Amicus Curiae Brief — Department of Taxation and Finance of NY v. Milhelm Attea & Bros.

ONT ss

we fh © No. 93-377

IN THE

Supreme Court of the United States

October Term, 1993

DEPARTMENT OF TAXATION AND FINANCE OF THE

STATE OF NEW YORK and JAMES W. WETZLER,

COMMISSIONER OF TAXATION AND FINANCE OF THE

STATE OF NEW YORK and the TAX APPEALS TRIBUNAL

OF THE STATE OF NEW YORK, State Campus, Albany, New

York,

Petitioners,

against

MILHELM ATTEA & BROS., INC., a/kia MILHELM ATTEA &

BROTHERS, INC., aka MILHEM ATTEA & BROTHERS,

INC., 1509 Clinton Street, Buffalo, New York 14206,

Respondent.

(Additional Action Listed Inside Front Cover)

PETITION FoR A WRIT OF CERTIORARI TO THE COURT OF

APPEALS OF THE STATE OF NEW YORK.

MOTION FOR LEAVE TO FILE BRIEF OF

AMICI CURIAE AND BRIEF AMICI CURIAE

On behalf of: Seneca Nation of Indians; Mohawk Tribal

Council; Iroquois Business Association; Honor

Indian Treaties; Seneca Coalition Against Taxes

HOBBS, STRAUS, DEAN ANTHONY J. COLUCCI, JR.

& WILDER Counsel of Record

HANS WALKER, Jk., Of Counsel BLOCK & COLUCCI, P.C.

1819 H Street, N.W. Suite 800 JOSEPH F. CRANGLE, Of Counsel

Washington, D.C. 20006 1250 Statler Towers

Telephone: (202) 783-8100 Buffalo, New York 14202

Telephone: (716) 854-4080

Attorneys for Amicus Parties

Dated: October 6, 1993

Batavia Times Publishing Co

Batavia. New York (716) 344.2000

0

JAMES W. WETZLER, as Commissioner of Taxation and Finance

of the State of New York; THE DEPARTMENT OF TAXATION

AND FINANCE OF THE STATE OF NEW YORK and the TAX

APPEALS TRIBUNAL OF THE STATE OF NEW YORK, State

Campus, Albany, New York 12227,

Petitioners,

against

ELIAS H. ATTEA, JR., 6175 Stickler Street,

Clarence, New York 14031,

Respondent.

IN THE

Supreme Court of the United States

October Term, 1993

No. 93-377

DEPARTMENT OF TAXATION AND FINANCE OF THE

STATE OF NEW YORK and JAMES W. WETZLER,

COMMISSIONER OF TAXATION AND FINANCE OF THE

STATE OF NEW YORK and the TAX APPEALS TRIBUNAL

OF THE STATE OF NEW YORK, State Campus, Albany, New

York,

; Petitioners,

against

MILHELM ATTEA & BROS., INC., a/k/a MILHELM ATTEA &

BROTHERS, INC., a/k/a MILHEM ATTEA & BROTHERS,

INC., 1509 Clinton Street, Buffalo, New York 14206,

Respondent.

0.

JAMES W. WETZLER, as Commissioner of Taxation and Finance

of the State of New York; THE DEPARTMENT OF TAXATION

AND FINANCE OF THE STATE OF NEW YORK and the TAX

APPEALS TRIBUNAL OF THE STATE OF NEW YORK, State

Campus, Albany, New York 12227,

Petitioners,

against

ELIAS H. ATTEA, JR., 6175 Stickler Street,

Clarence, New York 14031,

Respondent.

PETITION For A WRIT OF CERTIORARI TO THE COURT OF

APPEALS OF THE STATE OF NEW YORK.

MOTION FOR LEAVE TO FILE BRIEF OF

AMICI CURIAE On behalf of: Seneca Nation

of Indians; Mohawk Tribal Council; Iroquois

Business Association; Honor Indian Treaties;

Seneca Coalition Against Taxes

ee

Pursuant to Rule 37.4 of the Supreme Court Rules, the

Seneca Nation of Indians by this Motion seeks

permission to file one amicus curiae brief in opposition to

the petition for certiorari in this case. The respondent is

a federally licensed Indian Trader who trades with

Seneca Nation of Indian retailers. The moving amici

parties are the Seneca Nation of Indians, the Mohawk

Tribal Council, the Honor Indian Treaties Committee,

Iroquois Business Association, and the Seneca Coalition

Against Taxes.

These parties appeared in the Court below as amici

curiae and attempted to obtain the consent of the parties

to appear before this Court as provided for in Rule 37.2.

The attorneys for the respondents, Milhelm Attea and

Brothers and Elias H. Attea, Jr., Inc., both have

consented. However, the attorney on behalf of the

petitioners, Department of Taxation and Finance of the

State of New York and James W. Wetzler,

Commissioner, has refused to consent.

Specifically, Mr. Millenbach, who appeared on behalf of

the petitioner in the New York Court of Appeals, advised

that the State would consent to the filing of an amicus

brief, but only if that brief did not discuss the Seneca

and Six Nations treaties or New York statutes that

prohibit taxation within the reservations of New York.

This Motion is being made so that the Court can have

all the relevant law before it, which is the function of an

amicus brief, as specified in Rule 37.1. When this case

was argued before the New York State Court of Appeals,

that court granted an order permitting the moving

parties herein to file one amicus brief on behalf of the

amici parties.

After receiving the amici brief in this matter and at

the request of the amici parties, the New York Court of

Appeals also granted the unusual relief of permitting oral

argument by the amici parties.

2

It is respectfully submitted that the petitioner's

attempt to determine what is relevant or to limit what

arguments are made by the Seneca Nation of Indians

should be rejected, as it would deprive this Court of the

opportunity to review the same points of law and

material that were presented to the court below.

Pursuant to Rule 37.4, the moving parties herein

submit that they have a more overriding interest in the

outcome of this case than either of the parties. The

Seneca Nation of Indians, a federally recognized Indian

tribe, is one of the Six Nations, [also known as the

Iroquois Confederacy] and as such possesses Sovereign

rights under the earliest treaties ever negotiated by the

United States government, guaranteeing peaceful

enjoyment of their land, free of disturbances.

Additionally and most significantly, the Senecas were

guaranteed freedom from State and local taxes on their

reservations in The 1842 Compromise Treaty with the

Senecas at the Buffalo Creek Reservation.

Because its treaty rights were negotiated at such an

early date in our Nation's history, the Seneca Nation

enjoys a unique historical posture which differentiates

them from other tribes. Unlike the western tribes, which

were defeated in battle, relinquished their claim of

ownership, and were often relocated, the Seneca Nation

of Indians was never defeated, nor ever relocated. The

New York State Senate in 1857 describe the Seneca’'s

title to their lands as “absolute, original and exclusive’.

The unique posture of the Seneca Nation of Indians

unlike that of the tribes discussed in the cases [Moe,

Colville, Potawatomi] relied on by the petitioner, has

resulted in a rich body of New York State law reflecting

and recognizing the unique, sovereign status of the

Seneca Nation. These state laws include a New York

statute prohibiting the petitioner from applying any of

its tax laws within the reservation. The actions of the

3

petitioner threaten to destroy the security from state

interference that the Senecas have enjoyed since New

York adopted a law in 1857, prohibiting tax collection on

the Seneca reservations.

Additionally, the State of New York expressly asked

Congress repeatedly for a grant of general authority to

apply its civil laws on New York reservations. These

requests have been repeatedly denied, and although

criminal jurisdiction was granted in 1948, Congress

expressly proclaimed in 1950 that the State of New York

lacked power to apply its tax laws within the

reservations. Again, the petitioner's actions threaten

these well settled rights of the Senecas, which they have

achieved and maintained for over 200 years.

More importantly, in the only New York Indian case

ever before this Court involving the question of taxation,

this Court, over 100 years ago, held that the treaties

prohibit New York State from attempting to apply any

of its tax laws on the reservations. This court wrote that

it examined the treaty language and could come to only

one conclusion—that the Nation does not hold title to its

land through the United States but holds it in its

original claim of ownership, and that the State of New

York, therefore, may not impose any of its laws,

including its tax laws within the reservation.

Only Congress, which was granted exclusive plenary

power to deal with Indian affairs, has the power to alter

this result and Congress has expressly spoken to the

subject and affirmatively denied New York taxing power

within the confines of the Nation's property.

4

It is respectfully submitted that the arguments raised

herein are significant and dispositive of the issues in this

case. The New York Court of Appeals felt these

arguments were significant enough to warrant granting

amicus curiae relief, and indeed felt these arguments

were so significant as to grant the unusual relief of

permitting oral argument to the amici parties.

