash-

ington and his Secretary of War, Henry Knox, encouraged

Congress to enact legislation which recognized “that the

Indian tribes possess the right of the soil of all lands

within their limits, respectively, and that they are not be

divested thereof, but in consequence of fair and bonafide

purchases, made under the authority, or with the express

approbation, of the United States.” American State Pa-

pers, | Indian Affairs 53 (1834). Accordingly, Congress

passed the Trade and Intercourse Act of 1790, Ch. 33, 1

Stat. 137 (hereinafter “1790 Act”) which provided:

[t}hat no person shall be permitted to carry on any

trade or intercourse with the Indian tribes, without a

[federal] license . . . [and] [t]hat no sale of land

made by Indians. . . shall be valid to any person or

persons, or to any state. . . unless the same shall be

made and duly executed at some public treaty, held

under the authority of the United States.

Id, at 137-38.*

3 Much of this land is presently the subject of another lawsuit, see

Oneida Indian Nation of New York v. New York, No. 78-104

(N.D.N.Y. filed December 5, 1979).

4 Section four of the 1790 Act states in full:

And be it enacted and declared, That no sale of lands made by any

Indians, or any nation or tribe of Indians within the United States,

6a

The 1790 Act, however, was primarily declarative. It

provided few enforcement mechanisms for protecting

federal or tribal interest. Because it did little to stem the

increasing illegal occupation of Indian lands, Congress in

1793 enacted a second Trade and Intercourse Act that

added criminal penalties for illegally occupying Indian

lands and authorized the President to remove trespassers

from the land. Trade and Intercourse Act of 1793, Ch.

19, § 8, 1 Stat. 329, 330-31 (hereinafter “1793 Act”). The

1793 Act also provided that “informants” could enforce

the section imposing fines on violators and collect one-

half of the fine assessed.

Despite these statutory prohibitions, the State of New

York attempted in 1795 to obtain Indian lands without

the requisite federal approval. Throughout the ensuing

months, the federal authorities repeatedly urged New

York State Governor Clinton and his successor Governor

John Jay to seek and secure the appointment of federal

commissioners before the State negotiated any purchase

of Indian lands. See 434 F. Supp. at 534-35. Despite this,

the State sought an agreement with the Oneidas during

the summer of 1795, over the express remonstrance of the

federal authorities. See id. at 534. These negotiations led

to the sale on September 15, 1795, in Albany, in con-

travention of the 1793 Act, of approximately 100,000

acres of the Oneidas’ reservation. As the district court

noted, however, the circumstances surrounding the

Oneidas’ assent to the purchase were fraught with irregu-

larities. Jd. 535. First, the Oneidas virtually never signed

treaties outside their aboriginal land, yet the treaty was

shall be valid to any person or persons, or to any state, whether

having the right of pre-emption to such lands or not, unless the

same shall be made and duly executed at some public treaty, held

under the authority of the United States.

7a

signed in Albany outside their aboriginal land bounda-

ries. Second, normally the Oneidas’ treaties were agreed

to by unanimous consensus of the tribe; here, however,

powers of attorney were given to individuals, none of

whom were chiefs, to negotiate the transaction. Third,

the State purchased the land for approximately fifty cents

per acre. Within two years, the State in turn sold much of

the land to white settlers for about $3.53 per acre.

Social and economic forces, including poverty, famine,

alcoholism, and pressures on the Oneidas to move West

resulted in the alienation of virtually all of their remain-

ing New York acreage. Between 1795 and 1846, twenty-

five more treaties between the State and the Oneidas were

consummated, enabling the State to divest the Oneidas of

all but a few hundred acres. Only two of these treaties

(concerning land not here in question) were made with

federal supervision and approval.’ Furthermore, the State

passed a statute that divided up the tribal landholdings

and gave individual Indians a right to sell.

New York’s abuse of the Oneidas was not accomplished

without protest. Shortly after the 1784, 1787, and 1788

land purchases, the Oneidas contacted the federal govern-

ment in protest over what they perceived as improper,

deceitful, and overreaching conduct by the State. See

American State Papers, | Indian Affairs 139 (1834). Their

protest continued, especially between 1840 and 1875, and

between 1909 and 1965. See 434 F. Supp. at 536.

Finally, m 1970 the Oneidas brought suit in the

Northern District of New York claiming that the 1795

5 It has been estimated that the “State of New York acquired from the

Indians all the western one-half of that state by nearly 200 treaties not

participated in by the United States Government.” Federal Indian Law

at 420 n.24,

8a

cession of land violated the Nonintercourse Act, and that

the land was unconscionably purchased for an inadequate

price. The complaint sought damages for the fair rental

value of 871.92 acres which were part of the 1795 land

transfer, for the period from January 1, 1968 to Decem-

ber 31, 1969. The district court on November 4, 1971,

dismissed the complaint ruling that it asserted only a state

law claim. Our affirmance over one judge’s dissent, 464

F.2d 916, 918 (2d Cir. 1972), was unanimously reversed by

the Supreme Court which held:

Tribal rights [are] entitled to the protection of federal

law, and with respect to Indian title based on abori-

ginal possession, the ‘power of Congress . . . is

supreme.’

. * +

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, includ-

ing the original 13.

414 U.S. 661, 669-70 (1974) (footnotes and citation omit-

ted).

On remand, Judge Port trifurcated the proceedings,

dividing the case into separate trials on the issues of

liability, damages, and indemnity. First, Judge Port held

that the State’s 1795 purchase violated the 1793 Act. He

later assessed the Counties $16,694 in damages plus in-

terest. In addition, Judge Port over the State’s principal

objection on eleventh amendment grounds held that the

State must indemnify the Counties for all damages as-

sessed.

9a

l.

LIABILITY

Plaintiffs claim two bases for a finding of liability in

this case: federal common law and the 1793 Noninter-

course Act.°®

(A) Federal commmon law.

The Counties assert that the Oneidas had no federal

common law rights at the time of the 1795 purchase, and

alternatively that whatever common law action there may

have been was preempted by the Trade and Intercourse

Act. We reject both contentions.

The interrelationship of the Indian nations and the

United States—including its constituent states—early in

the new nation’s history was recognized as involving

uniquely federal interests. The Constitution reflected this

concern by delegating to the federal government the

authority to “regulate Commerce with Foreign Nations,

and among the several states, and with the Indian Tribes.”

U.S. Const. art. I, § 8, cl. 3. This federal interest in

regulating Indian affairs was enunciated not only in

treaties, see, e.g., Treaty of Fort Stanwix, supra, and

statutes, see, e.g., Trade and Intercourse Act of 1790,

supra, but also in the recognition by the courts of the

availability of a federal common law action to vindicate

Indian land claims. The Supreme Court referred to this

proposition in Johnson v. M’Intosh, 21 U.S. (8 Wheat.)

543 (1823), one of its earliest cases involving the transfer

of Indian land. Although the case involved a title dispute

6 Judge Port found a violation of the Trade and Intercourse Act of

1793. In formulating a remedy, however, he looked to the common

law.

10a

between non-Indians, the Court subsequently interpreted

the case to stand for the general principle “that an action

in ejectment could be maintained on an Indian right to

occupancy and use. . . . This is the result of the deci-

sion in Johnson v. M’Intosh.” Marsh v. Brooks, 49 U.S.

(8 How.) 223, 232 (1850). Furthermore, the Court re-

peatedly has emphasized that this Indian right to occu-

pancy and use is a federal right. See, e.g., Oneida Indian

Nation v. County of Oneida, 414 U.S. 661, 667, 670

(1974) (it is a “rudimentary proposition” that after the

Constitution was “adopted, these tribal rights to Indian

lands became the exclusive province of the federal law.”);

see also Mohegan Tribe v. Connecticut, 638 F.2d 612, 626

(2d Cir.), cert. denied, 452 U.S. 968 (1981) (“the extin-

guishment of all Indian title was meant to be a matter of

federal concern”). In the prior appeal in this case, the

Supreme Court alluded to the existence of a common law

action on several occasions in mandating the exercise of

federal jurisdiction. “[{A] tribal right of occupancy, to be

protected, need not be ‘based upon a treaty, statute, or

other formal government action.’ . . . nevertheless [it is]

entitled to the protection of federal law . . . .” Oneida

Indian Nation, 414 U.S. at 669, quoting U.S. v. Santa Fe

Pacific R.R. Co., 314 U.S. 339, 347 (1941). “Absent

federal statutory guidance, the governing rule of decision

would be fashioned by the federal court in the mode of

the common law.” Jd. at 674. We conclude that the

Oneidas may assert a federal common law action to

recover damages for the Counties’ wrongful possession of

their land.

The Counties, however, argue that this federal common

law action was preempted by the enactment of the Trade

and Intercourse Act. They cite Milwaukee v. Illinois, 451

U.S. 304 (1981), in which the Supreme Court held that a

lla

subsequently enacted federal statute preempted the fed-

eral common law cause of action it previously had upheld

in J/linois v. Milwaukee, 406 U.S. 91 (1972). In Illinois v.

Milwaukee the Supreme Court recognized the existence of

a federal common law action for abatement of a public

nuisance in polluted interstate waters. Nine years later,

however, the Court found in Milwaukee v. Illinois that

such an action could no longer be maintained. In the

intervening years, Congress had passed the Federal Water

Pollution Control Act Amendments of 1972, Pub. L.

92-500, 86 Stat. 816 (hereinafter “FWPCA”). Under these

lengthy amendments and their appurtenant regulations, it

is illegal for anyone to discharge pollutants into American

waters without a permit. 33 U.S.C. §§ 1311, 1342. (1976

ed. & Supp. III). Moreover, the discharge permitted is

restricted to effluent limitations established by Environ-

mental Protection Agency regulations. The statute pro-

vided for dual enforcement both by the federal

government and by citizen suits. See id. §§ 1319 & 1365.

It specifies the relief that may be obtained, the ranges of

monetary penalties for various violations, and authorizes

imprisonment in certain cases. Jd. § 1319(c). Other as-

pects of the statute include grants for research, water

treatment works, and water pollution standards. See

generally id. §§ 1251 et seq. Under these circumstances

the Court concluded that “Congress ha[d] not left the

formulation of appropriate [pollution] standards to the

courts . . . but rather ha[d] occupied the field through

the establishment of a comprehensive regulatory program

supervised by an expert administrative agency.” Milwau-

kee v. Illinois, 451 U.S. at 317. Thus, when Congress

“speaks directly to a question,” Mobil Oil Corp. v.

Higginbotham, 436 U.S. 618, 625 (1978), that originally

“rested on federal common law, the need for such an

12a

unusual exercise of lawmaking by federal courts disap-

pears.” Milwaukee v. Illinois, 451 U.S. at 314.

This case is quite different. The Trade and Intercourse

Acts were not comprehensive statutes. They did not speak

directly to the question of the Indians’ ability to enforce

their possessory rights by an action in ejectment. Rather,

the Acts augmented the protection of Indian property

rights previously afforded by federal common law by

adding an additional statutory prohibition. This statute,

inter alia, voided all land transactions in which indians

were a party that were consummated without federal

approval. Furthermore, the 1793 Act both authorized the

intervention of the President and the federal government

on behalf of the Indians, and established criminal penal-

ties for violations of the Act.’ None of these statutory

provisions expressly subsumed the common law modes of

relief. There is no evidence to suggest that Congress

intended to deny common law remedies to the Indians. In

an analogous area involving congressional extinguishment

7 Section eight states in full:

And be it further enacted, That no purchase or grant of lands, or of

any title or claim thereto, from any Indians or nation or tribe of

Indians, within the bounds of the United States, shall be of any

validity in law or equity, unless the same be made bya treaty or

convention entered into pursuant to the constitution; and it shall be

a misdemeanor, in any person not employed under the authority of

the United States, in negotiating such treaty or convention, punish-

able by fine not exceeding one thousand dollars and imprisonment

not exceeding twelve months, directly or indirectly to treat with any

such Indians, nation or tribe of Indians, for the title or purchase of

any lands by them held, or claimed: Provided nevertheless, That it

shall be lawful for the agent or agents of any state, who may be

present at any treaty, held with Indians under the authority of the

United States, in the presence, and with the approbation of the

commissioner or commissioners of the United States, appointed to

hold the same, to propose to, and adjust with the Indians, the

compensation to be made for their claims to lands within such state,

which shall be extinguished by the treaty.

13a

of Indian land titles, the Supreme Court has stated that

evidence of such congressional intent should be “plain

and unambiguous,” and would “not be lightiy implied in

view of the avowed solicitude of the Federal Government

for the Welfare of its Indian wards.” U.S. v. Santa Fe

Pacific, 314 U.S. at 346, 354. Neither should we imply a

congressional intention to extinguish the Indians’ com-

mon law remedy for vindicating their property rights in

the absence of plain and unambiguous evidence of such a

desire. Accordingly, we hold that the district court had

jurisdiction to grant relief under federal common law.

(B) Trade and Intercourse Act.

Judge Port premised liability in large part on the

State’s violation of the 1793 Trade and Intercourse Act.

On appeal, the State apparently does not question Judge

Port’s holding that the Act was violated. The 1793 Act

explicitly required federal approval of a land purchase

such as the 1795 cession. No such federal approval was

obtained. The Counties, on the other hand, proffer five

arguments in seeking to avoid liability: first, that the

Trade and Intercourse Acts did not provide for a private

suit for the enforcement of their provisions; second, that

if such a suit could be maintained it abated upon expira-

tion of the 1793 Act; third, that the Oneidas’ claims are

barred by the statute of limitations; fourth, that the

claims are non-justiciable, and fifth, that the federal

government subsequently ratified the 1795 transaction.

Implied Cause of Action.

It is beyond dispute that the Nonintercourse Acts were

enacted for the protection of Indian tribes as benefi-

ciaries. However, “the focus of [our] inquiry is on

l4a

whether Congress intended to create a remedy,” Califor

nia v. Sierra Club, 451 U.S. 287, 297 (1981). In resolving

that question the Supreme Court has recently given us

guidance:

Our approach to the task of determining whether

Congress intended to authorize a private cause of

action has changed significantly, much as the quality

and quantity of federal legislation has undergone

significant change. When federal statutes were less

comprehensive, the Court applied a relatively simple

test to determine the availability of an implied

private remedy. If a statute was enacted for the

benefit of a special class, the judiciary normally

recognized a remedy for members of that class. Jexcs

& Pacific R. Co. v. Rigsby, 241 U.S. 33 (1916).

Under this approach, federal courts, following a

common-law tradition, regarded the denial of a rem-

edy as the exception rather than the rule.

* * * * .

In view of the absence of any dispute about the

proposition prior to the decision of Cort v. Ash in

1975, it is abundantly clear that an implied cause of

action under the CEA was a part of the ‘contem-

porary legal context’ in which Congress legislated in

1974. Cf. Cannon v. University of Chicago, 441

U.S., at 698-699.

Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456

U.S. 353, 374-75, 381 (1982).

When, prior to Cort v. Ash, 422 U.S. 66 (1975), an

implied private remedy was part of the “contemporary

legal context” in which Congress legislated, Congress will

be deemed to have intended to preserve the remedy. /d.,

l5a

379-80; Blue Chip Stamps v. Manor Drug Stores, 421

U.S. 723, 730 (1975).

Application of these basic principles leads us to the

conclusion that in enacting the Nonintercourse Acts Con-

gress must have expected that they would be enforced by

private actions since they were clearly intended for the

benefit of the Indian tribes. The federal statutory struc-

ture was extremely simple and had not even approached

the complexity which led to the adoption of the Cort v.

Ash requirements. Indeed, the right to enforce the Acts

through private actions has been assumed by various

lower federal courts. See, e.g., Mashpee Tribe v. New

Seabury Corp., 427 F. Supp. 899, 903 (D. Mass. 1977);

Schaghticoke Tribe of Indians v. Kent School Corp., 423

F. Supp. 780, 784 (D. Conn. 1976); Narragansett Tribe of

Indians v. Southern Rhode Island Land Development

Corp., 418 F. Supp. 798, 805 & n.3 (D.R.I. 1976). Private

enforcement has also been favored because of the federal

government’s poor performance of its statutory obliga-

tion to protect the Indians.* The congressional directives

embodied in the Nonintercourse Acts frequently have

been disregarded by the executive branch. See, e.g.,

Narragansett Tribe, 418 F. Supp. at 806 & n.4. Thus, by

necessity, Indian tribes have been permitted to enforce the

s See, e.g., United States v. Ahtanum Irrigation District, 236 F.2d 321

(9h Cir. 1956), cert. denied 352 U.S. 988 (1957):

The numerous sanctimonious expressions to be found in the acts

of Congress, the statements of public officials, and the opinions of

courts respecting “the generous and protective spirit which the

United States properly feels towards its Indian wards,” Oklahoma

Tax Comm. v. United States, 319 U.S. $98, 607, 63 S. Ct. 1284,

1288 87 L.Ed. 1612, and the “ ‘high standards for fair dealing’

required of the United States in controlling Indian affairs,” United

States v. Alcea Band of Tillamooks, 329 U.S. 40, 47 67 S. Ct. 167,

170, 91 L.Ed. 29 are but demonstrations of a gross national

hypocrisy.

16a

Acts. In any event we believe that under conventional

Cort v. Ash analysis, the Indians have an implied private

cause of action to enforce the Nonintercourse Acts’

proscriptions.

Cort v. Ash, 422 U.S. 66 (1975), outlines four factors

to be used in determining whether Congress has intended

that individuals may bring private suits to enforce a

particular statute:

First, is the plaintiff “one of the class for whose

especial benefit the statute was enacted,”—that is,

does the statute create a federal right in favor of the

plaintiff? Second, is there any indication of legisla-

tive intent, explicit or implicit, either to create such a

rememdy or to deny one? Third, is it consistent with

the underlying purposes of the legislative scheme to

imply such a remedy for the plaintiff? And finally, is

the cause of action one traditionally relegated to

state law, in an area basically the concern of the

States, so that it would be inappropriate to infer a

cause of action based solely on federal law?

Id. at 78 (citations omitted) (emphasis in original). We

consider these four factors in that order.

(1) Beneficiaries.

The language and purpose of the 1793 Act are un-

equivocal in their purpose to protect the Indians. Section

1 provides that “no person shall be permitted to carry on

any trade or intercourse with the Indian Tribes without a

[federally granted] license . . . .” 1 Stat. at 329. Viola-

tors of the Act “shall forfeit all the merchandise offered

for sale to the Indians,” and they also may be imprisoned,

and fined up to $1,000. Jd. §§ 3 & 5, at 329-30. Further-

more, “no purchase or grant of lands . . . from any

17a

Indians [without federal approval] shall be of any validity

... Id. at § 8, at 330-31. The statute’s purpose was

“to prevent unfair, improvident or improper disposition

by Indians of land owned or possessed by them to other

parties. . . .” Federal Power Commission v. Tuscarora

Indian Nation, 362 U.S. 99, 119 (1960); see also Wilson v.

Omaha Indian Tribe, 442 U.S. 653, 664 (1979) (“a major

purpose of these acts as they developed was to protect the

rights of Indians to their property”).

(2) Legislative Intent.

The legislative history of the Nonintercourse Acts,

which is sparse and incomplete, furnishes no clear expres-

sion on the question of whether Congress intended to

create a private right of action for damages. Congres-

sional committee reports generally are unavailable, and

floor debates were seldom recorded. The absence of

legislative history is neither unusual nor fatal. ‘‘The

legislative history of a statute that does not expressly

create or deny a private remedy will typically be equally

silent or ambiguous on the question.’’ Cannon v. Univer-

sity of Chicago, 441 U.S. 677, 694 (1979). Nonetheless,

‘the failure of Congress expressly to consider a private

remedy is not inevitably inconsistent with an intent on its

part to make such a remedy available.’’ Transamerica

Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18 (1979).

““(Cjongressional intent can be inferred from the lan-

guage of the statute, the statutory structure,’’ Northwest

Airlines, Inc. v. Transport Workers, 451 U.S. 77, 94

(1981), ‘‘or in the circumstances of [the statute’s] enact-

ment.’’ Transamerica, 444 U.S. at 18. See also Cannon v.

University of Chicago, 441 U.S. at 698-99; California v.

Sierra Club, 451 U.S. 287, 296 n.7 (1981).

18a

The circumstances surrounding the enactment of the

1793 statute show that Congress intended to provide

maximum protection of Indian land—and that this pro-

tection included the power to commence a private action.”

The earlier 1790 Act in large part was due to the efforts of

President George Washington and his Secretary of War,

Henry Knox. Both men were ‘‘of high integrity and had

extensive experience in Indian affairs.’’ F. Prucha,

American Indian Policy in the Formative Years: The

Indian Trade and Intercourse Acts of 1790-1834 at 43-44

(1962) (hereinafter ‘‘American Indian Policy’’). President

Washington personally appeared before Congress and

warned that legislation was needed to bolster the faltering

relations with Indian Tribes. See Sen-Exec. Journal, \st.

Cong., Ist Sess. 20-24 (1789); 1 Annals of Congress 933

(1790)."° Secretary Knox urged that if it were ‘declared

by law. . . that the Indians possess the right to all their

territory which they have not fairly conveyed, and that

they should not be divested . . . [except by] treaties made

under the authority of the United States, the foundation

We reject the State’s initial contention that Indian tribes lacked

capacity to sue in federal court, and thus Congress could not have

intended to create a private cause of action on their behalf. Although

suits by tribes may have been rare the reasons for this were cultural,

not legal:

Except for the Cherokee, who had experienced some intermarriage

and infusion of Anglo-American legal concepts, the tribes were

ignorant of American legal processes and were still politically

organized in traditional fashions, making resort to American courts

virtually impossible.

Clinton & Hotopp, Judicial Enforcement of the Federal Restraints on

Alienation of Indian Land: The Origins of the Eastern Land Claims,

31 Me. L. Rev. 17, 46 (1979).

As Secretary Knox said in a letter to North Carolina Governor

Blount, quoted in American Indian Policy at 41: “The Indians have

consantly had their jealousies and hatreds excited by the attempts to

obtain their land.”

19a

of justice and peace would be laid.’’ American State

Papers, | Indian Affairs 53 (1834). The 1790 Act which

followed embodied these ‘‘principles of justice and mod-

eration, as [would] enforce the approbation of the dispas-

sionate and enlightened part of mankind . . . [and it

represented a policy of] conciliation of the Indians by

negotiation . . . liberality, express guarantees of protec-

tion. . . and developed trade.’’ Jd. at 41, 44.

Section 4 of the 1790 Act stated that ‘‘no sale of lands

made by any Indians . . . shall be valid. . . unless the

same shall be mace ... under the authority of the

United States.’’ 1 Stat. at 138. Section 4’s prohibition

against non-federally approved Indian land sales did not

carry with it any substantive penalties for its violation,''

nor were there any mechanisms for enforcing its prohibi-

tion. Nonetheless, Congress must have intended that

section 4 would be enforced by some party or institution.

See Transamerica, 444 U.S. at 18-19. In Transamerica,

the Supreme Court construed a securities’ statute that was

constructed similarly to the 1790 Act. Section 215 of the

Investment Advisors Act of 1940 states that all waivers of

compliance and ‘‘[e]very contract made in violation of

any provision of this subchapter ... shall be

void... .’’ 15 U.S.C. § 80b-15. Like section 4 of the:

1790 Act, 80b-15 simply declared that certain transactions

were void. It did not explicitly provide for enforcement.

Under these circumstances, the Supreme Court found

that Congress intended a private right of action to enforce

section 80b-15.

i Sections 2 and 3 which dealt with licensed traders, on the other

hand, expressly included enforcement by the United States and perhaps

by “informants” suits. See 1 Stat. at 138-39.

20a

By declaring certain contracts void, [section 80b-15]

by its terms necessarily contemplates that the issue of

voidness under its criteria may be litigated some-

where. At the very least Congress must have assumed

that [section 80b-15] could be raised defensively in

private litigation to preclude the enforcement of an

investment advisors contract. But the legal conse-

quences of voidness are typically not so limited. A

person with the power to avoid a contract ordinarily

may resort to a court to have the contract rescinded

and to obtain restitution of consideration paid.

* * *

For these reasons we conclude that when Congress

declared in [section 80b-15] that certain contracts

were void, it intended that the customary legal inci-

dents of voidness would follow.

Transamerica, 444 U.S. at 18, 19.

By analogy, if the State violated the 1790 Act, logically

the Indians would have had ‘‘the customary legal inci-

dent’”’ of a private right of action to enforce its strictures.

With no express enforcement provisions accompanying

section 4, a statutory interpretation that did not permit a

private right of action would render section 4 unenforce-

abie.

As the 1790 Act was set to expire in 1793, Congress

passed the Trade and Intercourse Act of 1793 in which

section 8 incorporated the original language of the 1790

Act which had voided all Indian land transactions nego-

tiated without federal approval. In addition, it provided

that violation of the section was a misdemeanor punish-

able by a fine and imprisonment.'? The statute also

12 Violation of the 1793 Act was punishable by a fine up to $1,000 and

imprisonment not to exceed twelve months. 1793 Act § 8, | Stat. at

330.

2la

authorized the executive branch, at the discretion of the

President, to remove violators from Indian land. Other

sections regulating trade with the Indians also were added

to the Act, with penalties for their violation."

These upgraded remedies were designed to correct the

perceived shortcomings of the 1790 statute. The 1790 Act

had failed to protect the Indians adequately from preda-

tory encroachment, trade, and land purchases. President

Washington had urged Congress in his 1791 annual ad-

dress to enact an ‘‘efficacious provision . . . inflicting

adequate penalties upon all those who, by violating [the

Indians’) rights, shall infringe the treaties and endanger

the peace of the Union.’’ ‘Third Annual Address, Presi-

dent George Washington,’ 1 Messages and Papers of the

President, 105 (Richardson, ed., 1896). He renewed his

plea in late 1792 stating, ‘‘I cannot dismiss the subject of

Indian affairs without again recommending to your con-

sideration the expediency of more adequate provision for

giving energy to the laws throughout our interior frontier

13 The significant additions tw the Trade and Intercourse Act included:

Section one prohibited trade with Indians without a federally granted

license. To obtain such a license, a licensee had to submit a $1,000

bond. Section two permitted the recall of the license, as well as

recourse to the bond for any breaches of conditions placed on the

licensee. The third section penalized unlicensed trading with Indians by

imposing forfeiture of the merchandise traded, and a fine and impris-

onment up to $100 and 30 days respectively. Crimes committed against

Indians on Indian land were to be treated as if committed on non-In-

dian land under section 4. Section § proscribed settlement on Indian

land with an attendant fine between $100 and $1,000 and imprison-

ment not to exceed twelve months for any violations of the section.

The President was also authorized to remove unlawful settiors. Section

6 required a special license “to purchase any horse of an Indian, or of

any white man in the Indian territory,” and provided that persons

purchasing horses without such a special license would forfeit both the

horse and a sum not more than one hundred dollars, nor less than

thirty dollars. One half of the forfeiture would be distributed to the

prosecuting “informant” and one-half would go to the federal govern-

ment.

22a

> Speech of President George Washington, 2d

Cong., 2d Sess., November 6, 1792, 1 American State

Papers: Indian Affairs, at 119. In response, Congress

enacted the more stringent 1793 statute, to increase the

law’s effectiveness through additional enforcement mech-

anisms. There is no suggestion that Congress intended to

subtract from the statutes’ remedies. Accordingly, we

agree with the district court that the private right of

action that existed under the 1790 Act remained intact in

the 1793 Act.

Our conclusion that Congress intended that private

parties would have a cause of action to enforce the 1793

Act is further supported by other evidence of congres-

sional intent. For example, in 1822 Congress amended the

Trade and Intercourse Act of 1802—which essentially

continued the 1793 Act’s land alienation provision—to

place the burden of proof on white persons in all cases in

which Indians were parties. 3 Stat. 683 (1822). This

pertained to ‘‘all trials about the right of property in

which Indians shall be party on one side, and white

persons on the other.”’ Jd. This provision only makes

sense if Congress had intended the Trade and Intercourse

Acts to authorize Indians to appear as plaintiffs to

enforce the Acts, as well as to be defendants.

Furthermore, the 1793 Act’s misdemeanor provison

only appears to apply to ‘‘negotiators’’ of Indian land

cession transactions. The State, rather than Counties,

thus would appear to be subject to the criminal penalties

of the statute. Cf. Rewis v. United States, 401 U.S. 808,

812 (1971) (‘‘ambiguity concerning the ambit of criminal

statutes should be resolved in favor of lenity.’’). Without

the availability of a private right of action against the

Counties the only remedy would be the executive’s discre-

23a

tionary removal of violators.'* Presidential authority to

remove intruders even when exercised, however, often

proved ineffectual. American Indian Policy at 158-66.

Thus, absent a right of action, the Oneidas would have a

right under a statute that was unenforceable. For all these

reasons, we conclude tha: Congress intended that Indian

litigants could bring private suits to enforce the 1793

Act’s prohibition of certain land cessions.'*

14

Cf. Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 374 (1968):

[T]he general power of the United States to safeguard an allotment

affected the capacity of the Indian to protect that allotment.

Furthermore, the Bureau of Indian Affairs, which is the agency of

the Department of the Interior charged with fulfilling the trust

obligations of the United States, is faced “with an almost staggering

problem in attempting to discharge its trust obligations with respect

to thousands upon thousands of scattered Indian allotments. In

some cases, the adequate fulfillment of trust responsibilities on

these allotments would undoubtedly involve administrative costs

running many times the income value of the property.” H.R. Rep.

No. 2503, 82d Cong., 2d Sess., 23 (1952). Recognizing these

administrative burdens and realizing that Indian’s right to sue

should not depend on the good judgment or zeal of a government

attorney, the United States has indicated its support of petitioners’

position that Indians have a capacity to sue under the oil and gas

lease.

(footnote omitted).

The only remnants of legisiative history available indicate that

President Washington, who was the moving force behind the 1790 and

1793 Acts, thought that they permitted the Indians to bring private

causes of action. Cornplanter, Chief of the Seneca Indians, another

tribe of the Six Nations, had met with President Washington in

December 1790 to present their complaints about certain land trans-

actions entered into during the prior decade. American State Papers, |

Indian Affairs 139 (1834). Washington assured Cornplanter that at

least after 1790, “the case [was] entirely altered; .. . any treaty

formed and held without [the federal government's} authority [was]

not binding.” /d. Moreover, “[iJf . . . you have any just cause of

complaint against and can make satisfactory proof thereof, the federal

courts will be open to you for redress, as to all other persons.” Jd. This

speech was printed and communicated to Congress on January 11,

1792. Id. 142-43. Congress, therefore, was made aware of President

Washington’s perception of the reach of Indian law.

24a

(3) Statutory Purpose.

The purposes of the 1793 Trade and Intercourse Act

are best served by the implication of a private right of

action. ‘‘[A] major purpose of the Acts as they developed

was to protect the rights of Indians to their properties.’’

Wilson v. Omaha Indian Tribe, 442 U.S. 653, 664 (1979).

See also U.S. v. Southern Pacific Transportation Co..,

543 F.2d 676, 697 (9th Cir. 1976) (the statute was meant

oO “‘prevent the steady diminution of Indian territory

. unless . . . by public treaty.’’). The Supreme Court

has stated that it is ‘‘decidedly receptive’’ to the implica-

tion of a ‘‘private remedy [that] is necessary or at least

— to the accomplishment of the statutory purpose

.’ Cannon v. University of Chicago, 441 U.S. at

703. _ private right of action is necessary in view of the

virtually complete failure of other statutory remedies to

provide the Indians with any real protection. See United

States v. Ahtanum Irrigation District, 236 F.2d 321 (9th

Cir. 1956), cert. denied, 352 U.S. 988 (1957); American

Indian Policy at 147, 158-66.