The Court's attention is further directed to a

subsequent case commenced by the petitioner

Department of Taxation which is currently pending in

the New York State courts. Snyder v. Wetzler, Index No.

946-92. The Snyder case was, in the petitioner's own

words, a ‘‘test case’’ and directly at issue in that case is

the power of the State of New York to impose its taxing

regulations within the Seneca Nation lands. The moving

parties herein have also appeared in that case as amici

curiae.

Finally, in support of this motion, the Court's

attention is drawn to Rule 37.5, which provides that

consent to the filing of an amicus curiae brief is not

necessary when the brief is submitted on behalf of an

agency of the United States, a state, territory,

commonwealth, or political subdivision. Although Rule

37.5 does not expressly refer to an Indian Nation, there

is substantial precedent in federal law for not only

recognizing the sovereign status of the Indian Nations

but also regarding them for many purposes as equivalent

to a state.

In this matter the Seneca Nation of Indians has an

overwhelming interest in the outcome of this litigation,

as the integrity of the Nation's treaties, federal statutes

applicable only to tribes in New York as well as the

economic survival of the Nation itself are all at stake.

a OE +P ee nace

HOBBS, STRAUS, DEAN

& WILDER

HANS WALKER, JR., Of Counsel 1250 Statler Towers

1819 H Street, N.W. Suite 800 Buffalo, New York 14202

Washington, D.C. 20006

Telephone: (202) 783-8100

5

Because the Seneca Nation has such an overriding

interest in the outcome of this case and is uniquely able

to bring relevant matters to the court's attention,

permission to file the attached amici curiae brief is

respectfully requested of the Court.

Res»sctfully submitted,

ANTHONY J. COLUCCI, JR.

Counsel of Record

BLOCK & COLUCCI, P.C.

JOSEPH F. CRANGLE, Of Counsel

Telephone: (716) 854-4080

Attorneys for Amici Curiae Seneca Nation

of Indians; Mohawk Tribal Council; Iroquois

Business Association; Honor Indian Treaties;

Seneca Coalition Against Treaties

IN THE

Supreme Court of the United States

October Term, 1993

No. 93-377

DEPARTMENT OF TAXATION AND FINANCE OF THE

STATE OF NEW YORK and JAMES W. WETZLER,

COMMISSIONER OF TAXATION AND FINANCE OF THE

STATE OF NEW YORK and the TAX APPEALS TRIBUNAL

OF THE STATE OF NEW YORK, State Campus, Albany, New

York,

: Petitioners,

against

MILHELM ATTEA & BROS., INC., a/k/a MILHELM ATTEA &

BROTHERS, INC., a/k/a MILHEM ATTEA & BROTHERS,

INC., 1509 Clinton Street, Buffalo, New York 14206,

Respondent.

——

JAMES W. WETZLER, as Commissioner of Taxation and Finance

of the State of New York; THE DEPARTMENT OF TAXATION

AND FINANCE OF THE STATE OF NEW YORK and the TAX

APPEALS TRIBUNAL OF THE STATE OF NEW YORK, State

Campus, Albany, New York 12227,

Petitioners,

against

ELIAS H. ATTEA, JR., 6175 Stickler Street,

Clarence, New York 14031,

Respondent.

PETITION FoR A WRIT OF CERTIORARI TO THE COURT OF

APPEALS OF THE STATE OF NEW YORK.

BRIEF OF AMICI CURIAE

On behalf of: Seneca Nation of Indians; Mohawk Tribal

Council; Iroquois Business Association; Honor Indian

Treaties; Seneca Coalition Against Taxes

i.

QUESTION PRESENTED

Is the State of New York Department of Taxation

preempted by Treaty, Federal, or State Laws from

applying State Tax regulations taxing the conduct of

commerce on a Seneca Reservation?

TABLE OF CONTENTS

os Page

ts yy 6B yy * | Se i

ERED GE GRU RENEE cc ccc ccc cesscvccceccces iii

py) PF Tt MN iys 6 | yy | - Sere Vv

STATEMENT OF INTEREST .................. l

SUMMARY OF ARGUMENT................... 2

FEET FOOT CTE TET ETE E TCT TEE T TOT 4

The Writ Of Certiorari Should Be Denied

Because The Court Of Appeals’ Decision Is

Consistent With The Federal Treaties And

Statutes Governing New York............... 4

A. The tax regulations are invalid because

they violate Seneca Nation treaties, which are

the Supreme Law of the Land ............. 7

B. The New York Legislature recognized

the unique effect of the Seneca treaties by

declaring the reservations wholly exempt

from taxation in Indian Law, §6 ........... 13

C. The uniqueness of the Seneca treaties

was conclusively established by the Supreme

Court in 1866 in the New York Indians case,

which held that New York may not apply its

laws within Seneca borders for any purpose.. 14

D. Congress reaffirmed the unique effect of

the Seneca treaties when, in enacting 25

U.S.C. $233, it refused to grant New York the

power to extend its civil laws to the

reservations and further expressly prohibited

state taxation on such reservations......... 17

Sn os oc en cccatesccedesdasececnerss 20

iv. Vv.

AMICI CURIAE APPENDIX: TABLE OF AUTHORITIES

Treaty With The Six Nations, 1784............. AAI an

Treaty With The Six Nations, 1789............. AA4 Cases

Treaty With The Six Nations, 1794............. AA8 Aleskea Pacific Fisheries v. United States.

Treaty Wie The GemeeGe ...ccccccessveveeeen AA14 i cuccececces 6

Carpenter v. Shaw, 280 U.S. 363 (1930) ........... 6

Central Machinery Co. v. Arizona Tax Commission,

Ee Cee Ck cece secencece 17

Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970)... 6

Choctaw Nation v. United States, 318 U.S. 423

ee Ce ccc cee ccceccccese 6

Commissioner v. Duberstein, 363 U.S. 278 (1960)... 4

County Yakima v. Yakima Nation, _. US.

MME, «cc cccccccccscssecs 17

Fellows v. Denniston, 23 N.Y. 420 (1861).......... 5

Jones v. Meehan, 175 U.S. 1 (1895)............... 6

Knights of Pythias v. Meyer, 265 U.S. 30 (1924).... 4

Marbury v. Madison, 5 U.S. 137 (1803)............ 5

McClanahan v. Arizona State Tax Commission, 411

ccc eescececes 3,5,6,11,20

Moe v. Confederated Salish and Kootenai Tribes,

es ctw cc ceces 4,9,10,11,12

Montana v. Blackfeet, 171 U.S. 759 (1985)......... 17

New Mexico v. Cotton Petroleum, 490 U.S. 163

ee ee ewe ccc ceseeseeecececs ll

Oklahoma Tax Commission v. Potawatomi Tribe of

Oklahoma, CIV-87-0338-W revd. 888 F. 2d 1303,

affd. in part, 498 U.S. 505 (1991)............... 4,12

Oklahoma Tax Comission v. Sac and Fox Nation,

No. 92-259, S. Ct. May 17, 1993................ 3,6

Oklahoma Tax Commission v. United States, 319

SE 16

vi.

Ramah Navajo School Board, Inc. v. Bureau of

Revenue, 458 U.S. 832 (1982).................. 6

Starr v. Long Jim, 227 U.S. 613 (1913)............ 6

The New York Indians, 72 U.S. 761 (1866) .. . 3,4,5,14,16

Tulee v. Washington, 315 U.S. 681 (1942).......... 6

United States v. Forness, et al, 125 F. 2d 928

SE bb bu deecddueecbetéaUanedsduaeeesandeds 19

United States v. Shoshone Tribe, 304 U.S. 111

66460666 446664086 6600550 60NReoS ee heer 6

Warren Trading Post Co. v. Arizona Tax Comm..,

Sy Ss PD Kb coeds keeacesschudetincees 17

Washington v. Confederated Tribes of the Colville

Indian Reservation, 447 U.S. 134 (1980) .... 4,10,11,12

White Mountain Apache Tribe v. Bracker, 448 U.S.