(4) Federal or State Concern.

As stated above the Indians have a federal common law

possessory cause of action. Moreover, it is well settled

that laws affecting the Indians are principally the prov-

ince of federal, not state law. See, e.g., Oneida Indian

Nation, 414 U.S. at 669; Hughes v. Washington, 389 U.S.

290, 292-93 (1967); Board of Commissioners v. United

States, 308 U.S. 343, 350-51 (1939); Worcester v. Geor-

gia, 31 U.S. (6 Pet.) 515 (1832).

Thus, all four prongs of the Cort v. Ash test have been

met. Accordingly, we hold that the Oneidas had a private

25a

right of action to enforce the Trade and Intercourse Act

of 1793. We now turn to defendant’s other arguments.

Abatement of the Cause of Action.

The Counties argue that even if the Oneidas could have

brought suit under the 1793 Act, that cause of action has

since abated. The 1793 Act expired after ‘‘two years, and

from thence to the end of the then next session of

Congress. . .”’ | Stat. at 332. Appellants assert, quoting

The General Pinkney, 9 U.S. 5 (Cranch) 281, 283 (1809),

that after the termination of the 1793 Act, ‘‘no penalty

can be enforced, nor punishment inflicted, for violations

of the law committed while it was in force unless some

special provision be made for that purpose by statute.’’

We disagree. The pertinent provision of the 1793 Act

remains operative. 25 U.S.C. § 177 (1983) states that

“‘[nJo purchase ... of lands ... from any Indian

nation or tribe of Indians shall be of any validity .. .

unless same be made by treaty . . . under the authority

of the United States.’’ Under these circumstances, ‘‘the

better and prevailing rule is that so much of the origina!

as is repeated in the later statute without substantial

change is affirmed and continued in force without inter-

ruption.’’ Great Northern Ry. Co. v. United States, 155

F. 945, 948 (8th Cir. 1907). Abatement is inapplicable

according to this proposition because the underlying ra-

tionale of abatement is inapposite. Abatement **fiJmputes

to Congress an intention to avoid inflicting punishment at

a time when it would no longer further any legislative

purpose. . . .’” Hamm v. City of Rock Hill, 379 U.S.

306, 313 (1964). Because the 1793 statute remains essen-

tially in force in 25 U.S.C. § 177, the continued invalidity

of the illegal transactions would ‘“‘further a legislative

purpose,’’ namely, protection of Indian land title.

2fa

Miscellaneous Objections to Liability.

Appellants raise three other arguments against liability:

the statute of limitations, non-justiciability, and subse-

quent federal ratification of the 1795 transaction.

(1) Statute of Limitations.

Appellants claim that this suit, instituted 175 years

after the cause of action accrued is time-barred. We

disagree. State statutes of limitation are inapplicable. As

we recently emphasized, in cases involving Indian land

claims “[d]jefenses based upon state adverse possession

laws and state statutes of limitation have been consis-

tently rejected.” Mohegan Tribe v. State of Connecticut,

638 F.2d at 614-15 & n.3. Moreover, state statutes of

limitation are not borrowed “if their application would be

inconsistent with the underlying policies of the federal

statute.” Occidental Life Ins. Co. v. EEOC, 432 U.S.

355, 367 (1977). Applying New York’s statute would

permit a violation of the 1793 Act to go unremedied, and

thus would be patently inconsistent with the Trade and

Intercourse Acts. In addition, we have recently rejected

the assertion that such actions are time-barred noting that

“[ijt is clearly established that a suit by the United States

as trustee on behalf of an Indian tribe is not subject to

state delay-based defenses. It would be anomalous to

allow the trustee to sue under more favorable conditions

that those afforded the tribes themselves.” Oneida Indian

Nation of New York v. New York, 691 F.2d 1070, 1083-84

(2d Cir. 1982) (citation omitted).

Suits brought by the United States on behalf of Indian

tribes are governed by the special statute of limitations set

forth in 28 U.S.C. § 2415 which provides some guidance

in the present situation. Under section 2415(c) there is no

27a

time limitation if the action is to “establish the title to, or

right of possession of, real or personal property.” Section

2415(a) provides that actions in contract seeking money

damages that accrued prior to July 1966 are timely if filed

prior to December 31, 1982. Thus, had the United States

brought the instant suit in 1970 instead of the Oneidas, it

would not have been time-barred. We conclude that “at

the very least, suits by tribes should be held timely if such

suits would have been timely if brought by the United

States.” Jd. at 1084

(2) Justiciability.

Appellants advance several reasons in support of their

assertion that the Oneidas’ claims present non-justiciable

political questions:

(1) determination of the lawfulness of and remedy

for the Counties’ occupancy has been committed

to the President;

(2) determination of the Plaintiffs’ claim entails a

choice among contenders for the right to govern

the area covered by the 1795 conveyance;

(3) determination of the Plaintiffs’ claim entails the

allocation of tribal property, which is committed

to Congress;

(4) determination of these questions by a federal

court entails the risk of multifarious pronounce-

ments on the foregoing questions by the different

branches of the federal government.

Our holding that the Oneidas have a federal common

law cause of action and an action to enforce the 1793

Trade and Intercourse Act negates defendants’ argument

28a

that the exclusive remedy against illegal occupiers is

committed to the President. Accord, e.g., Washington v.

Washington State Commercial Passenger Fishing Vessel

Ass’n, 443 U.S. 658 (1979); Moe v. Confederated Salish

& Kootenai Tribes, 425 U.S. 463 (1976); Oneida Indian

Nation of New York v. County of Oneida, 414 U.S. 661

(1974); Joint Tribal Council of the Passamaquoddy Tribe

v. Morton, 528 F.2d 370 (ist Cir. 1975); Fort Mojave

Tribe v. Lafollette, 478 F.2d 1016 (9th Cir. 1973);

Mashpee Tribe v. New Seabury Corp., 427 F. Supp. 899

(D. Mass, 1977); Schaghticoke v. Kent School Corp., 423

F. Supp. 780 (D. Conn. 1976); Narragansett Tribe v.

Southern Rhode Island Land Development Corp., 418 F.

Supp. 798 (D. R.I. 1976).

The Counties’ next two propositions also must be

rejected. They assert that the effect of the district court’s

decision is to transfer the sovereignty of over 100,000

acres of New York State land “to at least three tribal

factions who are, and who have been for years, feuding

over which is the proper government tribe.” This, they

assert, is an issue “on which the district court must defer

‘to the political departments.’” Jd., quoting, Baker v.

Carr, 369 U.S. 186, 215 (1962).

The district court found that the three plaintiffs were

the direct descendants of the Oneida Indian Nation that

inhabited the land in question in 1795. 434 F. Supp. at

532. Judge Port based this decision on expert testimony,

implicit United States’ verification stemming from an-

nuity payments, and recognition by the Bureau of Indian

Affairs. Jd. at 532-33. Appellants have given us no reason

to disturb this finding. Hence, there is no need to intrude

on internal tribal governance; moreover, the appropriate

allocation of damages amongst the plaintiffs is not a

29a

question that is presently before us on appeal.’ Further-

more, as we observed in Oneida Indian Nation v. New

York, “[t)o our knowledge no Indian land claim has ever

been dismissed on non-justiciability grounds.” 691 F.2d at

1081.

Finally, the Counties assert that our holding wil! have

catastrophic ramifications. We rejected this argument in

Oneida Indian Nation v. New York, in which we stated

“we know of no principle of law that would relate the

availability of judicial relief inversely to the gravity of the

wrong sought to be addressed.” Jd. at 1083; see generally

id.

(3) Subsequent Federal Ratification.

The Counties assert as a third defense to liability that

the United States subsequently ratified the 1795 trans-

action in two federally approved treaties between the

Oneidas and the State. The Treaty of June 1, 1798,

describes the 1795 transaction as a “purchase.” It also

provides in relevant part:

The said [Oneida] Indians do cede, release, and

quitclaim to the people of the State of New York,

forever, all the lands within their reservation, to the

westward and southwestward of a line from the

northeastern corner of the lot No. 54, in the /ast

purchase from them running northerly to a button

wood tree, . . . standing on the bank of the Oneida

lake[.]

Treaty of 1798 (emphasis added). The “last purchase”

referred to in this treaty, the parties agree, was the 1795

16 See 434 F. Supp. at 538 n.20 (“Since this phase of the trial is solely to

determine liability, the rights of the individual plaintiffs to share in a

recovery can be left for another day.”).

30a

transaction. The federally approved Treaty of June 4,

1802 also mentions lands “heretofore ceded . . . to the

State of New York,” ostensibly a reference to the 1795

purchase. In addition, both treaties refer to lots 54 and 59

which were part of the 1795 transaction.

We agree with the district court which cited United

States v. Santa Fe Pacific in its holding that the reference

in these treaties were not a “plain and unambiguous”

ratification of the 1795 transaction. In United States v.

Santa Fe Pacific, the Supreme Court refused to find that

an ambiguous congressional pronouncement had acted to

extinguish Indian land title. In so doing, the Court stated

that “‘fuJnquestionably it has been the policy of the

federal government from the beginning to respect the

Indian right of occupancy, which could only be interfered

with or determined by the United States.’ ” 314 U.S. at

345, quoting Cramer v. United States, 261 U.S. 219, 227

(1923). Extinguishment of the Indians’ title could not be

“lightly implied” because “[c]ertainly, it would take plain

and unambiguous action to deprive the Walapais [Indian

tribe] of the benefits of that policy.” Jd. at 346, 354.

In arguing that the “plain and unambiguous” standard

is inapplicable, the Counties attempt to distinguish the

claimed ratification herein from the extinguishment of

Indian title involved in United States v. Santa Fe Pacific.

The distinction, however, is a meaningless one. Ratifica-

tion also would serve to extinguish the Oneidas’ title. We

find the Counties’ argument wanting for a second reason.

Even under the standard propounded by the Counties it

cannot be said that isolated references to land boundaries

in the 1798 or 1802 treaties, which are little more than

“metes and bounds” descriptions, are sufficient to consti-

tute ratification of the 1795 transaction. Moreover,

neither treaty makes any reference to the validity of the

3la

underlying 1795 “purchase.” There is no evidence that the

federal authorities were then aware of any claim of

illegality of the prior land sale.

II.

DAMAGES

After a separate trial on the issue of damages, Judge

Port on October 5, 1981 awarded the Oneidas $9,060 plus

interest against Madison County, and $7,634 plus interest

against Oneida County for their unlawful use and occu-

pation of the Oneidas’ land for the years 1968 and 1969."

Judge Port arrived at these amounts by calculating the

fair rental value of the land as unimproved for the years

1968 and 1969. Against those amounts he allowed the

Counties a set-off for improvements because they occu-

pied the land in good faith, and without knowledge of the

unlawfulness of their continued occupation.

The appellants raise three issues regarding Judge Port’s

decision. The first is whether the Counties as allegedly

good faith occupiers of the Oneidas’ land can be held

liable in damages. The second issue concerns the district

court’s ruling that the Counties could set-off against the

damages assessed the amount of improvements they made

on the land. And the third question is whether the law of

eminent domain is relevant to the calculation of damages.

7 As we noted earlier, see supra note 6, the district court found a

violation of the 1793 Trade and Intercourse Act, but appeared to resort

to the common law in formulating a damage remedy. We understand

the district court to have examined the common law only to assist it in

formulating a statutory damage remedy.

32a

A. Availability of a Damage Remedy.

The Counties claim first that they did not violate the

1793 Trade and Intercourse Act, and second that if they

did, the Act explicitly provides the exclusive remedies for

its violation. They note that it was the state that violated

the 1793 Act in 1795 and not the Counties,"* which were

subsequent occupiers of the land." Even bad faith occu-

pation would not violate the Act, the Counties assert,

because section 8 regulates the disposition, not the occu-

pation of Indian land. The Counties also contend that, in

any event, they are good faith occupiers, and that the

1793 Act was not intended to assess damages against

those holding land in good faith.

The Counties, however, do not question Judge Port’s

holding that the 1795 transfer of Indian land was void.”

In effect the Counties have asked us to find that their

good faith occupation of Oneida land can act as a

subsequent validation of the 1795 transaction. To accept

the Counties’ argument, however, would render the Trade

and Intercourse Acts wholly ineffective.”

18 Oneida County was established in 1798 and Madison County in

1806. J. Lomenzo, Manual for the Use of the Legislature of the State

of New York 310 (1938 ed.).

19 The district court was not able to ascertain when the Counties began

their occupation of the Oneidas land, determining only that it was

sometime in the !800’s.

20 Moreover, Judge Port’s determination was amply supported. See 434

F. Supp. at 537-40

21 When Congress intended a provision in the same statute to contain

an intent or good faith element it simply did so expressly. See § 6, |

Stat. at 330 (“every person, who shail purchase a horse, knowing him

to be brought out of Indian territory, by any person or persons not

licensed, as above, to purchase the same shall forfeit the value of such

horse.”).

33a

As we previously stated, the Oneidas are entitled to

enforce the Nonintercourse Act’s voiding of the 1795

purchase. This is what the Oneidas’ lawsuit seeks to do.

Their suit closely corresponds to the common law action

for ejectment in which a plaintiff need only establish his

right to possession. See New York v. White, 528 F.2d 336,

338 (2d Cir. 1975); see also Taylor v. Anderson, 234 U.S.

74 (1914). The Oneidas’ claim is based on their present

right of possession, see Oneida Indian Nation, 414 U.S.

at 666, and the Counties’ liability is premised on their

continued occupancy of Oneida land in violation of the

Act. Under the common law the good or bad faith of the

occupant is irrelevant to his liability. See, e.g., Green v.

Biddle, 21 U.S. (8 Wheat.) 1, 80-81 (1823); Miceli v.

Riley, 436 N.Y.S.2d 72, 74-75, 79 A.D.2d 165 (1981). The

Counties’ occupation, regardless of their good or bad

faith, of Indian land obtained in a transaction that

violated the 1793 Act renders them liable.

The Counties also contend, however, that if their pos-

session does violate the Act, the only remedies for their

violation are expressly set out in the statute. See supra

note 10. It follows from our conclusion that the Oneidas

have a private cause of action that Congress intended the

concomitant damage remedy that flows with it to be

available; it is a “customary legal incident” of the private

action. See Transamerica, 444 U.S. at 19. The Counties’

conclusory statement that the statute provides the exclu-

sive remedies for its violation, without citation to any

legislative history, ignores the Supreme Court’s repeated

admonitions: “The creation of one explicit mode of

enforcement is not dispositive of congressional intent

with respect ot other complementary remedies.” Califor-

nia v. Sierra Club, 451 U.S. at 295 n.6, citing Trans-

america, 444 U.S. at 29 n.6 (White, J., dissenting); Cort

34a

v. Ash, 422 U.S. at 82-83 n.14. Accordingly, we agree

with Judge Port that the Counties are responsible for the

continuing violation of the 1793 Act and are liable in

damages for that violation.

B. Improvements’ Set-Off.

Since the Counties assumed possession of the Oneidas’

land they have erected or completed several improve-

ments on the land. They asserted, and the district court

held, that the Counties were entitled to a set-off of the

value of these improvements against the Oneidas’ fair

rental value damages. The improvements on the 871.92

total acres were: 809 acres used as highways; the 47.22

acre Champlain Battleground Park; a 2.07 acre parcel

used as a fire department radio tower and a 13.13 acre

gravel bed. To arrive at the rental value less improve-

ments the court simply calculated the fair rental vaiue of

the land as unimproved.

Neither party appears to question Judge Port’s fair

rental value method of calculating damages.” Thus, the

only dispute is whether the district court could set-off the

value of improvements against the fair rental value dam-

ages. The court applied the common law rule that a

good-faith occupier of land is entitled to a set-off for

improvements. See Green v. Biddle, 21 U.S. (8 Wheat.) at

59: see also Miceli v. Riley, 436 N.Y.S.2d at 74; Berney v.

Brodie, 272 N.Y.S.2d 881, 26 A.D.2d 679 (1966); 42

C.J.S. Improvements § 7 at 432 (1944). The Oneidas

argue first that the common law rule should not be

applied because it would frustrate the purposes of the

1793 Act by rewarding trespassers and encouraging un-

22 See Utah Power & Light Co. v. United States, 243 U.S. 389, 41!

(1917); New Orleans v. Gaines, 82 U.S. (15 Wall.) 624 (1872).

35a

lawful alienations and occupations. We disagree. Presum-

ably, the common law rule is based on the premise that to

require forfeiture by the good-faith occupier of the value

of its improvements would work an injustice and provide

little in the way of added deterrence. A contrary rule

would not discourage good faith trespassers from their

illegal occupation because it is based on a mistaken,

though still wrongful, belief of ownership. We are not

prepared to require the good faith non-active wrongdoer,

here a political subdivision, to forego the value of im-

provements it made in the absence of any policy benefits.

If good faith occupiers were not credited with the value of

their improvements, this would lead to the anomalous

result that they usually would suffer higher damages than

bad faith occupiers because good-faith occupants are

more likely to make improvements.

The Oneidas next question the district court’s finding

that the Counties held the land in good faith. We find this

issue more troublesome. The burden of proving good

faith, rests on the Counties. See, e.g., United States v.

Wilson, 523 F. Supp. 874, 900-901 (N.D. lowa 1981);

Deakyne v. Lewes Anglers, Inc., 205 F. Supp. 415 (D.

Del. 1962); Church of God Prophecy v. Ferris, 244

N.Y.S.2d 279, 281, 19 A.D.2d 934 (1963). The record

does not show, however, whether the district judge placed

the burden of proof on the Counties or on the Oneidas.

Judge Port’s opinion merely states that “there is no

evidence to connect the defendants, these two Counties,

with [the State’s] act of bad faith; nor is there any other

evidence indicating that they were bad-faith occupiers of

the land in 1968 or 1969... .” At trial, however, the

Counties only profferred evidence that they had been

acting in good faith since 1970. Inasmuch as the Counties

had possession of the Oneidas’ land since sometime in the

36a

1800’s, it is not enough that they established good faith

since 1970. On the basis of the present record, however,

we are not prepared to overturn Judge Port’s determina-

tion that the Counties had acted in good faith. We leave

clarification of the issue of good faith to the district court

on remand.

C. Computing Damages at 90% of the Fair Rental Value.

The Oneidas’ last argument is that the lower court

erred in calculating at less than 100% of the fair rental

value certain lands through which highways presently

run. Judge Port stated in his opinion:

That plaintiffs were entitled to possession the same

as any landowner is before an eminent domain and

he was deprived of that possession by the conduct of

the defendant so that the damages sustained by both

plaintiffs can be viewed as substantially the same

and, generally speaking, the rules of eminent domain

could be applied here and do justice to the parties.

Judge Port then analogized the Oneidas’ claim to a

request for “just compensation” for a road easement

condemnation, and calculated the fair rental of 90% of

the value of the property. We cannot agree that such a

discount is appropriate. It treats the Counties’ occupation

as if it were a lawfully obtained easement. We see no

reason why there should be any diminution of the dam-

ages even if the uses were for a public purpose. Accord-

ingly, on remand the district court should calculate

damages without any discount.

37a

Ill.

INDEMNIFICATION

The Counties filed third-party complaints against the

State seeking indemnification of any damages assessed

against them for their possession of the Oneidas’ land.

The State moved to dismiss the complaints, and the

Counties cross-moved for summary judgment. Judge

Port granted the Counties’ motion over the State’s objec-

tions that the court lacked subject matter jurisdiction,

that the complaint failed to state a cause of action, and

that the State’s eleventh amendment immunity to suit

barred the action.

A. Subject Matter Jurisdiction

The State maintains that the district court erred in

holding that it had ancillary jurisdiction over the indem-

nity action, contending that the indemnity suit does not

arise out of the same core of operative facts as the

Oneidas’ claim against the Counties. Any indemnity

liability, the State argues, would stem from the State’s

disposition of the land to the Counties, and not from its

acquisition of the land in violation of the Trade and

Intercourse Act. We disagree. In order to establish their

right to indemnity the Counties must show that they are

compelled to pay monetary damages as a result of the

State’s wrongful conduct—here, New York’s violation of

the 1793 Act. See Great American Ins. Co. v. United

States, 575 F.2d 1031, 1035 (2d Cir. 1978); Tokio Marine

& Fire Ins. Co. v. McDonneil Douglas Corp., 465 F.

Supp. 790 (S.D.N.Y. 1978); Taft v. Shaffer Trucking,

Inc., 383 N.Y.S.2d 744, 52 A.D.2d 255 (1976). The

Counties’ indemnity claim, therefore, is based largely on

38a

the same facts that established the Counties’ liability. The

Oneidas alleged and proved that the State had violated

the 1793 Trade and Intercourse Act. Plaintiffs es-

tablished, moreover, that the Counties were wrongfully

occupying this land that had devolved from the State to

the Counties: These same facts also establish the legal and

equitable basis for the Counties’ indemnity action. See

supra section (II) (A). When the action for indemnifica-

tion arises out of the same core of facts, the court’s

jurisdiction is “ancillary to its jurisdiction over the main

action,” United States v. Farr & Co., 342 F.2d 383, 384

n.1 (2d Cir. 1965), and no independent basis for jurisdic-

tion is necessary. See Fed. R. Civ. P. 14(a); Agrashell, Inc.

y. Bernard Sirotta Co. 344 F.2d 583, 585 (2d Cir. 1965;

Dery v. Wyer, 265 F.2d 804, 807 (2d Cir. 1959); Ayer v.

General Dynamics Corp., 82 F.R.D. 115, 121 (S.D.N.Y.

1979); 3 J. Moore, Moore’s Federal Practice § 14.26, at

14-108 & n.6 (1982).

B. Failure to State a Cause of Action.

We find no merit in the State’s assertion that there is no

cause of action for indemnity. “It is nothing short of

simple fairness to recognize that ‘[a] person who, in

whole or in part, has discharged a duty which is owed by

him but which as between himself and another should

have been discharged by the other, is entitled to indem-

nity.’ Restatement, Restitution, § 76.” McDermott v. City

of New York, 50 N.Y.2d 211, 406 N.E.2d 260, 428

N.Y.S.2d 643, 646 (1980). Therefore, when “payment by

one person is compelled, which another should have

made . . . a contract to reimburse or indemnify is im-

plied by law.” Brown v. Rosenbaum, 287 N.Y. 510,

518-19, 41 N.E.2d 77 (1942); see also Dunn v. Uvalde

39a

Asphalt Paving Co., 175 N.Y. 214, 217-18, 67 N.E. 439

(1903); Oceanic S.N. Co. v. Compania Transatlantica

Espanola, 134 N.Y. 461, 465-68, 31 N.E. 987 (1892); City

of Brooklyn v. Brooklyn City R.R. Co., 47 N.Y. 475,

486-87 (1872); Leflar, Contribution and Indemnity Be-

tween Tortfeasors, 81 U. of Pa. L. Rev. 130, 147 (1932);

Meriam & Thornton, /ndemnity Between Tortfeasors: An

Evolving Doctrine in the New York Court of Appeals, 25

N.Y.U.L. Rev. 845 (1950).

C. Eleventh Amendment Immunity.

The State argues that the eleventh amendment is a bar

to the Counties’ claim against it. The amendment

provides:

The judicial power of the United States shall not

be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.

We agree with tne district court that the eleventh

amendment is not a bar to action against the State of New

York. The State’s acquisition of the Oneidas’ land was in

subordination to the power of Congress to legislate re-

garding Indian lands, pursuant to Article 1, Section 8 of

the Constitution.” The 1790 and 1793 Acts of Congress

placed New York on notice that Congress had exercised

its power to regulate commerce with the Indians.” Thus,

23 “By empowering Congress to regulate commerce, then, the States

necessarily surrendered any portion of their sovereignty that would

stand in the way of such regulation.” Parden, 377 U.S. at 192.

24 Section 8 of the 1793 Act prohibited purchases of Indian lands not

negotiated “under the authority of the United States.” See supra note

40a

anything New York thereafter did with respect to Indian

lands carried with it a waiver of the State’s eleventh

amendment immunity. See Edelman v. Jordan, 415 U.S.

651, 672 (1974); Employees v. Missouri Public Health &

Welfare Dept., 411 U.S. 279, 283-84 (1973).”

In Parden v. Terminal Ry. Co., 377 U.S. 184 (1964), the

state of Alabama owned and operated a railroad in

interstate commerce. Alabama had commenced its rail-

road operation twenty years after the enactment of the

Federal Employers Liability Act, 45 U.S.C. §§ 51-60

(“FELA”). This Act permitted a railroad employee to sue

his or her employer for personal injuries sustained in the

course of employment. The Court found that Congress

had conditioned operation of a railroad on acceptance of

potential FELA liability and any damage suits arising

therefrom; by starting the railroad after the FELA had

been enacted, Alabama had constructively consented to a

waiver of its immunity. 377 U.S. at 192; see also County

of Monroe v. State of Florida, 678 F.2d 1124, 1133 (2d

Cir. 1982), cert. denied, 103 S. Ct. 762 (1983). The

importance of the chronology in Parden became readily

apparent after the Supreme Court’s subsequent decisions

in Edelman and Employees. Unlike Parden, “{i)n neither

of those cases did the state have sufficient notice that it

would be liable for damages if it participated in the

7. Similarly, section 4 of the 1790 Act stated “it}hat no sale of lands

made by Indians. . . shall be valid to any person or persons, or to any

a

25 The Supreme Court has not stated the necessity of proving state

waiver of immunity in the fourteenth amendment context. See, @.2.,

Fitzpatrick v. Bitzer, 427 U.S. at 456. By ratifying the fourteenth

amendment after the eleventh amendment, the states can be said to

have waived their immunity in all cases in which Congress exercises its

enforcement power under section 5 of the fourteenth amendment.

4la

federal programs.” County of Monroe, 678 F.2d at 1134.

In Employees, Missouri had been operating hospitals long

before the 1966 amendment extended the coverage of the

FELA to state employees. In Edelman, similarly, Illinois

was faced with a federal statute that appeared to impose

only the sanction of future funding curtailment, and not a

damage suit for benefits wrongfully withheld. Neither

Illinois nor Missouri thus had “sufficient notice that it

would be liable for damages if it participated in the

federal programs.” /d. As a result, neither state had a

“real option to discontinue its participation in the activi-

ties subject to federal regulation and forego the accom-

panying benefits.” /bid. The choice between terminating

“vital public services” and waiving eleventh amendment

immunity was “no true choice at all.” Employees, 411

U.S. at 296 (Marshai!, J., concurring).

The instant case is analogous to Parden. The 1793 Act

was enacted two years prior to the state’s purchase of

Oneida land. Thus, the State had adequate notice that it

was subject to the statute’s strictures. See generally supra.

As the district court noted, on several occasions President

Washington and Secretary Knox urged New York to

comply with the 1793 Act. See 434 F. Supp. at 534-35.

The state chose to ignore their admonitions. The State’s

proprietary purchase of Indian land thus was an act

wholly outside “the sphere that is exclusively its own and

enter[ed the state] into activities subject to congressional

regulation . . . .” Parden, 377 U.S. at 196. The State’s

act, “with its ‘eyes wide open,’ ” County of Monroe, 678

F.2d at 1134, quoting Edelman, 415 U.S. at 693

(Marshall, J., dissenting), “subjects itself to that regula-

tion as fully as if it were a private person or corporation.”

Parden, 377 U.S. at 196. Therefore, we agree with the

district court’s determination that New York impliedly

42a

consented to a waiver of its eleventh amendment immu-

nity.

7 * * 7 .

We affirm the judgment of the district court-which held

the Counties liable for illegal occupation of the Oneida

land, and its judgment that the State of New York musi

indemnify the Counties for any damages assessed against

them.

We remand for further proceedings to determine the

good faith claims of the Counties as they bear on any

set-off for improvements made on the property, and for

recomputation of damages.

7

MESKILL, Circuit Judge, dissenting:

I respectfully dissent.

The implications of the majority’s decision are far

reaching and I believe that the decision is wrong. The

present dispute involves 871.92 acres of land and a

judgment for $16,694, plus interest, for two years’ use

thereof, not an unusually significant amount in and of

itself. But the court does not specify any limiting princi-

ples in this area. I see nothing in the majority’s opinion

which, when coupled with our decision in Oneida Indian

Nation of New York v. New York, 691 F.2d 1070 (2d Cir.

1982), would prevent the Oneida or any other tribe from

suing for the full value of all land taken from them at any

time during our nation’s history in contravention of

federal law—to say nothing of the possibility of bringing

an action for ejectment. Courts should be reluctant to

invite such potentially staggering claims on the skimpy

authority relied on today by the majority.

43a

This is not to deny the wrongs that Indian tribes have

suffered. They do exist and surely require attention.

However, the remedy should not be created by a court of

law acting in an environment of legal uncertainty. These

are essentially political problems which require a compre-

hensive solution that the judiciary cannot provide in one

sitting.' Today’s decision is likely to interfere with rather

than advance the federal government’s policies towards

Indians.

To decide that Indian land claims should be resolved by

judicial fiat is not only unwise, it is also unnecessary. The

Indian tribes have remedies available without resort to the

federal courts. Congress has established administrative

procedures to resolve Indian land claims and the federal

government can sue in federal court to enforce Indian

land rights.’ If the existing federal administrative mecha-

nism is ineffective, the Indians’ proper remedy is not in

the federal courts, but rather in Congress.

! The Indian tribes are considered sovereigns “which, by government

structure, culture, and source of sovereignty, are in many ways foreign

to the constitutional institutions of the Federal and State Govern-

ments.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 71 (1978); see

also Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 139-40 (1982);

United States v. Wheeler, 435 U.S. 313, 322-23 (1978). Relations with

Indian tribes can thus be analogized to relations with foreign nations.

The Supreme Court has shown great reluctance to interfere with or

take actions that might embarrass the federal political branches’

conduct of foreign affairs, see, e.g., Alfred Dunhill of London, Inc. v.

Republic of Cuba, 425 U.S. 682, 697 (1976) (piurality opinion); First

Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 767 (1972)

(plurality opinion); Banco Nacional de Cuba v. Sabbatino, 376 U.S.

398, 431-33 (1964); Mexico v. Hoffman, 324 U.S. 30, 35 (1945); The

Schooner Exchange v. McFaddon, \\ U.S. (7 Cranch) 116, 146 (1812)

(Marshall, C.J.).

2 See United States v. Santa Fe Pacific R.R. Co., 314 U.S. 339 (1941);

United States v. Candelaria, 271 U.S. 432 (1926); Cramer v. United

States, 261 U.S. 219 (1923).

44a

I

The majority holds today that the Oneida may main-

tain a direct action to recover damages for wrongful

occupancy. Despite the majority’s claim to the contrary,

this is truly a novel legal principle. There never has been,

and this Court should not now create, a federal common

law action. No case has ever held that an Indian tribe may

maintain a direct action for damages based upon federal

common law.

From the outset of the Union, Indians were considered

wards of the United States; the federal government as-

sumed the role of their guardian. See, e.g., United States

v. Sandoval, 231 U.S. 28, 46 (1913); Cherokee Nation v.

Georgia, 30 U.S. (5 Pet.) 1, 17 (1831) (Marshall, C.J.)