SG Akane daenseesdesbaesbeseeeckateece 6

Winters v. United States, 207 U.S. 564 (1908)...... 6

Wisconsin v. J.C. Penney Co., 311 U.S. 435 (1940)... 4

Worcester v. Georgia, 31 U.S. 515 (1832) .......... 6

United States Constitution

CE, Ge OR, Be cc ckcedc ceecéneeessessesss 17

Ne SI oe abs 5

United States Treaties

Seneca and Six Nation Treaties

Treaty with Six Nations, Oct. 22, 1784, U.S.—Six

Nations, 7 Stat. 15, (Fort Stamwix)............. 2,7

Treaty with Six Nations, Jan. 9, 1789, U.S.—Six

Nations, 7 Stat. 33, (Fort Harmar)....... 1,2,7,9,10,11

Treaty of Peace with Six Nations, Nov. 11, 1794,

U.S.—Six Nations, 7 Stat. 44, (Canandaigua)... . 2,8,10

Treaty with the Senecas, May 20, 1842,

U.S.—N.Y.—Mass.—Seneca Nation, 7 Stat. 586,

ee 1,2,8,9,10,11,13

Western Treaties

Treaty with the Pottowautomie Nation, June 5 and

7, 1846 U.S.—Pottowautomies, 9 Stat. 853 ...... 12

Treaty with the Flatheads, July 16, 1855,

U.S.—Flatheads Nation, 12 Stat. 975 ......... 9,10,11

Treaty at Point Elliot, Jan. 22, 1855

U.S.—Dwdmish Tribe—Suqudmish Tribe, 12 Stat.

GP cccdaccecdaddecensseeddekeestseccedcecs 10,11

Treaty with the Makah Tribe, Jan. 31, 1855

U.S.—Makah Tribe, 12 Stat. 939............... 10,11

Treaty with the Yakamas Nation, June 9, 1855

U.S.—Yakama Nation, 12 Stat. 951 ............ ll

Treaty with the Pottawatomies, Nov. 15, 1861

U.S.—Pottawatomie Tribe, 12 Stat. 1191........ 12

Treaty with the Pottawotomie Indians, Feb. 27,

1867 U.S.—Pottawatomie Tribe, 15 Stat. 531 .... 12

viii.

United States Statutes

ee DY ds oes rdccceedéceendes 2,17

ee 2,12,18,19,20

ee ueceveesoer 2

. Fe 8 8 8 rrr ee 12

, 3% FF & | Brrr rrr 12

United States Documents

H.R. 18735, 63rd Cong. 3d Sess. 1915............. 19

H.R. 9720, 71st Cong. 2d Sess. 1930.............. 19

New York State Statutes

New York Indian Law, §6 (McKinney 1950)....... 2,9,13

ee le I MD oc acecibcecewcess 2,14

Se sie Ss Wa OR Be Oc cee cceccccccvcss 14

1907 N.Y. Laws Ch. 5, art. 2, §6 ................. 14

Se ee I A SO odo ccccccsccvceeees 14

New York State Legislature Documents

New York Senate Doc. No. 28 (1857)......... 2,12,13,14

Whipple Report, New York State Assembly Doc.

Bs Oe Sc cede sb cednueesntebeoseossccccases 18

New York State Senate Bill S7988B (1992)......... 3

ix.

Miscellaneous

Cohen, Felix, Handbook of Federal Indian Law,

Ses GE Bee > PU, DUE oc cc ccccccccsose:s

Gunther, Gerald, Governmental Power and New

York Indian Lands—A Reassessment of a

Persistent Problem of Federal-State Relations,

Buff. L. Rev., 1, 13 (Fall 1958).................

Hauptman, Lawrence, Formulating American Indian

Policy in New York State, 1970-1986 (State

University of New York Press, Albany, 1988)....

Stern, Gressman, and Shapiro, Supreme Court

ec ci cosecagapenveceens

Tribe, Lawrence, American Constitutional Law (2d.

i rE ery ee rrr

State of Oklahoma, County of Pottowautomie,

Book 281, Quitclaim Deeds, p. 28 ..............

2,7

19

18

4

5

STATEMENT OF INTEREST

The Seneca Nation of Indians is a federally recognized

sovereign Indian Nation. It is one of the Six Nations

(Seneca, Mohawk, Onondaga, Oneida, Cayuga,

Tuscarora), also known as the Iroquois Confederacy. The

Senecas enjoy a unique position in early American

Indian history. Unlike many Western Tribes who were

defeated in battle and surrendered their claim of

ownership to the United States and who were often

forced to relocate, the Senecas were never conquered or

forced to surrender. The Seneca Nation never relocated

from their aboriginal lands. Treaties acknowledge the

Sovereignty of the Seneca Nation and their right to the

free use and enjoyment of their land, not to be disturbed

by the United States or New York State. For example,

the 1789 Treaty at Fort Harmar provides that the U.S.

“relinquishes”’ all claim to the Seneca’s land ‘‘and each

and every part thereof’. The Senecas 1842 Compromise

Treaty contains an express covenant that the taxing

power of New York will never be imposed on their

reservations ‘‘for any purpose”’.

If the New York Tax Commissioner's position

prevailed, the Seneca Nation Members and the other

amici parties would suffer irreparable harm. Heretofore

their treaties, federal and state statutes have protected

them from such injury. The Seneca Nation and the

Mohawk tribe possess Sovereign rights which New York

is attempting to obliterate without any congressional

authority.

The tax regulations in the instant case represent an

attempt by the State of New York to circumvent the

express promises made by the United States and the

State of New York in these treaties to the Senecas. This

Amici Brief is submitted to call to the Court's

attention the Federal and State statutes and decisional

law, including Supreme Court cases, that developed as a

result of the sacred promises made by the United States

and the State of New York to the Senecas.

2

SUMMARY OF ARGUMENT

In 1784, the fledgling United States Government

elected to buy its peace with the Six Nations of the

Iroquois Confederacy. '

The foremost author on Indian Affairs, Felix Cohen,

devoted an entire chapter of his Treatise to the unique

status of the “New York Indians’. Felix Cohen,

Handbook of Federal Indian Law, Chapter V, (Univ. of

N. Mex. Press, 1972). Unlike tribes that were defeated in

battle and relocated, the Six Nation Indians were never

defeated, the Senecas were not relocated and their title is

“original, absolute and exclusive’ and does not derive

from the United States, nor New York State. See New

York Senate Doc. No. 28 (1857).

The unique status of the Seneca Nation was recognized

by New York’s own State Legislature, which has

prohibited taxation of the reservations since 1857. 1857

N.Y. Laws Ch. 45, §4; New York Indian Law, $6

(McKinney 1950).

Congress as well, which has the exclusive power under

the Constitution to regulate Indian affairs, has

recognized the Six Nations as unique. Despite repeated

requests, Congress has refused to delegate to New York

the power to apply its civil laws on the reservations, see

25 U.S.C. §§232 & 233, and has refused to make the

reservations in New York subject to allotment. Dawes

Act, 24 Stat. 388 (1887).

‘The Treaties between the parties are set forth in an appendix to this

Brief and include the following: Fort Stanwix Treaty, Oct. 22, 1784,

U.S.—Six Nations, 7 Stat. 15; Fort Harmar Treaty, Jan. 9, 1789,

U.S.—Six Nations, 7 Stat. 38; Canandaigua Treaty of Peace, Nov. 11,

1794, U.S.—Six Nations, 7 Stat. 44; Buffalo Creek Compromise

Treaty, May 20, 1842, U.S.—N.Y.—Mass.—Seneca Nation.

3

Most importantly, in the only New York Indian tax

case to reach the United States Supreme Court, this

Court expressly held that the treaties with the Seneca

Nation allow only one interpretation—namely that the

treaties prohibit the State of New York from attempting

to apply any of its laws, including tax laws, within the

reservation. The New York Indians, 72 U.S. 761 (1866).

This Court has consistently and repeatedly held that

State intrusions onto Indian property must be measured

against the specific treaties and statutes that govern the

parties. McClanahan v. Arizona State Tax Commission,

411 US 164 (1973). This preemption analysis has recently

been reaffirmed in Oklahoma Tax Commission v. Sac and

Fox Nation, No. 92-259 (S.Ct., May 17, 1993).

Despite two hundred years of history, which includes

treaties, a State law, an Act of Congress, and a decision

from this Court, all prohibiting taxation on the

reservation, the New York Tax Commissioner on his own

motion has forged ahead without any federal or state

legislative authority and elected to apply a tax on a

commercial reservation transaction. This was done even

though the New York State Legislature in 1992 and 1993

refused to pass a bill that would have authorized the

Commissioner's unilateral conduct. New York Senate Bill

S7988B.

In light of these overwhelming facts, it is clear that

the New York State Court of Appeals correctly found the

conduct of this state agency preempted by federal law,

and the application for a writ of certiorari should be

denied.

4

ARGUMENT

The Writ Of Certiorari Should Be Denied Because The

Court Of Appeals’ Decision Is Consistent With The

Federal Treaties And Statutes Governing New York.

The petitioner's sole argument for granting certiorari

in this case is that the holding of the New York Court of

Appeals is in conflict with this Court's decisions in Moe

v. Confederated Salish and Kootenai Tribes, 425 U.S. 463

(1976), Washington v. Confederated Tribes of Colville

Indian Reservation, 447 U.S. 134 (1980), and Oklahoma

Tax Commission v. Potawatomi Tribe of Oklahoma, 498

U.S. 505 (1991) (hereinafter Moe, Colville. and

Potawatomi). As set forth in the Respondent's brief this

proposition is untenable.’