(“[T]hey are in a state of pupilage; their relation to the

United States resembles that of a ward to his guardian.

They look to our government for protection; rely upon its

kindness and its power; appeal to it for relief to their

wants ... .); cf. United States v. Kagama, 118 U.S.

375, 384 (1886) (“From their very weakness and helpless-

ness, so largely due to the course of dealing of the Federal

Government with them and the treaties in which it has

been promised, there arises the duty of protection, and

with it the power. This has always been recognized by the

Executive and by Congress, and by this court, whenever

the question has arisen.”).

From the special guardianship relation between the

United States and the Indian tribes, it can be inferred that

the Indians should be subject to liabilities under federal

law only when Congress sets up a statutory scheme. This

has long been settled law. See, e.g., United States v.

United States Fidelity & Guaranty Co., 309 U.S. 506, 512

(1940) (reaffirming that tribal sovereign immunity is coex-

45a

tensive with that of the United States; “[t]hese Indian

Nations are exempt from suit without Congressional

authorization.”). Similarly, it follows that their federal

rights should also be based on specific congressional acts.

Far from a leap of logic, this is equally settled law:

The civil rights incident to States and individuals as

recognized by what may be called the “law of the

land” have not been accorded either to Indian na-

tions, tribes, or Indians. Whenever they have as-

serted a legal capacity in the maintenance of their

rights, it has been in pursuance of some statute of the

United States specially conferring upon them the civil

rights of suitors. In all the cases in this court in

which the interest of an Indian tribe has been the

subject of litigation the proceeding has been under

special statute conferring the right upon the claimant

to bring a suit. The ordinary jurisdiction as to

persons has never been sought to enforce against the

United States the fullfillment of their obligations or

the discharge of their dutics.

Jaeger v. United States, 27 Ct. Cl. 278, 284-85 (1892)

(emphasis supplied).’

Special statutes giving Indians the rights of suitors were

necessary because it was inconceivable to lawmakers and

judges in the era of early American common law that

Indian tribes would resort to courts of law to enforce

their legal rights. See Cherokee Nation v. Georgia, 30

U.S. (5 Pet.) at 17 (Marshall, C.J.) (“At the time the

constitution was framed, the idea of appealing to an

American court of justice for an assertion of right or a

3 See Karrahoo v. Adams, 14 F. Cas. 134 (C.C.D. Kan. 1870) (Federal

circuit court had no jurisdiction in a case involving a non-citizen

Indian whose complaint did not raise a federal question).

46a

redress of wrong, had perhaps never entered the mind of

an Indian or of his tribe.”). Thus, viewed from a common

law perspective, it is apparent that there never existed a

federal common law private cause of action for damages.

Assuming arguendo that a federal common law cause

of action in favor of the Indians existed, it was preempted

by the Trade and Intercourse Acts.

When Congress addresses directly and comprehensively

a question previously governed by federal or state com-

mon law, that common law is preempted. Middlesex

County Sewerage Authority v. National Sea Clammers

Association, 453 U.S. 1 (1981). While the majority does

not dispute this, it finds that Congress did not intend to

preempt the field because the Trade and Intercourse Acts

were not comprehensive statutes. This explanation ig-

nores existing Supreme Court case law on preemption and

improperly addresses the issue of congressional intent.

The majority points out that the Acts “did not speak

directly to the question of the Indians’ ability to enforce

their possessory rights by an action in ejectment.”* But

Congress need not specifically legislate on a subject in

order to preempt a particular field. In Hines v. Davido-

witz, 312 U.S. 52 (1941), the Supreme Court held a

Pennsylvania alien registration statute invalid under the

Supremacy Clause partly because the state statute inter-

fered with the federal scheme of registration, even though

the state and federal statutes were not explicitly contra-

dictory and there was no express congressional intent to

override state legislation. The Court noted that

“fe]xperience has shown that international controversies

4 It is not surprising that the Act did not expressly refer to an

“existing” federal common law right. Of all the cases cited by the

majority to indicate the existence of such a cause of action, not one

was decided before 1793.

47a

of the greatest moment, sometimes even leading to war,

may arise from real or imagined wrongs to another’s

subjects inflicted, or permitted, by a government.” 312

U.S. at 64. The Court thus reasoned that state law which

potentially conflicted with federal law in this sensitive

area had to fall because the federal government was the

agent of foreign policy in our country and, as the agent, it

had determined that a particular scheme of registration

was necessary in order to avoid friction with other na-

tions.

The majority ignores the fact that the legislation at the

heart of the instant dispute addresses issues of in-

tergovernmental relations as sensitive as those in Hines.

As the majority notes, President Washington and Secre-

tary of War Knox urged congressional protection of

Indian lands in order to reassure Indians who had grown

“restive.” This protection was provided by the 1790 Act;

criminal and other sanctions were added in 1793 in order

to put teeth in the 1790 Act. The statutes at issue in Hines

and in the instant dispute were passed for the same

purpose, to avoid war. There can be no justification for

finding preemption of state statutory law in the former

case but not preemption of federal common law in the

latter. Indeed, the present holding turns the normal pre-

sumptions about preemption on their respective heads, as

federal courts are usually quicker to find preemption of

federal common law than state law. Jn re Oswego Barge

Corp., 664 F.2d 327 (2d Cir. 1981). See Illinois v. Out-

board Marine Corp., 680 F.2d 473, 478 (7th Cir. 1982).

The majority also tries to determine whether the early

congressional scheme was comprehensive from a late

twentieth century perspective. But, we must remember

that it is the intent of the 2nd Congress which we search

for here, not the perceived views of a Congress elected

48a

many years later. It is true that the 1790 and 1793 Acts

were not comprehensive by today’s standards, but they

did proscribe certain acts and provide civil and criminal

sanctions. Given the hypertechnical nature of the law in

the late 18th century, it is unrealistic to believe that

Congress intended to allow remedies concurrent to those

explicitly promulgated.

The majority’s reliance on the language in United

States v. Santa Fe Pacific Railroad Co., 314 U.S. 339,

354 (1941), is inappropriate, inasmuch as that case in-

volved a mid-19th century statute which allegedly abol-

ished the Indians’ aboriginal rights. There, the Supreme

Court was talking about the extinguishment of undisput-

ed title to land, not the preemption of a questionable

right of a ward to a private cause of action.

I]

The majority states that the Nonintercourse Acts were

passed to protect Indian tribes and determines, on the

basis of the language cited in Merrill Lynch, Pierce,

Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 374-75

(1982), that when a statute is enacted in order to benefit a

special class of beneficiaries, the judiciary will normally

recognize a remedy for class members if the statute was

passed prior to Cort v. Ash, 422 U.S. 66 (1975). There-

fore, reasons the majority, when Congress passed the

aforementioned Acts it must have intended that the bene-

ficiaries would be able to enforce their rights by a private

action. While superficially appealing, this argument lacks

the support of either precedent or legislative history.

Merrill Lynch does not address the question whether a

private cause of action should be implied where Congress

has explicitly granted the federal government the power

49a

to sue to protect the rights of the particular group

benefited by the statute.

The majority is correct that the Acts were passed if

order to protect Indian tribes. However, it takes a great

leap of logic to suppose that the Congresses that passed

the Acts intended the Indian tribes to have a private cause

of action for violations of these Acts. It is difficult to

believe that at that time Congress would have left it to the

courts to imply such a significant and far reaching rem-

edy, particularly when we remersiber that the Acts were

passed in order to avoid war with the Indian tribes.

Obviously Congress never intended the remedy to be

available.

I believe that the lower courts that have assumed a

private cause of action for a violation of the Acts, see,

e.g., Mashpee Tribe v. New Seabury Corp., 427 F.Supp.

899, 903 (D. Mass. 1977); Schaghticoke Tribe of Indians

v. Kent School Corp., 423 F.Supp. 780, 784 (D. Conn.

1976); Narragansett Tribe of Indians v. Southern Rhode

Island Land Development Corp., 418 F.Supp. 798, 805 &

n.3 (D.R.I. 1976), are in error. They use neither legislative

history nor valid precedent’ to support their position.

Similarly, the need for private enforcement because of

poor government performance in this area should not

affect the outcome here. The government’s failure to

enforce Indian rights vigorously provides a strong argu-

ment for the need for private enforcement. That argu-

ment should be made to Congress, however. We should

not perform a legislative function. Furthermore, when

5 These cases all rest upon decisions that recognized a private right of

action to Indians when the United States had the power to sue on the

same cause of action and to seek the same relief. They do not support

the proposition that if the government has a statutorily based power tc

pursue a remedy, the Indians may bring their own action for a different

remedy that does not arise out of the same statute.

50a

construing a statute passed in the late 18th century, we

should not consider events which transpired, or failed to

transpire, in the subsequent 200 years in order to shed

light on congressional! intent.

The majority states that even under traditional Cort v.

Ash, 422 U.S. 66 (1975), criteria, a private cause of action

may be maintained. | believe the opposite conclusion to

be the case here.

This case does not satisfy the second prong of the Cort

test, namely, whether there is “any indication of legisla-

tive intent, explicit or implicit, either to create such a

remedy or to deny one.” 422 U.S. at 78. I believe that

congressional silence on this question indicates a desire

not to include a private cause of action as a remedy.

The majority states that Congress intended in the 1793

Act to provide “maximum protection” to Indian land.

Assuming this to be true, Congress probably never be-

lieved private action necessary in order to accomplish

maximum protection. The Act provided for criminal

sanctions for violations and included a provision author-

izing the executive branch to remove viclators from

Indian land.® These sanctions if utilized would appear to

be full and adequate remedies for the conduct that Con-

gress wished to proscribe. Furthermore, it would have

been an easy matter for Congress to provide for a private

cause of action in favor of Indian tribes or to expressly

continue an existing common law remedy if one existed.

The failure to do so indicates to me that Congress either

did not wish to enact such a remedy or that it never

considered the issue. Either explanation would produce

the same result—no private cause of action was intended.

6 See Majority op. n.12.

5la

The court’s reference to Transamerica Mortgage Advi-

sors, Inc. v. Lewis, 444 U.S. 11, 18-19 (1979), is inappro-

priate. There, the Court dealt with a statute, section 215

of the Investment Advisers Act of 1940, that only de-

clared certain contracts void. Neither sanctions, nor rem-

edies, nor any mechanism for voiding contracts were

explicitly provided. By contrast, the 1790 Act, as

amended by the Act of 1793, did explicitly provide

sanctions and an enforcement mechanism. Indeed, these

later enforcement provisions were included because the

1790 Act lacked them.

By contrast, the instant dispute is analogous to the

claim in Transamerica for a private cause of action under

section 206 of the Investment Advisers Act. Congress

expressly provided judicial and administrative means to

enforce section 206 rights, including criminal penalties

and authorization to the SEC to enjoin compliance with

the Act. 444 U.S. at 20. The Court stated that “[i]n view

of these express provisions for enforcing the duties im-

posed by § 206, it is highly improbable that ‘Congress

absentmindedly forgot to mention an intended private

action.’ ” Jd. (citation omitted). As the Supreme Court

noted, “[I]t is an elemental canon of statutory construc-

tion that where a statute expressly provides a particular

remedy or remedies, a court must be chary of reading

others into it. ‘When a statute limits a thing to be done in

a particular mode, it includes the negative of any other

mode.’ ” Jd. at 19-20 (citation omitted).

The same reasoning is applicable to the present case.

Because Congress explicitly provided for remedies and

sanctions in the 1793 Act, it is “highly improbable” that it

forgot to include a private cause of action. This is

particularly true in view of the importance that Congress

52a

and the President placed on the matter of Indian affairs

in the 1790s.

The majority’s characterization of the 1822 Act is not

convincing. The provision in the 1822 Act referring to

Indians as parties does not only make sense, as the

majority claims, “if Congress had intended the Trade and

Intercourse Acts to authorize Indians to appear as plain-

tiffs to enforce the Acts, as well as to be defendants.”

This provision also applies to a suit in which the govern-

ment seeks to enforce Indians’ rights on their behalf. See

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17

(1831). In such a case, the Indians in question would be

the real parties in interest. Congress could have been

indicating that in this type of action the burden of proof

would not be on the government as plaintiff-guardian.

In sum, I believe there is no basis upon which the

majority can imply a private cause of action by Indians to

recover damages for wrongful possession. To hol

otherwise is a novel proposition of law, with conse-

quences too broad to be established on such shaky

grounds. Demands for redress of violations of the Acts

are better directed to the other branches of the federal

government.

I would reverse and remand with directions to dismiss

the complaint.

53a

TRADE AND INTERCOURSE ACT OF 1793

An Act to regulate Trade and Intercourse, with the Indian

Tribes.

Section 1. Be it enacted by the Senate and House of Repre-

sentatives of the United States of America in Congress as-

sembled, That no person shall be permitted to carry on any

trade or intercourse with the Indian tribes, without a license

under the hand and seal of the superintendent of the depart-

ment, or of such other person, as the President of the United

States shall authorize to grant licenses for that purpose; which

superintendent, or person so authorized shall, on application,

issue such license for a term not exceeding two years, to any

proper person, who shall enter into bond with one or more

sureties approved of by the President of the United States, in

the penal sum of one thousand dollars, payable to the United

States, conditioned for the true and faithful observance of such

rules, regulations and restrictions, as are or shall be made, for

the government of trade and intercourse with the Indian

tribes. The said superintendents, and persons licensed, as

aforesaid, shall be governed, in all things touching the said

trade and intercourse, by such rules and regulations, as the

President of the United States shall prescribe.

Sec. 2. And be it further enacted, That the superintendent,

or person issuing such license, shall have full power and

authority to recall the same, if the person so licensed shall

transgress any of the regulations or restrictions, provided for

the government of trade and intercourse with the Indian

tribes, and shall put in suit such bonds, as he may have taken,

on the breach of any condition therein contained.

Sec. 3. And be it further enacted, That every person, who

shall attempt to trade with the Indian tribes, or shall be found

in the Indian country, with such merchandise in his posses-

sion, as are usually vended to the Indians, without lawful

54a

license, shall forfeit all the merchandise offered for sale to the

Indians, or found in his possession, in the Indian country, and

shall, moreover, be liable to a fine not exceeding one hundred

dollars, and to imprisonment not exceeding thirty days, at the

discretion of the court, in which the trial shall be: Provided,

That any citizen of the United States, merely travelling

through any Indian town or territory, shall be at liberty to

purchase, by exchange or otherwise, such articles as may be

necessary for his subsistence, without incurring any penalty.

Sec. 4. And be it further enacted, That if any citizen or in-

habitant of the United States, or of either of the territorial

districts of the United States, shall go into any town, settle-

ment, or territory, belonging to any nation or tribe of Indians,

and shall there commit murder, robbery, larceny, trespass or

other crime, against the person or property of any friendly In-

dian or Indians, which, if committed within the jurisdiction of

any state, or within the jurisdiction of either of the said dis-

tricts, against a citizen thereof, would be punishable by the

laws of such state or district, such offender shall be subject to

the same punishment, as if the offence had been committed

within the state or district, to which he or she may belong,

against a citizen thereof.

Sec. 5. And be it further enacted, That if any such citizen

or inhabitant shall make a settlement on lands belonging to

any Indian tribe, or shall survey such lands, or designate their

boundaries, by marking trees, or otherwise, for the purpose of

settlement, he shall forfeit a sum not exceeding one thousand

dollars, nor less than one hundred dollars, and suffer im-

prisonment not exceeding twelve months, in the discretion of

the court, before whom the trial shall be: And it shall, more-

over be lawful for the President of the United States, to take

such measures, as he may judge necessary, to remove from

lands belonging to any Indian tribe, any citizens or inhabitants

of the United States, who have made, or shall hereafter make,

or attempt to make a settlement thereon.