Irrespective, however, of what Moe, Colville &

Potawatomi imply or declare concerning the specific

treaties and statutes at issue in those cases, New York is

preempted from imposing its taxing or regulatory

authority on the transactions at issue under specific

treaties, federal statutes, state statutes, and an 1866

decision of this Court—The New York Indians, 72 U.S.

761—all uniquely applicable to New York and New York

Indians. These relevant sources of State and Federal law

make it abundantly clear that New York has no power or

authority to regulate these transactions on the

reservations. Thus, independently of the Indian Trader

*The New York Court of Appeals put this point beyond doubt by

finding that the tax scheme imposed “‘significant™ as opposed to

“minimal” burdens on the wholesalers and imposed a tax directly on

the retailers.

State Court characterizations of state law are accepted as binding

by this court. Knights of Pythias v. Meyer, 265 U.S. 30, 32 (1924).

Stern, Gressman, and Shapiro, Supreme Court Practice, 185 (6th ed.

1986). Cf. Commissioner v. Duberstein, 363 U.S. 278 (1960).

As stated by this Court: ‘A tax is an exaction. Ascertainment of

the scope of the exaction—what is included in it—is for the state

court.’ Wisconsin v. J.C. Penney Co., 311 U.S. 435, 443 (1940).

5

statutes or cases from other jurisdictions, the Court of

Appeals correctly found petitioner's regulations

preempted. Consequently, certiorari should be denied.

The preemption doctrine is one of the oldest and most

fundamental doctrines of this Court. In 1803 this Court

held, in Marbury v. Madison, 5 U.S. 137 (1803), that any

law that conflicts with the ‘Supreme Law of the Land

is null and void.

The United States Constitution provides that all

treaties made by the United States shall be “the

supreme Law of the Land’’—the ‘‘Laws of any State to

the Contrary notwithstanding.” U.S. Const. Art. VI, Cl.

2. State action in violation of the Treaties is null and

void. See Fellows v. Denniston, 23 N.Y. 420, 427 (1861).

As noted by Professor Tribe, in his treatise:

‘Under the supremacy clause, it is indisputable

that a valid treaty overrides any conflicting state

law, even on matters otherwise within state

control.’’ Lawrence Tribe, American Constitutional

Law [2d ed] p. 226.

Professor Tribe cites as authority several cases,

including New York's very own ‘The New York Indians

(72 U.S. 761).’

In McClanahan v. Arizona Tax Commission, 411 U.S.

164 (1973) this Court applied the preemption doctrine to

Indian Law issues. This Court articulated that State

intrusions on Indian Sovereignty must be measured by

examining the language of the ‘‘applicable treaties and

statutes which define the limits of State power ,

? Professor Tribe also points out that treaties are equal in force with

congressional acts. Accordingly, where a congressional act and a

treaty have conflicting provisions, the one later in time prevails

(Tribe, Jd., at pg. 226).

This rule is consistent with and buttresses a corollary principle:

that only Congress has the power to regulate Indian affairs and only

Congress can delegate power to the states, which are powerless to act

in the absence of congressional authorization.

6

McClanahan, at 172; Oklahoma Tax Commission v. Sac

& Fox Nation, No. 92-259 (S.Ct., May 17, 1993); White

Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144-

145 (1986); see also Ramah Navajo School Board Inc. v.

Bureau of Revenue, 458 U.S. 832 (1982) [‘‘the dominant

trend of our cases is toward treating the scope of

reservation immunity from non-discriminatory taxation

as a question of preemption’’].

Moreover, in applying the McClanahan analysis, this

Court has mandated that the language of Indian treaties

and statutes applicable to Indians must be construed

according to the following rules:

[1] Ambiguous expressions must be resolved in

favor of the Indian parties. McClanahan v. State Tax

Commissioner, 411 U.S. 164, 174 (1973); Alaska

Pacific Fisheries v. United States, 248 U.S. 78, 89

(1912); Winters v. U.S., 207 U.S. 564, 576-77 (1908).

[2] Language must be interpreted as the Indians

would have understood them. Choctaw Nation v.

Oklahoma, 397 U.S. 620, 630 (1970); United States

v. Shoshone Tribe, 304 U.S. 111, 116 (1938); Starr v.

Long Jim, 227 U.S. 613, 622-23 (1913); Jones v.

Meehan, 175 U.S. 1 (1895); Worcester v. Georgia, 31

U.S. (6 Pet.) 515, 582 (1832);

[3] Language must be liberally construed in favor

of the Indians. Choctaw Nation v. United States,

318 U.S. 423, 431-32 (1943); Tulee v. Washington,

315 U.S. 681, 685-85 (1942).

[4] “[Tjax exemptions secured to the Indians by

agreement between them and the national

government are to be liberally construed in favor of

the Indians.” Carpenter v. Shaw, 280 U.S. 363, 367.

In accordance with McClanahan and the above cited

cases, the preemption issue in the present case can only

be resolved by examining the relevant treaties and

statutes applicable to the parties in this case.

7

A. The tax regulations are invalid because they violate the

letter and spirit of specific and unique Seneca Nation Treaties,

which are the Supreme Law of the Land.

The treaties governing the Senecas and the Six

Nations Indians, which are set forth in full in the

Amicus’ Appendix, prohibit the State of New York from

applying its laws, particularly its tax laws, on

Reservations. As stated by the pre-eminent authority on

American Indian law, Felix Cohen, in a special chapter of

his treatise devoted solely to the ‘‘New York Indians’’:

‘These several treaties guaranteed to the Iroquois

(Six Nations) the right of occupancy of their well-

defined territories and had the effect of placing the

tribes and their Reservations beyond the operation

and effect of general state laws.”

Felix Cohen, Handbook of Federal Indian Law, pp.

418-419 (Univ. of N. Mex. Press, 1972), (emphasis added).

The treaties referred to by Professor Cohen include the

following:

FORT STANWIX TREATY (1784), 7 Stat. 15

This very first treaty entered into between the Six

Nations and the United States illustrates that the

parties regarded each other as sovereigns who were both

claiming a right to possess the same land. In this first

treaty the parties agreed to divide up the lands and

thereafter live in peace.

Article III fixes the boundary line between the two

parties and provides that “the Six Nations shall and do

yield to the United States, all claims to the country west

of the said boundary and then they shall be secured in

the peaceful possession of the lands they inhabit east

and north of same... .”

FORT HARMAR TREATY (17839), 7 Stat. 38.

Five years later the parties executed a second treaty,

which further defined boundaries and provided that “the

said boundary line’’ shall ‘‘remain as a division line

8

between the lands of the said Six Nations and the

territory of the United States, forever’. The United

States agreed to “relinquish” all claims to the Indians’

land ‘‘and every part thereof’.

CANANDAIGUA TREATY OF PEACE (1794),

7 Stat. 44.

This treaty between the United States and the Six

Nations, held at Canandaigua, Nov. 11, 1794, recites that

it is made for the purpose of removing from the Six

Nations’ mind ‘‘all causes of complaint and establishing

a firm and permanent friendship’. The United States

acknowledges the boundaries of the lands belonging to

the members of the Six Nations. In Article III the

United States expressly promised:

‘Now the United States acknowledge all the lands

within the aforementioned boundaries to be the

property of the Seneca Nation; and the United

States will never claim the same, nor disturb the

Senecas in the free use and enjoyment thereof; but it

shall remain theirs until they choose to sell the same

to the people of the United States who have the right

to purchase.” 7 Stat. 44, Article III.

1842 COMPROMISE TREATY WITH THE SENECA

NATION BUFFALO CREEK RESERVATION,

7 Stat. 586.

In addition, and most importantly, there is the Buffalo

Creek Compromise Treaty of 1842 to which the State of

New York, Massachusetts, the United States and the

Seneca Nation were parties. Explicit language in this

treaty prohibits New York State from taxing Seneca

Nation Indian Reservation activities:

‘Art. 9. The parties to this compact mutually agree

to solicit the influence of the United States to

protect such of the lands of the Senecas within the

State of New York as may from time to time remain

in their possession from all taxes, and assessments

for roads, highways and other purposes until such

lands shall be sold and conveyed by said Indians

and possession thereof shall be relinquished by

them.” 7 Stat. 586.

This treaty was later codified by the New York

Legislature and revised to provide that no taxes would

be imposed on any reservations within the state. See

New York Indian Law §6 (McKinney, 1950).