PT nt: Be i i

55a

Sec. 6. And be it further enacted, That no person shall be

permitted to purchase any horse of an Indian, or of any white

man in the Indian territory, without special license for that

purpose; which license, the superintendent, or such other per-

son, as the President shall appoint, is hereby authorized to

grant, on the same terms, conditions and restrictions, as other

licenses are to be granted under this Act: Provided also, That

every person, who shall purchase a horse or horses, under such

license, before he exposes such horse or horses for sale, and

within fifteen days after they shall have been brought out of

the Indian country, shall make a particular return, to the

superintendent, or other person, from whom he obtained his

license, of every horse by him purchased, as aforesaid, describ-

ing such horses, by their color, height and other natural or ar-

tificial marks, under the penalties contained in their respective

bonds. And every person, purchasing a horse or horses, as

aforesaid, in the Indian country, without a special license,

shall, for every horse thus purchased and brought into any set-

tlement of citizens of the United States forfeit, for every horse

thus purchased, or brought from the Indian country, a sum

not more than one hundred dollars, nor less than thirty dol-

lars, to be recovered in any court of record having competent

jurisdiction. And every person, who shall purchase a horse,

knowing him to be brought out of the Indian territory, by any

person or persons not licensed, as above, to purchase the same,

shall forfeit the value of such horse: one half for the benefit of

the informant, the other half for the use of the United States,

to be recovered, as aforesaid.

Sec. 7. And be it further enacted, That no agent, superin-

tendent, or other person authorized to grant a license to trade,

or purchase horses, shall have any interest or concern in any

trade with the Indians, or in the purchase or sale of any horses,

to or from any Indian; and that any person, offending herein,

shall forfeit one thousand dollars, and be imprisoned, at the

56a

discretion of the court, before which the conviction shall be

had, not exceeding twelve months.

Sec. 8. And be it further enacted, That no purchase or

grant of lands, or of any title or claim thereto, from any In-

dians or nation or tribe of Indians, within the bounds of the

United States, shall be of any validity in law or equity, unless

the same be made by a treaty or convention entered into pur-

suant to the constitution; and it shall be a misdemeanor, in

any person not employed under the authority of the United

States, in negotiating such treaty or convention, punishable by

fine not exceeding one thousand dollars, and imprisonment

not exceeding twelve months, directly or indirectly to treat

with any such Indians, nation or tribe of Indians, for the title

or purchase of arty lands by them held, or claimed: Provided

nevertheless, That it shall be lawful for the agent or agents of

any state, who may be present at any treaty, held with Indians

under the authority of the United States, in the presence, and

with the approbation of the commissioner/or commissioners of

the United States, appointed to hold the same, to propose to,

and adjust with the Indians, the compensation to be made for

their claims to lands within such state, which shall be extin-.

guished by the treaty. ‘*

Sec. 9. And be it further enacted, That in order to promote

civilization among the friendly Indian tribes, and to secure the

continuance of their friendship, it shall and may be lawful for

the President of the United States, to cause them to be fur-

nished with useful domestic animals, and implements of hus-

bandry, and also to furnish them with goods or money, im such

proportions, as he shall judge proper, and to appoint such per-

sons, from time to time, as temporary agents, to reside among

the Indians, as he shall think proper: Provided, That the

whole amount of such presents, and allowance to agents, shall

not exceed twenty thousand dollars per annum.

57a

Sec. 10. And be it further enacted, That the superio: courts

of each of the said territorial districts, and the circuit courts,

and other courts of the United States of similar jurisdiction in

criminal causes in each district of the United States, into

which any offender against this act shall be first brought, or in

which he shall be apprehended, shall have, and are hereby in-

vested with full power and authority, to hear and determine

all crimes, offences and misdemeanors against this act; such

courts proceeding therein, in the same manner, as if such

crimes, offences and misdemeanors had been committed

within the bounds of their respective districts: And in all

cases, where the punishment shall not be death, the county

courts of quarter sessions in the said territorial districts, and

the district courts of the United States, in their respective

districts, shal] have, and are hereby invested with like power

to hear and determine the same.

Sec. 11. And be it further enacted, That it shall and may be

lawful for the President of the United States, and for the gov-

ernors of such territorial districts, respectively, on proof to

them made, that any citizen or citizens of the United States, or

of the said districts, or either of them, have been guilty of any

of the said crimes, offences or misdemeanors, within any

town, settlement or territory, belonging to any nation or tribe

of Indians, to cause such person or persons to be apprehended,

and brought into either of the United States, or of the said

districts, and to be proceeded against in due course of law.

And in all cases, where the punishment shall be death, it shall

be lawful for the governor of the district, into which the of-

fender may be first brought, or in which he may be appre-

hended, to issue a commission of oyer and terminer to the su-

perior judges of the district, who shall have full power and

authority to hear and determine all such capital cases, in the

same manner, as the superior courts of such districts have, in

their ordinary sessions: And when the offender shall be

58a

brought into, or shall be apprehended in any of the United

States, except Kentucky, it shall be lawful for the President of

the United States, to issue a like commission to any two judges

of the supreme court of the United States, and the judge of the

district, in which the offender may have been appreher.ded or

first brought; which judges, or any two of them, shall have the

same jurisdiction in such capital cases, as the circuit court of

such district, and shall proceed to trial and judgment, in the

same manner, as such circuit court might or could do.

Sec. 12. And be it further enacted, That all fines and foriei-

tures, which shall accrue under this act, shall be, one half to

the use of the informant, and the other half, to the use of the

United States, except where the prosecution shall be first in-

stituted on behalf of the United States, in which case, the

whole shall be to their use.

Sec. 13. And be it further enacted, That nothing in this act

shall be construed to prevent any trade or intercourse with In-

dians living on lands surrounded by settlements of the citizens

of the United States, and being within the jurisdiction of any

of the individual states.

Sec. 14. And be it further enacted, That all and every other

act and acts coming within the purview of this act, shall be

and are hereby repealed.

Sec. 15. And be it further enacted, That this act shall be in

force, for the term of two years, and from thence to the end of

the then next session of Congress, and no longer.

APPROVED, March 1, 1793.

59a

TRADE AND INTERCOURSE ACT OF 1796

An Act to regulate Trade and Intercourse with the Indian

Tribes, and to preserve Peace on the Frontiers.

Section 1. Be it enacted by the Senate and House of Repre-

sentatives of the United States of America in Congress as-

sembled, That the following boundary line, established by

treaty between the United States and various Indian tribes,

shall be clearly ascertained, and distinctly marked, in all such

places, as the President of the United States shall deem neces-

sary, and in such manner as he shall direct, to wit: Beginning

at the mouth of Cayahoga river on Lake Erie, and running

thence up the same, to the portage between that and the

Tusearoras branch of the Muskingum; thence down that

branch, to the crossing place above Fort Lawrence; thence

westerly to a fork of that branch of the Great Miami river,

running into the Ohio, at, or near which fork, stood Laromie’s

store, and where commences the portage, between the Miami

of the Ohio, and Saint Mary’s river, which is a branch of the

Miami, which runs into Lake Erie; thence a westerly course to

Fort Recovery, which stands on a branch of the Wabash;

thence southwesterly, in a direct line to the Ohio, so as to in-

tersect that river, opposite the mouth of Kentucky or Cuttawa

river; thence down the said river Ohio, to the tract of one hun-

dred and fifty thousand acres, near the rapids of the Ohio,

which has been assigned to General Clark, for the use of

himself and his warriors; thence around the said tract, on the

line of the said tract, till it shall again intersect the said river

Ohio; thence down the same, to a point opposite the high

lands or ridge between the mouth of the Cumberland and

Tennessee rivers; thence easterly on the said ridge, to a point,

from whence, a southwest line will strike the mouth of Duck

river; thence still easterly on the said ridge, to a point forty

miles above Nashville; thence northeast, to Cumberland river;

thence up the said river, to where the Kentucky road crosses

60a

the same; thence to the top of Cumberlan.: mountain; thence

along Campbell’s line, to the river Clinch; thence down the

said river, to a point from which a line shall pass the Holsten,

at the ridge, which divides the waters running into Little

River, from those running into the Tennessee; thence south, to

the North Carolina boundary; thence along the South

Carolina Indian boundary, to and over the Ocunna mountain,

in a southwest course, to Tugelo river; thence in a direct line,

to the top of the Currahee mountain, where the Creek line

passes it; thence to the head or source of the main south branch

of the Oconee river, called the Appalachee; thence down the

middle of the said main south branch and river Oconee, to its

confluence with Oakmulgee, which forms the river Altamaha;

thence down the middle of the said Altamaha, to the old line

on the said river; and thence along the said old line to the river

Saint Mary’s; Provided always, that if the boundary line be-

tween the said Indian tribes and the United States, shall, at

any time hereafter, be varied, by any treaty which shall be

made between the said Indian tribes and the United States,

then all the provisions contained in this act, shall be construed

to apply to the said line so to be varied, in the same manner, as

the said provisions now apply to the boundary line herein

before recited.

Sec. 2. And be it further enacted, That if any citizen of, or

other person resident in the United States, or either of the ter-

ritorial districts of the United States, shall cross over, or go

within the said boundary line, to hunt, or in any wise destroy

the game; or shall drive, or otherwise convey any stock of hors-

es or cattle to range, on any lands allotted or secured by treaty

with the United States, to any Indian tribes, he shall forfeit a

sum not exceeding one hundred dollars, or be imprisoned not

exceeding six months.

Sec. 3. And be it further enacted, That if any such citizen,

or other person, shall go into any country, which is allotted, or

eee Ss £8 SD 6 ee 4 ee oe *

6la

secured by treaty as aforesaid to any of the Indian tribes south

of the river Ohio, without a passport first had and obtained

from the governor of some one of the United States, or the of-

ficer of the troops of the United States commanding at the

nearest post on the frontiers, or such other person, as the Presi-

dent of the United States may, from time to time, authorize to

grant the same, shall forfeit a sum not exceeding fifty dollars,

or be imprisoned, not exceeding three months.

Sec. 4. And be it further enacted, That if any such citizen

or other person, shall go into any town, settlement or territory,

belonging, or secured by treaty with the United States, to any

nation or tribe of Indians, and shall there commit robbery,

larceny, trespass or other crime, against the person or property

of any friendly Indian or Indians which would be punishable,

if committed within the jurisdiction of any state, against a

citizen of the United States; or, unauthorized by law, and with

a hostile intention, shall be found on any Indian land, such of-

fender shall forfeit a sum not exceeding one hundred dollars,

and be imprisoned not exceeding twelve months; and shall

also, when property is taken or destroyed, forfeit arid pay to

such Indian or Indians, to whom the property taken and de-

stroyed belongs, a sum equal to twice the just value of the

property so taken or destroyed: And if such offender shall be

unable to pay a sum at least equal to the said just value,

whatever such payment shall fall short of the said just value,

shali be paid out of the treasury of the United States: Provided

nevertheless, that no such Indian shall be entitled to any pay-

ment out of the treasury of the United States, for any such

property taken or destroyed, if he, or any of the nation to

which he belongs, shall have sought private revenge, or at-

tempted to obtain satisfaction by any force or violence.

Sec. 5. And be it further enacted, That if any such citizen,

or other person, shall make a settlement on any lands belong-

ing, or secured, or granted by treaty with the United States,

62a

to any Indian tribe, or shall survey, or attempt to survey, such

lands, or designate any of the boundaries, by marking trees, or

otherwise, such offender shall forfeit all his right, title and

claim, if any he hath, of whatsoever nature or kind the same

shall or may be, to the lands aforesaid, whereupon he shall

make a settlement, or which he shall survey, or attempt to

survey, or designate any of the boundaries thereof, by marking

trees or otherwise, and shall also forfeit a sum not exceeding

one thousand dollars and suffer imprisonment not exceeding

twelve months. And it shall, moreover, be lawful for the Pres-

ident of the United States, to take such measures and to

employ such military force, as he may judge necessary, to

remove from lands belonging, or secured by treaty, as afore-

said, to any Indian tribe, any such citizen or other person, who

has made or shall hereafter make, or attempt to make a settle-

ment thereon: And every right, title, or claim forfeited under

this act, shall be taken and deemed to be vested in the United

States, upon conviction of the offender without any other or

further proceeding.

Sec. 6. And be it further enacted, That if any such citizen,

or other person, shall go into any town, settlement or territory

belonging to any nation or tribe of Indians, and shall there

commit murder, by killing any Indian or Indians, belonging to

any nation or tribe of Indians in amity with the United States,

such offender, on being thereof convicted, shall suffer death.

Sec. 7. And be it further enacted, That no such citizen, or

other person, shall be permitted to reside at any of the towns,

or huntingcamps, of any of the Indian tribes as a trader, with-

out a license under the hand and seal of the superintendent of

the department, or of such other person as the President of the

United States shall authorize to grant licenses for that purpose:

which superintendent, or person authorized, shall, on applica-

tion, issue such license, for a term not exceeding two years,

who shall enter into bond, with-one or more sureties, ap-

OE ee tee a MM heme tie A

63a

proved of by the superintendent, or person issuing such

license, or by the President of the United States, in the penal

sum of one thousand dollars, conditioned for the true and

faithful observance of such regulations and restrictions, as are,

or shall be made for the government of trade and intercourse

with the Indian tribes: and the superintendent, or person is-

suing such license, shall have full power and authority to recall

the same, if the person so liceased shall transgress any of the

regulations or restrictions provided for the government of

trade and intercourse with the Indian tribes; and shall put in

suit, such bonds as he may have taken, on the breach of any

condition therein contained.

Sec. 8. And be it further enacted, That any such citizen or

other person, who shall attempt to reside in any town, or

hunting camp, of any of the Indian tribes, as a trader without

such license, shall forfeit all the merchandise offered for sale,

to the Indians, or found in his possession, and shall, moreover,

be liable to a fine not exceeding one hundred dollars, and to

imprisonment not exceeding thirty days.

Sec. 9. And be it further enacted, That if any such citizen,

or other person, shall purchase, or receive of any Indian, in the

way of trade or barter, a gun, or other article commonly used

in hunting, any instrument of husbandry, or cooking utensil,

of the kind usually obtained by the Indians, in their inter-

course with white people, or any article of clothing, excepting

skins or furs, he shall forfeit a sum not exceeding fifty dollars,

and be imprisoned not exceeding thirty days.

Sec. 10. And be it further enacted, That no such citizen or

other person, shall be permitted to purchase any horse of an

Indian, or of any white man in the Indian territory, without

special license for that purpose; which license, the superin-

tendent, or such other person as the President shall aproint, is

hereby authorized to grant, on the same terms, conditions and

restrictions, as other licenses are to be granted under this act:

64a

and any such person, who shall purchase a horse or horses,

under such license, before he exposes such horse or horse for

sale, and within fifteen days after they have been brought out

of the Indian country, shall make a particular return to the

superintendent, or other person, from whom he obtained his

license, of every horse purchased by him, as aforesaid; describ-

ing such horses, by their colour, height, and other natural or

artificial marks, under the penalty contained in their respec-

tive bonds. And every such person, purchasing a horse or

horses, as aforesaid, in the Indian country, without a special

license, shall, for every horse thus purchased, and brought into

any settlement of citizens of the United States, forfeit a sum

not exceeding one hundred dollars, and be imprisoned not ex-

ceeding thirty days. And every person, who shall purchase a

horse, knowing him to be brought out of the Indian territory,

by any person or persons, not licensed, as above, to purchase

the same, shall forfeit the value of such horse.

Sec. 11. And be it further enacted, That no agent, superin-

tendent, or other person authorized to grant a license to trade,

or purchase horses, shall have any interest or concern in any

trade with the Indians, or in the purchase or sale of any horse,

to or from any Indian, excepting for, and on account of the

United States. And any person offending herein, shall forfeit a

sum not exceeding one thousand dollars, and be imprisoned

not exceeding twelve months.