The treaties applicable to the New York Indians are

markedly different from the treaties applicable to the

western tribes. The petitioner relies heavily on cases

which are based on treaties governing only the western

tribes. The chief difference is that the western tribes,

who were all defeated in battle, were forced to relinquish

title to their lands. In exchange they were allowed the

“use” of land owned by the United States, often

requiring the tribes to relocate.

Moe Treaties

In Moe v. Confederated Salish and Kootenai Tribes,

425 U.S. 463 (1976), for example, the treaty with the

Flatheads provided ‘‘The Flathead Nation hereby cede,

relinquish and convey to the U:S. all their right, title and

interest in the country occupied and claimed by them

within the described boundaries. ..."' Treaty with the

Flatheads, July 16, 1855, U.S.—Flathead Nation, 12

Stat. 975. The treaty went on to provide that the tract of

the land “above ceded’’ would be reserved for the “use

and occupation’’ of the tribe. Treaty with the Flatheads,

July 16, 1855, U.S.—Flathead Nation, 12 Stat. 975.

This treaty gave the Flatheads vastly limited rights

compared to what the Senecas enjoy. Noticeably absent

from the Flathead Treaty is the specific language found

in the Seneca Treaty of 1789, where the U.S. agreed to

“confirm the said boundary line’’ of the earlier treaty ‘‘to

the end that it may be and remain as a division line

between the lands of the said Six Nations and the

10

territory of the U.S., forever’’ Fort Harmar Treaty, 7

Stat. 38 (emphasis added). The Moe treaty did not

contemplate any similar jurisdictional division between

the Flatheads and the United States.

To the contrary, the Flathead Treaty placed the

reservation land under the ownership of the U.S. and

made it subject to allotment at the discretion of the

President. Treaty with the Flatheads, 12 Stat. 975. The

Senecas were never made subject to the Allotment Act

of 1887, a reflection of their unique status. Also,

significantly absent from the Moe treaty is any language

similar to the promises made in the 1794 Treaty with the

Senecas, wherein the ‘U.S. acknowledged that all land

within the reservation boundaries was the property of

the Seneca Nation’’ and promised that the “United

States will never claim the same nor disturb the Seneca

Nation in the free use and enjoyment thereof’. Treaty at

Canandaigua, 7 Stat. 44. The Flathead Treaty does not

contain any such explicit agreement prohibiting future

interference or disturbance in the use of their own

tribally held property.

Finally, perhaps the most significant difference is the

obvious absence from the Flathead treaty of any

language prohibiting state taxation on or within their

reservation. In the Flathead treaty there is no language

or provision similar to Article 9 of the 1842 Seneca

Treaty in which the United States and the State of New

York promised ‘‘to protect such lands from all taxes and

assessments '. Buffalo Creek Treaty, 7 Stat. 586.

Colville Treaties

The Treaties at issue in Washington v. Confederated

Tribes of the Colville Indian Reservation, 447 U.S. 134,

and specifically referred to by the Court, are the

following: (1) Treaty of Point Elliot, Jan. 22, 1855,

U.S.—Dwadmish and Suqudmish Indians, 12 Stat. 939; (2)

Treaty with the Makah Tribe, Jan. 31, 1855,

ll

U.S.—Makah, 12 Stat. 939; (3) Treaty with the Yakamas,

June 9, 1855, U.S.—Yakama Nation, 12 Stat. 951.

These treaties are quite similar to the Flathead Treaty

in Moe. The Treaties with the Dwamish Indians and the

Yakamas both generally provide that these tribes cede

their claims of ownership to the United States and that

specified tracts of land are reserved ‘for the use and

occupation” of the tribes.

The treaty with the Makah tribe similarly provides

“that a tract of land is reserved for the present use and

occupation” of the tribe. The Makah Treaty also made

the tribe subject to involuntary removal from such

reservation at anytime. Treaty with the Makah Tribe, 12

Stat. 939 (1855) (emphasis added).

All three of the Treaties with the Dwamish, Makah,

and Yakamas made the reserved land subject to

Allotment at the “‘discretion’’ of the President. Treaty at

Point Elliot, 12 Stat. 939 (1855). Significantly, once

again the treaties cited in Colville contain no specific

such reservations, as does the 1842 Treaty with the

Seneca Nation. 7 Stat. 586. Such preemptive language is

noticeably absent from all treaties relied on in Colville.

12

Potawatomi Treaties

The Potawatomi have even less autonomy than the

Colville and Flathead tribes. The District Court in the

Potawatomi opinion (W.D. Oklahoma, F.D.C., CIV-87-

0338-W) describes the tragic history of the tribe's

removal from the Great Lakes to Kansas and then to

Oklahoma. The court also related their allotment and

receipt of new land conveyed to them by the federal

government. Notably, the land at issue in Potawatomi

was conveyed to the Citizen Band by virtue of legislation

and a quit claim deed, both expressly providing that

“these tracts were not exempt from taxation or

restriction on use, management or disposition because of

Indian ownership.” See Oklahoma Tax Comm. v.

Potawatomi, supra; see also State of Oklahoma, County

of Pottowautomie, Book 281, Quitclaim Deeds, p. 28.

As in Moe and Colville, treaties with the Potawatomis

are significantly different from the relevant treaties

made with the Seneca Nation. Treaty with the

Pottowautomie Nation, June 5 & 17, 1846,

U.S.—Pottowautomies, 9 Stat. 853 (1846); Treaty with

the Pottawatomies, Nov. 15, 1861, U.S.—Pottawatomie

tribe, 12 Stat. 1191; Treaty with the Pottawatomie

Indians, Feb. 27, 1967, U.S.—Pottawatomie Tribe, 15

Stat. 531. The Senecas never relinquished title to their

land. They were never relocated like the Potawatomis.

Their title to the Cattaraugus and Allegheny

reservations is “original” “absolute” and “exclusive”. New

York Sen. Doc. 28, 1857. As noted above, the Senecas

are not subject to allotment. However, the most direct

contrast between the two situations is that the

Potawatomi lands were specifically declared by Congress

as ‘‘not exempt from taxation’’. 74 Stat. 903; 78 Stat.

392, whereas the 1842 Treaty with the Senecas declared

their reservation land free ‘from all taxes and

assessments’’. This tax exempt language is also found in

25 U.S.C. 233 (“Provided further, that nothing in this

section shall be construed as subjecting the lands within

13

Indian Reservation in the State of New York to Taxation

for state or local purposes.”’) and New York Indian Law,

§6 (“no taxation for any purpose whatsoever.’’).

B. The New York Legislature recognized the unique effect

of the Seneca Treaties by declaring the reservations wholly

exempt from taxation in Indian Law Section 6.

in the 1842 Buffalo Creek Compromise Treaty with the

Senecas, the United States and the State of New York,

who were both parties, expressly promised in Article 9 to

protect the lands of the Senecas ‘‘from all taxes’ until

such lands are conveyed by the Senecas and possession

relinquished by them.

In 1841 New York attempted to apply its tax laws

within the Seneca Nation reservations. In light of the

1842 Seneca Treaty, a New York State Senate

Committee in 1857 reviewed the treaties and concluded

as follows:

“From a careful examination of the several treaties

heretofore made with the Senecas ... your

committee are clearly of the opinion, that the

Senecas do not hold the title to the Cattaraugus and

Allegheny reservations under the State of New

York, nor under the United States, but their title to

same is i absolute and exclusive’ New York

Senate Doc. No. 28 ( (Emphasis added).

The New York Senate Judiciary Report adopted by the

Senate went on to conclude that the State of New York,

as a party to the treaty, “is also bound not to impose

taxes on said reservations” /d.

Based on the Senate Judiciary Report, the New York

State Legislature enacted in 1857 a state law expressly

prohibiting taxes:

“No tax shall hereafter be assessed or imposed on

either of said reservations, or on any part thereof,

for any purposes whatever, so long as said

reservations remain the property of the Seneca

14

Nation; and all acts of the legislature of this state

conflicting with the visions of this section, are

hereby repealed.” 1857 New York Laws Ch. 45, §4.

Since that time the State of New York Legislature has

continually reaffirmed the public policy of tax exemption

on Indian reservations. In 1892, this status was codified

as part of the state’s general Laws in Chapter V, Article

I, Sec. 6 incorporating the same text as the 1857 statute.

In 1907, the statute was revised and became part of the

Consolidated Laws in Chapter 5, Article 2, Sec. 6. The

language of the statute was broadened to generally

exempt all reservations in New York from state taxation,

in addition to the Seneca reservations. The new Sec. 6

was entitled Exemption of reservation lands from

taxation and stated:

“No taxes shall be assessed for any purpose

whatever, upon any Indian reservation in this state,

so long as the land of such reservation shall remain

the property of the nation, tribe or band occupying

the same’’. 1909 New York Laws, Ch. 31, Article 2.