Sec. 12. And be it further enacted, That no purchase,

grant, lease or other conveyance of lands, or of any title or

claim thereto, from any Indian, or nation or tribe of Indians,

within the bounds of the United States, shall be of any validi-

ty, in law or equity, unless the same be made by treaty, or con-

vention, entered into pursuant to the constitution: and it shall

be a misdemeanor in any person, not employed under the

authority of the United States, to negotiate such treaty or con-

vention directly or indirectly, to treat with any such Indian

65a

nation, or tribe of Indians, for the title or purchase of any

lands by them held, or claimed, punishable by fine not exceed-

ing one thousand dollars, and imprisonment not exceeding

twelve months: Provided nevertheless, that it shall be lawful

for the agent or agents of any state, who may be present at any

treaty held with Indians, under the authority of the United

States, in the presence, and with the approbation of the com-

missioner or commissioners of the United States, appointed to

hold the same, to propose to, and adjust with the Indians, the

compensation to be made, for their claims to lands within such

state, which shall be extinguished by the treaty.

Sec. 13. And be it further enacted, That in order to pro-

mote civilization among the friendly Indian tribes, and to

secure the continuance of their friendship, it shall be lawful

for the President of the United States, to cause them to be fur-

nished with useful domestic animals, and implements of hus-

bandry, and with goods or money, as he shall judge proper,

and to appoint such persons, from time to time, as temporary

agents, to reside among the Indians, as he shall think fit: Pro-

vided, that the whole amount of such presents, and allowance

to such agents, shall not exceed fifteen thousand dollars per

annum.

Sec. 14. And be it further enacted, That if any Indian or

Indians, belonging to any tribe in amity with the United

States, shall come over or across the said boundary line, into

any state or territory inhabited by citizens of the United States,

and there take, steal or destroy any horse, horses, or other

property, belonging to any citizen or inhabitant of the United

States, or of either of the territorial districts of the United

States, or shall commit any murder, violence or outrage, upon

any such citizen, or inhabitant, it shall be the duty of such

citizen or inhabitant, his representative, attorney or agent, to

make application to the superintendent, or such other person

as the President of the United States shall authorize for that

66a

purpose; who, upon being furnished with the necessary

documents and proofs, shall, under the direction or instruction

of the President of the United States, make application to the

nation or tribe to which such Indian or Indians shall belong,

for satisfaction; and if such nation or tribe shall neglect or

refuse to make satisfaction, in a reasonable time, not exceeding

eighteen months, then it shall be the duty of such superin-

tendent, or other person authorized, as aforesaid, to make

return of his doings to the President of the United States, and

forward to him all the documents and proofs in the case, that

such further steps may be taken, as shall be proper to obtain

satisfaction for the injury: And, in the mean time, in respect

to the property so taken, stolen, or destroyed, the United

States guarantee to the party injured, and eventual indemnifi-

cation: Provided always, that if such injured party, his repre-

sentative, attorney, or agent, shall, in any way, violate any of

the provisions of this act, by seeking, or attempting to obtain

private satisfaction or revenge, by crossing over the line, on

any of the Indian lands, he shall forfeit all claim upon the

United States, for such indemnification: And provided also,

that nothing herein contained shall prevent the legal appre-

hension or arresting, within the limits of any state or district,

of any Indian having so offended: And provided further, that

it shall be lawful for the President of the United States, to

deduct such sum or sums, as shall be paid for the property

taken, stolen, or destroyed by any such Indian, out of the an-

nual stipend, which the United States are bound to pay to the

tribe, to which such Indian shall belong.

Sec. 15. And be it further enacted, That the superior courts

in each of the said territorial districts, and the circuit courts,

and other courts of the United States, of similar jurisdiction in

criminal causes, in each district of the United States, in which

any offender against this act shall be apprehended, or, agree-

ably to the provisions of this act, shall be brought for trial,

67a

shall have, and are hereby invested with, full power and

authority, to hear and determine all crimes, offences and mis-

demeanors, against this act; such courts proceeding therein, in

the same manner, as if such crimes, offences and misdemean-

ors had been committed within the bounds of their respective

districts: And in all cases, where the punishment shall not be

death, the county courts of quarter sessions in the said terri-

torial districts, and the district courts of the United States in

their respective districts, shall have, and are hereby invested

with like power to hear and determine the same, any law to

the contrary notwithstanding: And in all cases, where the

punishment shall be death, it shall be lawful for the governor

of either of the territorial districts, where the offender shall be

apprehended, or into which he shall be brought for trial, to

issue a commission of oyer and terminer, to the superior judges

of such district, who shall have full power and authority to

hear and determine all such capital cases, in the same manner,

as the superior courts of such district have in their ordinary ses-

sions: And when the offender shall be apprehended, or

brought for trial, into any of the United States, except Ken-

tucky, it shall be lawful for the President of the United States,

to issue a like commission to any one or more judges of the

supreme court of the United States, aud the judge of the dis-

trict, in which such offender may have been apprehended, or

shall have been brought for trial; which judges, or any two of

them, shall have the same jurisdiction in such capital cases, as

the circuit court of such district, and shall proceed to trial and

judgment, in the same manner, as such circuit court might or

could do. And the district courts of Kentucky and Maine shall

have jurisdiction of all crimes, offences and misdemeanors

committed against this act, and shall proceed to trial and judg-

ment, in the same manner, as the circuit courts of the United

States.

68a

Sec. 16. And be it further enacted, That it shall be lawful

for the military force of the United States, to apprehend every

person, who shall, or may be found in the Indian country,

over and beyond the said boundary line, between the United

States and the said Indian tribes, in violation of any of the pro-

visions or regulations of this act, and him or them immediately

to convey, in the nearest convenient and safe route, to the civil

authority of the United States, in some one of the three next

adjoining states or districts, to be proceeded against, in due

course of law: Provided, that no person, apprehended by

military force, as aforesaid, shall be detained longer than ten

days, after the arrest, and before removal.

Sec. 17. And be it further enacted, That if,any person, who

shall be charged with a violation of any of the provisions or

regulations of this act, shall be found within any of the United

States, or either of the territorial districts of the United States,

such offender may be there apprehended and brought to trial,

in the same manner, as if such crime or offence had been com-

mitted within such state or district; and it shall be the duty of

the military force of the United States, when called upon by

the civil magistrate, or any proper officer, or other person duly

authorized for that purpose, and having a lawful warrant, to

aid and assist such magistrate, officer, or other person author-

ized, as aforesaid, in arresting such offender, and him commit-

ting to safe custody, for trial according to law.

Sec. 18. And be it further enacted, That the amount of

fines, and duration of imprisonment, directed by this act as a

punishment, for the violation of any of the provisions thereof,

shall be ascertained and fixed, not exceeding the limits pre-

scribed, in the discretion of the court, before whom the trial

shall be had; and that all fines and forfeitures, which shall ac-

crue under this act, shall be, one half to the use of the inform-

ant, and the other half to the use of the United States: Except

where the prosecution shall be first instituted on bebalf of the

United States; in which case, the whole shall be to their use.

69a

Sec. 19. And be it further enacted, That nothing in this act

shall be construed to prevent any trade or intercourse with In-

dians living on lands surrounded by settlements of the citizens

of the United States, and being within the ordinary jurisdic-

tion of any of the individual states; or the unmolested use of a

road from Washington district, to Mero district; and of the

navigation of the Tennessee river, as reserved and secured by

treaty.

Sec. 20. And be it further enacted, That the President of

the United States be, and he is hereby authorized, to cause to

be clearly ascertained, and distinctly marked, in all such

places as he shall deem necessary, and in such manner as he

shall direct, any other boundary lines between the United

States and any Indian tribe, which now are, or hereafter may

be established by treaty.

Sec. 21. And be it further enacted, That all and every other

act and acts, coming within the purview of this act, shall be,

and they are hereby repealed: Provided, nevertheless, that all

disabilities, that have taken place, shall continue and remain;

all penalties and forfeitures, that have been incurred, may be

recovered; and all prosecutions and suits, that may have been

commenced, may be prosecuted to final judgment, under the

said act or acts, in the same manner, a; if the said act or acts

were continued, and in full force and virtue.

Sec. 22. And be it further enacted, That this act shall be in

force, for the term of two years, and from thence to the end of

the session of Congress next thereafter, and no longer.

APPROVED, May 19, 1796.

70a

TITLE 25, UNITED STATES CODE § 177

§ 177. Purchases or grants of lands from Indians

No purchase, grant, lease, or other conveyance of lands, or

of any title or claim thereto, from any Indian nation or tribe of

Indians, shall be of any validity in law or equity, unless the

same be made by treaty or convention entered into pursuant to

the Constitution. Every person who, not being employed

under the authority of the United States, attempts to negotiate

such treaty or convention, directly or indirectly, or to treat

with any such nation or tribe of Indians for the title or pur-

chase of any lands by them held or claimed, is liable to a pen-

alty of $1,000. The agent of any State who may be present at

any treaty held with Indians under the authority of the United

States, in the presence and with the approbation of the com-

missioner of the United States appointed to hold the same,

may, however, propose to, and adjust with, the Indians the

compensation to be made for their claim to lands within such

State, which shall be extinguished by treaty.

TITLE 28, UNITED STATES CODE § 2415

§ 2415. Time for commencing actions brought by the

United States

(a) Subject to the provisions of section 2416 of this title, and

except as otherwise provided by Congress, every action for

money damages brought by the United States or an officer or

agency thereof which is founded upon any contract express or

implied in law or fact, shall be barred unless the complaint is

filed within six years after the right of action accrues or within

one year after final decisions have been rendered in applicable

7la

administrative proceedings required by contract or by law,

whichever is later: Provided, That in the event of later partial

payment or written acknowledgment of debt, the right of ac-

tion shall be deemed to accrue again at the time of each such

payment or acknowledgment: Provided further, That an ac-

tion for money damages brought by the United States for or on

behalf of a recognized tribe, band or group of American In-

dians shall not be barred unless the complaint is filed more

than six years and ninety days after the right of action accrued:

Provided further, That an action for money damages which

accrued on the date of enactment of this Act in accordance

with subsection (g) brought by the United States for on behalf

of a recognized tribe, band, or group of American Indians, or

on behalf of an individual Indian whose land is held in trust or

restricted status, shall not be barred unless the complaint is

filed sixty days after the date of publication of the list required

by section 4(c) of the Indian Claims Act of 1982: Provided,

That, for those claims that are on either of the two lists pub-

lished pursuant to the Indian Claims Act of 1982, any right of

action shall be barred unless the complaint is filed within

(1) one year after the Secretary of the Interior has published in

the Federal Register a notice rejecting such claim or (2) three

years after the date the Secretary of the Interior has submitted

legislation or legislative report to Congress to resolve such

claim or more than two years after a final decision has been

rendered in applicable administrative proceedings required by

contract or by law, whichever is later.

(b) Subject to the provisions of section 2416 of this title, and

except as otherwise provided by Congress, every action for

money damages brought by the United States or an officer or

agency thereof which is founded upon a tort shall be barred

unless the complaint is filed within three years after the right

of action first accrues: Provided, That an action to recover

damages resulting from a tresp. = on lands of the United States:

72a

an action to recover damages resulting from fire to such lands;

an action to recover for diversion of money paid under a grant

program; and an action for conversion of property of the

United States may be brought within six years after the right of

action accrues, except that such actions for or on behalf of a

recognized tribe, band or group of American Indians, includ-

ing actions relating to allotted trust or restricted Indian lands,

may be brought within six years and ninety days after the right

of action accrues, except that such actions for or on behalf of a

recognized tribe, band, or group of American Indians, includ-

ing actions relating to allotted trust or restricted Indian lands,

or on behalf of an individual Indian whose land is held in trust

or restricted status which accrued on the date of -ractment of

this Act in accordance with subsection (g) may be »rought on

or before sixty days after the date of the publication of the list

required by section 4(c) of the Indian Claims Act of 1982: Pro-

vided, That, for those claims that are on either of the two lists

published pursuant to the Indian Claims Act of 1982, any right

of action shall be barred unless the complaint is filed within

(1) one year after the Secretary of the Interior has published in

the Federal Register a notice rejecting such claim or (2) three

years after the Secretary of the Interior has submitted legisla-

tion or legislative report to Congress to resolve such claim.

(c) Nothing herein shall be deemed to limit the time for

bringing an action to establish the title to, or right of posses-

sion of, real or personal property.

(g) Any right of action subject to the provisions of this sec-

tion which accrued prior to the date of enactment of this Act

shall, for purposes of this section, be deemed to have accrued

on the date of enactment of this Act.

73a

TREATY OF CANANDAIGUA, NOVEMBER 11, 1794,

7 STAT. 44

A Treaty between the United States of America, and the

Tribes of Indians called the Six Nations.

The President of the United States having determined to

hold a conference with the Six Nations of Indians, for the pur-

pose of removing from their minds all causes of complaint, and

establishing a firm and permanent friendship with them; and

Timothy Pickering being appointed sole agent for that pur-

pose; and the agent having met and conferred with the

Sachems, Chiefs and Warriors of the Six Nations, in a general

council: Now, in order to accomplish the good design of this

conference, the parties have agreed on the following articles;

which, when ratified by the President, with the advice and

consent of the Senate of the United States, shall be binding on

them and the Six Nations.

Article I.

Peace and friendship are hereby firmly established, and

shall be perpetual, between the United States and the Six Na-

tions.

Article II.

The United States acknowledge the lands reserved to the

Oneida, Onondaga and Cayuga Nations, in their respective

treaties with the state of New York, and called their reserva-

tions, to be their property; and the United States will never

claim the same, nor disturb them or either of the Six Nations,

nor their Indian friends residing thereon and united with

them, in the free use and enjoyment thereof; but the said reser-

vations shall remain theirs, until they choose to sell the same to

the people of the United States, who have the right to purchase.

74a

Article IV.

The United States having thus described and acknowledged

what lands belong to the Oneidas, Onondagas, Cayugas and

Senekas, and engaged never to claim the same, nor to disturb

them, or any of the Six Nations, or their Indian friends

residing thereon and united with them, in the free use and en-

joyment thereof: Now, the Six Nations, and each of them,

hereby engage that they will never claim any other lands

within the boundaries of the United States; nor even disturb

the people of the United States in the free use and enjoyment

thereof.

Article VI.

In consideration of the peace and friendship hereby estab-

lished, and of the engagements entered into by the Six Nations:

and because the United States desire, with humanity and kind-

ness, to contribute to their comfortable support; and to render

the peace and friendship hereby established, strong and

perpetual; the United States now deliver to the Six Nations,

and the Indians of the other nations residing among and

united with them, a quantity of goods of the value of ten thou-

sand dollars. And for the same considerations, and with a

view to promote the future weifare of the Six Nations, and of

their Indian friends aforesaid, the United States will add the

sum of three thousand dollars to the one thousand five hun-

dred dollars, heretofore allowed them by an article ratified by

the President, on the twenty-third day of April, 1792; making

in the whole, four thousand five hundred dollars; which shall

be expended yearly forever, in purchasing clothing, domestic

animals, implements of husbandry, and other utensils suited to

their circumstances, and in compensating useful artificers,

75a

who shall reside with or near them, and be employed for their

benefit. The immediate application of the whole annual

allowance now stipulated to be made by the superintendent

appointed by the President for the affairs of the Six Nations,

and their Indian friends aforesaid.

Article VII.

Lest the firm peace and friendship now established should

be interrupted by the misconduct of individuals, the United

States and Six Nations agree, that for injuries done by indivi-

duals on either side, no private revenge or retaliation shall take

place, but, instead thereof, complaint shall be made by the

party injured, to the other: By the Six Nations or any of them,

to the President of the United States, or the Superintendent by

him appointed: and by the Superintendent, or other person

appointed by the President, to the principal chiefs of the Six

Nations, or of the nation to which the offender belongs: and

such prudent measures shall then be pursued as shall be neces-

sary to preserve our peace and friendship unbroken; until the

legislature (or great council) of the United States shall make

other equitable provision for the purpose.