Today, that provision is known as Indian Law Sec. 6

and thus this statute presently acknowledges and

confirms that the “Treaties made with the Senecas have

the effect of precluding any state taxation, “for any

purpose whatever’’, on the Indian reservations within the

State of New York. New York Senate Doc. 28 (1857).

C. The uniqueness of the Seneca Treaties was conclusively

established by the United States Supreme Court in 1866 in the

New York Indians case, which held that New York may not

apply its laws within Seneca borders for any purpose.

Shortly after the New York Senate had performed its

own analysis of the treaties and the State Legislature

had adopted what is now Indian Law §6, banning all

State taxes within the reservation, the issue was raised

in the United States Supreme Court. In The New York

Indians, 72 U.S. 761, this Court declared invalid the

1841 statute which authorized the construction of roads

15

and bridges on the reservations and which also provided

for tax assessments to pay for them. Even though the

statute barred the State from entering the reservation

for the purpose of collecting the tax, this Court

invalidated the law and declared the reservations wholly

exempt from not only state taxation but also from State

action building roads within Reservation borders.

This Court examined the treaties and came to the same

conclusion as did the New York Senate four years

earlier—that the State of New York has no power

whatsoever over the Reservations.

[T]he rights of the Indians do not depend on this

or any other statutes of the State but upon treaties

which are the supreme law of the land: it is to these

treaties we must look to ascertain the nature of

these rights, and the extent of them... .

“These treaties are historical ... beginning in

1784 and coming down to 1842. That of 1794,

entered into at Canandaigua, New York, may be

cited as a specimen. Third Article, ‘The United

States acknowledge all the land within the

aforementioned boundaries . .. to be the property of

the Seneca Nation, and the United States will never

claim the same nor disturb the Seneca Nation, ... in

the free use and enjoyment thereof; but it shall

remain theirs until they choose to sell the same to

the people of the United States, who have the right

to purchase. ...

“These are the guarantees given by the United

States, and which her faith is pledged to uphold.

Now we have seen that this law, [the 1841 NY

Statute] taxing the lands in the reservations,

authorizes the county authorities to enter upon

them, survey and lay out roads, construct and repair

them, construct and repair bridges, assess and

collect taxes to meet the expenses, and survey the

lands for the purpose of making the assessments,

16

and in pursuance of these powers the proper officers

of the counties have assessed upon them large sums

for the years 1840, 1841, 1842, and 1843.

“The answer to all this interference with the

possession and occupation, and exercise of authority

is, that the sale of the lands in default of payment of

the taxes shall not “affect the right of occupancy of

the Indians." We are of opinion that this is not a

satisfactory answer.

‘We have looked through all the treaties from

1784 down to the present time... .

“Until the Indians have sold their lands, . . . they

are to be regarded as still in their ancient

possessions, and are in under their original rights,

and entitled to the undisturbed enjoyment of them.

“We must say ... these reservations [are] wholly

exempt from State taxation, ... and the exercise of

this authority over them is an unwarrantable

interference, inconsistent with the original title of

the Indians, and offensive to their tribal relations”

The New York Indians, 72 U.S. at 766-771 (emphasis

added).

What is important to note about this holding of the

Supreme Court invalidating the 1841 statute, is that it

was based on the Treaty language of 1794, 7 Stat. 44,

which recognized the ‘‘ancient possession”’ of the Indians

of New York and. guaranteed their “undisturbed

enjoyment’. Such language, held this Court, not only

rendered the reservations ‘“‘wholly exempt from State

taxation’’ but prohibited the state from entering for the

purpose of constructing roads and bridges. Indeed, The

New York Indians case was later described by this Court

as one “where the State sought to raise money by taxes.

to build roads in Indian Reservations and where existing

treaties forbade the State’s building such roads”’

Oklahoma Tax Commission v. United States, 319 U.S.

598, 602 (1943).

17

The point is that what the treaties forbade, and forbid,

is the interference with the possessory right of the

Indians to use the reservation land as they see fit.

Building roads without approval on the reservations

interfered with this possessory right; taxing the land to

finance this construction interfered with such possessory

right; and what the Department of Taxation and Finance

has done here interferes with the basic possessory right

of the Seneca to conduct trade without the interference

and intrusion of the State of New York.

D. Congress reaffirmed the unique effect of the Seneca

Treaties when, in enacting 25 U.S.C. §233, it refused to grant

New York the power to extend its civil laws to the reservations

and further expressly prohibited state taxation on such

reservations.

The United States Constitution grants to Congress the

exclusive, plenary power to regulate Indian affairs

(United States Constitution, Art. I, §8, cl.3). The

founding fathers recognized the need to protect the

tribes from encroachment by state governments. This

philosophy is reflected in the Indian Trader statutes,

which, in accord with the United States Constitution,

have completely preempted the field and prohibit state

governments from encroaching into reservation matters.

Warren Trading Post Co. v. Arizona Tax Comm., 380

U.S. 685 (1965); Central Machinery Co. v. Arizona Tax

Comm., 448 U.S. 160 (1980). Only Congress, therefore,

can regulate trade occurring on the reservations. Absent

an express delegation of power from Congress, the state

may not regulate reservation affairs. Montana uv.

Blackfeet, 171 U.S. 759, 765 (1985), County of Yakima v.

Yakima Nation, USS. , 112 S. Ct. 683 (1992).

Congress did delegate in 1948 to New York State the

power to apply its criminal laws on the reservations (25

U.S.C. 232). Congress was asked, and expressly refused,

however, to allow New York to apply its civil laws on the

reservations.

18

This fact was admitted by Tax Commissioner Wetzler,

one of the petitioners herein, in a statement made last

year to the New York State Senate Committee, which

was considering a bill that would make New York's tax

laws applicable to the reservations. Commissioner

Wetzler candidly admitted:

“Despite the fact that New York once sought a

specific Congressional delegation of general civil

authority over Indians and Indian reservations,

Congress has not given New York such authority.

New York's general civil laws—including its tax

laws—are not, therefore, automatically applicable to

tribe members on reservations."

This statement of New York's Tax Commissioner

succinctly summarizes the attempts by New York to

extend its civil control over the reservations. Throughout

much of the early 1900's, efforts were made by leaders in

New York to assimilate the New York Indians and

abolish their Sovereign status. Legislative documents in

New York, such as the Whipple Report illustrate the

thinking at that time, which was “that the best that

could be done for the Indian would be ‘exterminate the

tribe and preserve the individual; make citizens of them

and divide their lands in_ severalty’’’ Lawrence

Hauptman, Formulating American Indian Policy in New

York State, 1970-1986, quoting the Whipple Report, New

York State Assembly Document No. 51 (1888).

‘The footnote to the statement provided: “The purported grant of

civil jurisdiction contained in 25 USC 233 is virtually identical to that

of another federal statute (28 USC 1360), which the U.S. Supreme

Court ruled in Bryan v. Itasca County, (426 U.S. 313 (1976)) was not

a general grant of authority over Indians and reservations, but only

opened up state courts to tribe members. ’

19

In furtherance of this plan, Congress was asked to

pass a law that would divide in severalty the lands of the

Six Nations. HR 18735, 63rd Cong. 3d Sess. (1915). A

House document on that bill noted a second attempt was

a constitutional amendment at the state level which

would have extended state laws to the reservations.

Gerald Gunther, Governmental Power and New York

Indian Lands—A Reassessment of a Persistent Prob

of Federal—State Relations, Buff. L. Rev., 1, 13 (Fall

1958). Along those same lines, in 1930 the Snell Bill was

introduced into Congress. This bill would have

authorized what the petitioner herein now seeks—State

law would generally have applied throughout the

reservation. HR 9720, 71st Congress 2nd Sess. 1930.

Like earlier attempts to grant New York State civil

authority over the Reservations, the Snell Bill was

rejected by Congress.

Instead, in response to a Second Circuit case holding

that New York Courts had no jurisdiction to hear civil

cases involving Indians, United States v. Forness, 125 F.

2d 928 (2d Cir. 1942), Congress in 1950 enacted 25 U.S.C.

$233 (1989). Section 233 did not provide that New York's

civil laws would apply on the reservations but provided

only that New York Courts could be used as a forum for

civil disputes involving Indians. For clarity, Congress

added a provision in §233 that “nothing in this section

shall be construed as subjecting the lands within any

Indian reservation in the State of New York to taxation

for State or Local purposes” 25 U.S.C. §233 (1989)

(Emphasis added).

Under the Constitution New York is powerless to

interfere with Indian matters unless Congress so

authorizes. Congress has expressly refused to delegate to

petitioner the authority they have usurped.

20

CONCLUSION

Under McClanahan, 411 U.S. 164, and its progeny, the

issue of preemption must be governed by the specific

treaties and federal statutes applicable to the parties. In

the case of the Seneca Nation and other New York

Indians, the treaties themselves expressly provide that

the reservations shall be free from State laws and

particularly State tax laws

& WILDER

The unilateral action of the New York State

Department of Taxation contradicts the laws of New

York's own State Legislature and violates 200 years of

history, including treaties as well as an Act of Congress

(25 U.S.C. $233) and a decision from this Court (The New

York Indians), both of which examined the applicable

treaties and found that they prohibit applying state tax

laws within the reservations.

For all these reasons the New York State Court of

Appeals correctly found the petitioner's regulations

preempted, and the petition for certiorari should be

denied.

Respectfully submitted,

ANTHONY J. COLUCCI, JR.

Counsel of Record

HOBBS, STRAUS, DEAN BLOCK & COLUCCI, P.C.

JOSEPH F. CRANGLE, Of Counsel

HANS WALKER, JR., Of Counsel 1250 Statler Towers

1819 H Street, N.W. Suite 800 Buffalo, New York 14202

Washington, D.C. 20006 Telephone: (716) 854-4080

Telephone: (202) 783-8100

Attorneys for Amici Curiae Seneca Nation

of Indians; Mohawk Tribal Council; Iroquois

Business Association; Honor Indian Treaties;

Seneca Coalition Against Taxes

AAI

AMICI CURIAE APPENDIX

TREATY WITH THE SIX NATIONS, 1784

Oct. 22, 1784

7 Stat., 15

Articles concluded at Fort Stanwix, on the twenty-second

day of October, one thousand seven hundred and

eighty-four, between Oliver Wolcott, Richard Butler,

and Arthur Lee, Commissioners Plenipotentiary from

the United States, in Congress assembled, on the one

Part, and the Sachems and Warriors of the Six

Nations, on the other.

The United States of America give peace to the

Senecas, Mohawks, Onondagas and Cayugas, and receive

them into their protection upon the following conditions:

ARTICLE I.

Six hostages shall be immediately delivered to the

commissioners by the said nations, to remain in

possession of the United States, till all the prisoners,

white and black, which were taken by the said Senecas,

Mohawks, Onondagas and Cayugas, or by any of them,

in the late war, from among the people of the United

States, shall be delivered up.

ARTICLE II.

The Oneida and Tuscarora nations shall be secured in

the possession of the lands on which they are settled.

ARTICLE III.

A line shall be drawn, beginning at the mouth of a

creek about four miles east of Niagara, called

Oyonwayea, or Johnston's Landing Place, upon the lake

AA2

named by the Indians Oswego, and by us Ontario; from

thence southerly in a direction always four miles east of

the carrying-path, between Lake Erie and Ontario, to the

mouth of Tehoseroron or Buffalo Creek on Lake Erie;

thence south to the end of the said north boundary;

thence south along the west boundary of the said state,

to the river Ohio; the said line from the mouth of the

Oyonwayea to the Ohio, shall be the western boundary of

the lands of the Six Nations, so that the Six Nations

shall and do yield to the United States, all claims to the

country west of the said boundary, and then they shall

be secured in the peaceful possession of the lands they

inhabit east and north of the same, reserving only six

miles square round the fort of Oswego, to the United

States, for the support of the same.

ARTICLE IV.

The Commissioners of the United States, in

consideration of the present circumstances of the Six

Nations, and in execution of the humane and liberal

views of the United States upon the signing of the above

articles, will order goods to be delivered to the said Six

Nation for their use and comfort.

Oliver Wolcott,

[L.S.]

Oneidas:

Richard Butler, [L.S.] Otyadonenghti, his x mark,

Arthur Lee, {[L.S.] Dagaheari, his x mark,

Mohawks: Cayuga:

Onogwendahonji, his x mark, [L.S.] amy his x mark,

Touighnatogon, his x mark, {L.S.]

Onondagas: ouninaianaee his x mark

Oheadarighton, his mark, {L.S.} Tharondawagon, his x mark,

Kendarindgon, his x mark, {L.S.] Seneka Abeal:

Senekas: Kayenthoghke, his x mark,

Tayagonendagighl, his x mark, [L.S.]

Tehonwaeaghrigagi, his x mark, [L.S.]

[L.S.]

[L.S.]

[L.S.]

[L.S.]

[L.S.]

[L.S.]

Witnesses:

Sam. Jo. Atlee,

Wm. Maclay,

Fras. Johnston,

Pennsylvania Commissioners.

Aaron Hill

Alexander Campbell,

AA3

James Dean,

Saml. Montgomery,

John Mercer, lieutenant,

William Pennington, lieutenant.

Mahlon Hord, ensign,

Hugh Peebles.

AA4

TREATY WITH THE SIX NATIONS, 1789

Jan. 9, 1789

7 Stat., 38

Articles of a treaty made at Fort Harmar, the ninth day

of January, in the year of our Lord one thousand seven

hundred and eighty-nine, between Arthur St. Clair,

esquire, governor of the territory of the United States

of America, north-west of the river Ohio, and

commissioner plenipotentiary of the said United

States, for removing all causes of controversy,

regulating trade, and settling boundaries, between the

Indian nations in the northern department and the

said United States, of the one part, and the sachems

and warriors of the Six Nations, of the other part:

Art. 1. WHEREAS the United States, in congress

assembled, did by their commissioners, Oliver Wolcott,

Richard Butler, and Arthur Lee, esquires, duly appointed

for that purpose, at a treaty held with the said Six

Nations, viz: with the Mohawks, Oneidas, Onondagas,

Tuscaroras, Cayugas, and Senekas, at fort Stanwix, on

the twenty-second day of October, one thousand seven

hundred and eighty-four, give peace to the said nations,

and receive them into their friendship and protection;

And whereas the said nations have now agreed to and

with the said Arthur St. Clair, to renew and confirm all

the engagements and stipulations entered into at the

before mentioned treaty at fort Stanwix; and whereas it

was then and there agreed, between the United States of

America and the said Six Nations, that a boundary line

should be fixed between the lands of the said Six

Nations and the territory of the said United States,

which boundary line is as follows, vix: Beginning at the

mouth of a creek, about four miles east of Niagara, called

AA5

Ononwayea, or Johnston's Landing Place, upon the lake

named by the Indians Oswego, and by us Ontario; from

thence southerly, in a direction always four miles east of

‘the carrying place, between lake Erie and lake Ontario,

to the mouth of Tehoseroton, or Buffalo creek, upon lake

Erie; then south, to the northern boundary of the state

of Pennsylvania; thence west, to ;the end of the said

north boundary; thence south, along the west boundary

of the said state to the river Ohio. The said line, from the

mouth of Ononwayea to the Ohio, shall be the western

boundary of the lands of ;the Six Nations, so that the

Six Nations shall and do yield to the United States, all

claim to the country west of the said boundary; and then

they shall be secured in the possession of the lands they

inhabit east, north, and south of the same, reserving only

six miles square, round the fort of Oswego, for the

support of the same. The said Six Nations, except the

Mohawks, none of whom have attended at this time, for

and in consideration of the peace then granted to them,

the presents they then received, as well as in

consideration of a quantity of goods, to the value of

three thousand dollars, now delivered to them by the

said Arthur St. Clair, the receipt whereof they do hereby

acknowledge, do hereby renew and confirm the said

boundary line in the words before mentioned, to the end

that it may be and remain as a division line between the

lands of the said Six Nations and the territory of the

United States, forever. And the undersigned Indians, as

well in their own names as in the name of their

respective tribes and nations, their heirs and

descendants, for the considerations before mentioned, do

release, quit claim, relinquish, and cede, to ;the United

States of America, all the lands west of the said

boundary or division line, and between the said line and

the strait, from the mouth of Ononwayea and Buffalo

AA6

Creek, for them, the said United States of America, to

have and to hold the same, in true and absolute

propriety, forever.

ART. 2. The United States of American confirm to

the Six Nations, all the lands which they inhabit, lying

east and north of the before mentioned boundary line,

and relinquish and quit claim to the same and every part

thereof, excepting only six miles square round the fort

of Oswego, which six miles square round said fort is

again reserved to the United States by these presents.

ART. 3. The Oneida and Tuscarora nations are also

again secured and confirmed in the possession of their

respective lands.

ART. 4. The United States of America renew and

confirm the peace and friendship entered into with the

Six Nations, (except the Mohawks), at the treaty before

mentioned, held at fort Stanwix, declaring the same to be

perpetual. And if the Mohawks shall, within six months,

declare their assent to the same, they shall be considered

as included.

Done at Fort Harmar, on the Muskingum, the day and

year first above written.