NOTE. It is clearly understood by the parties to this treaty,

that the annuity stipulated in the sixth article, is to be applied

to the benefit of such of the Six Nations and of their Indian

friends united with them as aforesaid, as do or shall reside

within the boundaries of the United States: For the United

States do not interfere with nations, tribes or families, of In-

dians elsewhere resident.

In witness whereof, the said Timothy Pickering, and the

sachems and war chiefs of the said Six Nations, have hereto set

their hands and seals.

Done at Konondaigua, in the State of New York, the elev-

enth day of November, in the year one thousand seven hun-

dred and ninety-four. _[ There foilows a series of signatures. }

76a

TREATY OF SEPTEMBER 15, 1795

This Indenture made the fifteenth day of September One

thousand seven hundred and ninety five Between the

Sachems, Warriors and Women of the Oneida Nation of In-

dians by Jacob Reed, Peter Bread; Thomas Whitebeans &

others whose names are hereunto subscribed as Deputies and

attornies authorized and empowered for that purpose by a cer-

tain Instrument in writing under the hands and seals of said

Sachems, Warriors and Women of the said Nation bearing

date the first day of September instant of the first part and

Philip Schuyler, John Cantine and David Brooks Agents in

behalf of the people of the State of New York duly authorized

and empowered by an act of the Legislature of the said State

passed the 9th day of April, 1795 of the second part:

WHEREAS at a Treaty held at Fort Schuyler in the County

of Herkimer on the twenty second day of September One thou-

sand seven hundred and eighty eight between the said parties

of the first part and certain commissioners duly authorized

and empowered in behalf of the State aforesaid, certain Tracts

of Land in the said Treaty particularly specified and described

were appropriated and set apart for the use, benefit and be-

hoof of the aforesaid Tribe or Nation of Indians, and

WHEREAS the said Tribe or Nation of Indians have re-

quested of the Legislature of the said State to render a part of

the Lands so appropriated and set apart productive of an an-

nual income to them. Now Therefore this Indenture Wit-

nesseth That the said parties of the first part for and in con-

sideration of the sums of money and other stipulations herein-

after mentioned to be paid done and performed by and on the

part of the said people of the State aforesaid Have granted,

bargained, sold, aliened, remised, transferred, set over, re-

leased and confirmed and by these presents Do grant bargain,

sell, alien, remise, transfer, set over, release & confirm unto

77a

the said people of the State aforesaid so much of the Lands and

set apart in manner aforesaid as is contained within the limits

and bounds following to wit: Beginning at a place on the East

Bank of the Oneida Lake which place is a bisection of the dis-

tance between the mouth of Wood Creek and the mouth of the

Oneida Creek, and runs from the said place of bisection

Northerly along the Waters of the Oneida Lake to Wood

Creek, thence up along Wood Creek until opposite Canada

Creek being the North East corner of the Lands appropriated

to the use of the said Tribe or Nation of Indians in the Treaty

aforesaid Thence along the Eastern Boundary lines of the

Lands so appropriated to the South East corner thereof,

thence West along the Southern Boundary thereof to the South

West corner thereof, thence North along the Western Bound-

ary thereof to the Deep Spring, thence Easterly by the bound-

ary expressed in the said Treaty to the Chittilingo Branch of

Canassaderaga Creek thence Southerly along the said Branch

so far as to be One mile distant from the Northern Boundary of

the Tract of Land leased by the said Tribe or Nation to Peter

Smith, thence East by a Line parallel to the said Northern

Boundary so far as to a point four miles distant from the East-

ern boundary of the Tract so appropriated as aforesaid thence

Northerly by strait lines parallel to the Eastern boundary lines

of the Lands so appropriated and Keeping four miles distant

therefrom until it reaches a place four miles distant from

Wood Creek, thence with a strait line to the place of begin-

ning. Excepting thereout so much of the Lands granted to the

Stockbridge Indians as is included within the bounds afore-

said; and also Excepting thereout one mile square to include a

small settlement of the said Tribe or Nation on the East side of

the Lands granted to the Stockbridge Indians; and also all the

Lands lying on the North side of the Oneida Lake appropri-

ated and set apart to the use benefit and behoof of the said Na-

tion of Indians at the Treaty aforesaid, and also the Land at

78a

the fishing place in the Onondaga River mentioned in the

Treaty aforesaid. To have and to hold all and singular the

Lands aforesaid to the people of the State of New York afore-

said for Ever. On condition nevertheless That the said people

aforesaid shall immediately on the Execution and Delivery of

this Indenture by the said parties of the first part pay to the

said Indians the sum of Two thousand nine hundred and Fifty

two dollars and annually forever thereafter on the first day of

June in each year the like sum of Two thousand nine hundred

& fifty two. Dollars, at Oneida in the county of Herkimer to-

gether with the sum of Six hundred Dollars stipulated by the

Treaty aforesaid to be paid to the said Indians; and

WHEREAS Doubts have arisen whether the Tract of Land

lying between the Streams known by the name of the Chellin-

go and the Canaseraga Creeks was intended by the Treaty

aforesaid to be included within the limits of the Lands so ap-

propriated and set apart for the aforesaid Indians or not; The

parties aforesaid Do by these presents mutually agree That if

the Legislature of the State aforesaid shall Quit-claim to the

said Indian Tribe or Nation the Lands between the said

Streams as far South as an Easterly line from the Deep Spring

to the Easternmost of the said Streams, to be drawn by the

shortest distance between the said Spring and the said Eastern-

most Stream, and as far North as the junction of the said two

Streams, That then and in that case the said tribe or Nation of

Indians shall and they Do by these presents grant, bargain,

sell, alien and release to the people of the State of New York

aforesaid All that certain Tract of Land within the limits and

bounds following Viz: Beginning at the East end of the Oak

ridge in the great Road leading from the Oneida Village to the

Deep Spring, and runs thence South to the North Bounds of

this Tract herein before described as released to the people of

this State, thence East along the said North bounds two miles,

thence North to the East side of the said Road, thence North

79a

one half Mile thence with a strait line parallel to the General

course of that part of the said Road between the East and West

Bounds of this Tract until the place of beginning bears South

thence South to the place of beginning. Provided always and

it is the true intent of these presents that the said Tract shall be

surveyed at the expence of the people of the said State, and the

quantity of acres contained therein determined, and that for

every hundred acres contained therein there shall be annually

paid by the people of the State of New York the sum of three

Dollars the first payment to be made on the said first day of

June next, and a like Sum annually forever thereafter on the

first day of June in each Year at Oneida aforesaid; but in case

the Legislature of the said State shall not Quit claim the Lands

between the said Streams as last aforesaid that then and in that

case the Lands described in this article as ceded to the said

people shall be and remain to the said Tribe or Nation of In-

dians; as if this article had never been made and concluded

upon anything herein contained to the contrary notwithstand-

ing; and

WHEREAS there was appropriated and set apart to the use,

benefit and behoof of the said Tribe or Nation of Indians by

the Treaty aforesaid one half mile of Land on each side of Fish

Creek; and

WHEREAS the said tribe or Nation of Indians incline to sell

so much of the said Lands as lay to the Northward of a certain

Creek falling into the said fish Creek, and coming from

towards Fort Schuyler; and

WHEREAS it is not possible without a previous Survey to

determine the quantity of Lands which they so incline to sell

nor the junction of the Creek beyond which the said Tribe or

Nation of Indians incline to sell The parties aforesaid Do there-

fore further mutually agree by these presents, That whenever

the quantity of Land comprized within the last mentioned

bounds shall be ascertained and the Legislature of the said

80a

State shall determine to purchase the same and pass an act for

that purpose that then and in that case the said Tribe or Na-

tion of Indians shall be and hereby are bound to convey and

release the same to the people of the State of New York afore-

said; provided that the said people shall annually forever

thereafter pay unto the said Tribe or Nation of Indians at and

after the rate of three Dollars per annum for every hundred

acres contained n the said last mentioned Tract of Land pro-

vided always and it is the true intent and meaning of these

presents that the said parties of the first part shall when there-

unto required assign, transfer, and set over to the aforesaid

people the Lease by them heretofore given to Peter Smith or

part of the Lands herein first above mentioned.

In Witness Whereof the parties to these presents have

hereunto interchangeably set their hands and seals the day and

year first herein before first above written

[There follows a series of signatures. |

ee ee ee

8la

TREATY OF JUNE 1, 1798

At a Treaty held with the Oneida Nation or Tribe of Indians

at their Village in the State of New York on the first Day

of June in the Year One Thousand Seven Hundred and

Ninety Eight.

PRESENT, Joseph Hopkinson Commissioner appointed

under the authority of the United States to hold the Treaty

Egbert Benson Ezra L’Hommedieu and John Tayler Agents

er I I citiiertectincccticcticinediciecmininncnibiinsisce

The said Indians having in the month of March last Pro-

posed to the Goveronor [sic] of the said State to cede the Lands

herein after described, for the compensation herein after men-

tioned — and the said Governor having acceded to the said

Proposal, and advanced to the said Indians, at their desire in

part Payment of the said Compensation Three Hundred

Dollars to answer their then immediate occasions the said ces-

sion is thereupon in the presence and with the approbation of

the said Commissioner carried into effect at this Treaty, which

hath on the request of the said Governor been appointed to be

held for the purpose as follows, that is to say, the said Indians

do cede release and quit claim to the People of the State of

New York forever All the Lands within their Reservation to

the Westward and Southwestward of a Line from the North-

eastern corner of Lot No. 54 in the last purchase from them

running northerly to a button wood tree marked on the east

side Oneida R 1798 On the West side FP. S. 1798. and on the

South side with three Notches and a blaze standing on the

bank of the Oneida Lake in the Southern part of a Bay called

Newageghkoo Also a Mile on each side of the Main Genesee

Road for the distance of one mile and an half westward to

commence at the Eastern boundary of their said Reservation

— And also the same Breadth for the distance of three miles

82a

on the south side and of one mile on the north side of the said

Road Eastward to commence at the Eastern Boundary of the

said Lot No. 54, Provided and excepted nevertheless that the

following Indian Families Viz: Sarah Docksteder, Jacob

Docksteder, Cornelius Docksteder Lewis Denny John Denny,

Jan Joost and Nicholas shall be suffered to possess of the Tract

First above mentioned. The Grounds cultivated by them

respectively and their improvements not exceeding Fifty Acres

to each Family so long as they shall reside there — And in con-

sideration of this Proviso and Exception the said Indians do

further Cede that a tract cf Twelve Hundred and Eighty

Acres, as Follows— that is to say Beginning in the South east

Corner of Lot No. 59. in the said last Purchase and running

thence East one Mile, thence North two Miles thence West

One Mile and thence South Two Miles shall be considered as

set Apart by the said Nation or Tribe for the use of the said

Families whenever they shall remove from where they now re-

side, The Said Agents do for the People of the said State pay to

the said Indians in addition to the said sum of Three Hundred

dollars already advanced to them as above mentioned the fur-

ther sum of Two Hundred Dollars, And do grant to the said

Indians that the People of the said State shall pay to the said

Indians at their said Village on the First day of June next and

on the first day of June Yearly thereafter the Annual Sum of

Seven Hundred Dollars.

In Testimony whereof the said Commissioner, the said

Agents and the said Indians have hereunto and to other

Acts of the same Tenor and date the One to remain with

the United States another to remain with the State of New

York and another to remain with the said Indians set their

hands and Seals at the Village Aforesaid the Day and Year

first above written.

[There follows a series of signatures. |

83a

TREATY OF JUNE 4, 1802

At a Treaty held with the Oneida Nation or Tribe of Indians

at their Village in the State of New York, on the fourth day of

June in the year of our Lord One Thousand eight Hundred

and Two

Present John Tayler Agent appointed under the authority of

the United States to hold the Treaty, and Ezra L’Hommedieu

and Simeon DeWitt Agents for the State of New York.

The said Indians having by their Sachems Chiefs and War-

riors in the month of March last proposed to the Governor of

the said State to cede the Lands hereinafter described for the

compensation hereinafter mentioned And the said Governor

together with the Surveyor General of the said State and Ezra

L’Hommedieu Esquire an Agent appointed by the said Gov-

ernor pursuant to concurrent resolutions of the Senate and

Assembly of the State bearing date the 23d and 24 days of Feb-

ruary last, having acceded to the proposal of the said Sachems

Chiefs and Warriors, and on the fifth dey of the said month of

March executed a provisional agreement with them for the

cession and purchase of the same, and advanced to them at

their desire in part payment of the said Compensation three

Hundred dollars, to answer the immediate Occasions of the

said Indians — The said Cession is thereupon in the presence

and with the approbation of the said Commissioner carried in-

to effect at this Treaty which hath on the request of the said

Governor been appointed to be held for the purpose, as fol-

lows, that is to say, The said Indians do Cede release and quit

claim to the people of the State of New York forever the several

Tracts or parcels of Land hereinafter described, being parts of

the lands heretofore reserved to the said Oneida Nation of In-

dians To wit, All that certain Tract of Land beginning at the

Southwest corner of the Land iying along the Genesee Road,

and which was ceded in the year One thousand Seven hundred

84a

and Ninety eight by the said Oneida Indians to the people of

the State of New York, and running thence along the last men-

tioned Tract, easterly to the southeast corner thereof thence

southerly in the direction of the continuation of the east

bounds of said last mentioned tract, to other lands heretofore

ceded by the said Oneida Nation of Indians to the people of the

State of New York then along the same westerly to a part of

said last mentioned Land called the Two-mile strip, and then

along the same northerly to the place of Beginning — Also,

another Tract of Land bounded on the south by the Genesee

Road, on the North by a Line drawn parallel to said Road —

and at the Distance on an average of half a mile to the north-

ward thereof, and extending from the West bounds of a tract

of One hundred Acres now ceded and including Myndert Van

Eps Wemples house westerly to the Lands heretofore ceded as

aforesaid. Provided that the north bounds of the last de-

scribed tract shall be run with such right Angular offsets as to

leave the Indian Houses near the northwesterly corner of said

Tract, Twenty chains distant from the same — Also, One

Hundred Acres to be laid out in a square and to extend each

way from the house of said Myndert Van Eps Wemple along

the said Genesee Road fifteen chains and northerly from said

Road fourteen chains and Southerly from said road twenty

chains Also all that part of the land heretofore reserved by the

said Oneida nation of Indians along the Fish Creek which lies

to the northward of the Bridge over said Creek commonly

called and known by the name of Bloomfields Bridge. The

said Agents do for the people of the State of New York in con-

formity to the said provisional agreement pay to the said In-

dians in addition to the said sum of Three Hundred Dollars

already advanced to them as above mentioned the further sum

of Six Hundred Dollars, and do grant to the said Indians that

the People of the said State shall annually forever hereafter on

such day and place as are or shall be appointed for the Pay-

85a

ment of other Annuities to the said Indians pay to the said In-

dians the sum of Three hundred Dollars. And the said Agents

do further grant to the said Indians that the People of the State

of New York, out of the lands above described and hereby ced-

ed to them shall grant to Sarah Docksteder One Hundred

Acres to be laid out in a square adjoining the Two-Mile Tract,

on the Road commonly called Klocks, Road, as the said One

Hundred Acres shall be laid out by order of the Surveyor Gen-

eral with the approbation of the said Sarah, to be held to her

during her natural life and thereafter to her heirs in fee. And

ALSO to Michael Kern One Hundred and fifty Acres, so as to

include the House in which he now resides with the other im-

provements made by him around the Same.

In Testimony whereof the said commissioner the said Agents

and the said Indians have hereunto and to other Acts of the

same tenor and date the one to remain with the United States

another to remain with the State of New York and another to

remain with the said Indians, set their hands and seals at the

Village aforesaid the day and year first above written.

[ There follows a series of signatures. }

L061/X