In witness whereof, the parties have hereunto,

interchangeable, set their hands and seals.

Ar. St. Clair, [L.S.] |Owenewa, or Thrown in the Water,

Cageaga, or Dogs Round the his x mark,

Fire, {L.S.] Gyantwaia, or Cornplanter, his x

Sawedowa, or The Blast, {L.S.] mark,

Kiondushowa, or Swimming Gyasota, or Big Cross, his x mark,

Fish, {L.S.] Kannawsee, or New Arrow,

Oncahye, or Dancing Feather, [L.S.} Achiout, or Half Town,

Sohaeas, or Falling Mountain, [L.S.} Anachout, or The Wasp, his x mark [L.S.]

Otachsaka, or Broken Tomahawk, Chishekoa, or Wood Bug, his x

his x

mark, {L.S.] mark,

AA7

Tekahias, or Long Tree, his x Sessewa, or Big Bale of a Kettle,

mark {L.S.] Sclahowa, or Council Keeper,

Onecnsette, or Loaded Man, his Tweanias, or Broken Twig,

x mark, [L.S.] Sonachghowa, or Full Moon,

x mark, {[L.S.| Cachunwasse, or Twenty Canoes,

Kiahtulaho, or Snake, {L.S.| Hickonquash, or Tearing Asunder,

Aqueis, or Bandy Legs, [L.S.]

Kiandogewa, or Big Tree, his

x mark, {L.S.]}

In presence of-

Jos. Harmar, lieutenant-colonel commanding

First U.S. Regiment and brigadier-general

by brevet,

Richard Butler,

Jno. Gibson,

Will. McCurdy, captain,

Ed. Denny, ensign First U.S. Regiment,

A. Hartshorn, ensign,

Robt. Thompson, ensign, First U.S. Regiment,

{L.S.]

{L.S.]

{L.S.}

{L.S.]

[L.S.]

{L.S.}

AA8

TREATY WITH THE SIX NATIONS, 1794

Nov. 11, 1794

7 Stat., 44, Proclamation,

Jan. 21, 1795

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 purpose 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 purpose; 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 Nations.

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 reservations, to be their property; and the

United States will never claim the same, nor disturb

them or either of the Six Nations, nor their Indian

friends residing thereon and united with them, in the free

AAY

use and enjoyment thereof: but the said reservations

shall remain theirs, until they choose to sell the same to

the people of the United States, who have the right to

purchase.

ARTICLE III.

The land of the Seneka nation is bounded as follows:

Beginning on Lake Ontario, at the north-west corner of

the land they sold to Oliver Phelps, the line runs

westerly along the lake, as far as O-yong-wong-yeh

Creek, at Johnson's Landing place, about four miles

eastward from the fort of Niagara; then southerly up

that creek to its main fork, then straight to the main

fork of Stedman’s Creek, which empties into the river

Niagara, above fort Schlosser, and then onward, from

that fork, continuing the same straight course, to that

river; (this line, from the mouth of O-yong-wong-yeh

Creek to the river Niagara, above fort Schlosser. being

the eastern boundary of a strip of land, extending from

the same line to Niagara river, which the Seneka nation

ceded to the King of Great Britain, at a treaty held

about thirty years ago, with Sir William Johnson;) then

the line runs along the river Niagara to Lake Erie; then

along Lake Erie to the north-east corner of a triangular

piece of land which the United States conveyed to the

state of Pennsylvania, as by the President’s patent,

dated the third day of March, 1792; then due south to

the northern boundary of that state; then due east to the

south-west corner of the land sold by the Seneka nation

to Oliver Phelps; and then north and northerly, along

Phelps’s line, to the place of beginning on Lake Ontario.

Now, the United States acknowledge all the land within

. the aforementioned boundaries, to be the property of the

Seneka nation; and the United States will never claim

the same, nor disturb the Seneka nation, nor any of the

AAI10

Six Nations, or of their Indian friends residing thereon

and united with them, in the free use and enjoyment

thereof; but it shall remain theirs, until they choose to

sell the same to the people of the United States, who

have the right to purchase.

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 enjoyment thereof:

Now, the Six Nations, and each of them, hereby engage

that they will never claim any other lands within the

boundaries of the United States; nor ever disturb the

people of the United States in the free use and

enjoyment thereof.

ARTICLE V.

The Seneka nation, all others of the Six Nations

concurring, cede to the United States the right of

making a wagon road from Fort Schlosser to Lake Erie,

as far south as Buffalo Creek; and undisturbed use of

this road, for the purposes of travelling and

transportation. And the Six Nations, and each of them,

will forever allow to the people of the United States, a

free passage through their lands, and the free use of the

harbors and rivers adjoining and within their respective

tracts of land, for the passing and securing of vessels

and boats, and liberty to land their cargoes where

necessary for their safety.

AAII1

ARTICLE VI.

In consideration of the peace and friendship hereby

established, and of the engagements entered into by the

Six Nations; and because the United States desire, with

humanity and kindness, 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

thousand dollars. And for the same consideration, and

with a view to promote the future welfare 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 hundred 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, 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

‘It appears that this treaty was never ratified by the Senate. See

American State Papers, Indian Affairs, vol. 1, p. 232. Also, post

1027.

AAI12

injuries done by individuals 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 necessary 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 Indians 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

eleventh day of November, in the year one thousand

seven hundred and ninety-four.

Timothy Pickering, {L.S.] Tauhoondos, his x mark, or

Onoyeahnee, his x mark, {L.S.} Open the Way,

Konneatorteeooh, his x mark, Twaukewasha, his x mark,

or Handsome Lake, [L.S.} Sequidongquee, his x mark,

Tokenhyouhav, his x mark, alias Little Beard,

alias Captain Key. [L.S.) Kodjeote, his x mark, or

Oneshauee, his x mark, {L.S.] Half Town,

Hendrick Aupaumut, [L.S.] Kenjauaugus, his x mark,

David Neesoonhuk, his x mark, [L.S.] or Stinking Fish,

Kanatsoyh, alias Nicholas

Kusik, [L.S.] | Soonohquaukau, his x mark,

[L.S.}

{L.S.]

[L.S.]

[L.S.]

{L.S.]}

[L.S.}

Sohhonteoquent, his x mark, [L.S.]

Ooduhtsait, his x mark, [L.S.]}

Konoohqung, his x mark, [L.S.]

Tossonggaulolus, his x mark, [L.S.]

John Skenendoa, his x mark, {L.S.]}

Oneatorleeooh, his x mark, [{L.S.]

Kussauwatau, his x mark, [L.S.]

Eyootenyootauook, his x mard, [L.S.]

Kohnyeaugong, his x mard,

alias Jake Stroud, {L.S.]

Shaguiesa, his x mark, {L.S.]

Teeroos, his x mark, alias

Captain Prantup, {L.S.]

Sooshaoowau, his x mark, {L.S.]

Henry Young Brant, his x mark,[L.S.]

Sonhyoowauna, his x mark,

or Big Sky, {L.S.]

Onaahhah, his x mark, [L.S.]

Hotoshahenh, his x mark, [L.S.]

Kaukondanaiya, his x mark, {L.S.]

Nondiyauka, his x mark, {L.S.]

Kossishtowau, his x mark, [L.S.]

Oojaugenta, his x mark, or Fish [L.S.]}

Carrier, {L.S.]

Toheonggo, his x mark, {L.S.]

Ootaguasso, his x mark, [L.S.]

Joonondauwaonch, his x mark, [L.S.]

Kiyauhaonh, his x mark, [L.S.]

Ootaujeaugenh, his x mark,

or Broken Axe, [L.S.]

Witnesses:

Israel Chapin.

Willian Shepard, jr.

James Smedley.

John Wickham.

Augustus Porter.

James K. Garnsey.

William Ewing.

AAI13

Twenniyana, his x mark,

Jishkaaga, his x mark, or Green

Grasshopper, alias Little Billy,

Tuggehshotta, his x mark,

Tehongyagauna, his x mark,

Tehongyoowush, his x mark,

Konneyoowesot, his x mark,

Tioohquottakauna, his x

mark, or Woods on Fire,

Taoundaudeesh, is x mark,

Honayawus, his x mark, alias

Farmer's Brother,

Soggooyawauthau, his x mark,

alias Red Jacket,

Konyootiayoo, his x mark,

Sauhtakaongyees, his x mard,

or Two Skies of a length,

Ounnashattakau, his x mark,

Kaungyanehquee, his x mark,

Sooayoowau, his x mark,

Kaujeagaonh, his x mark,

or Heap of Dogs,

Soonoohshoowau, his x mark,

Thaoowaunias, his x mark,

Soonongjoowau, his x mark,

Kiantwhauka, his x mark,

alias Cornplanter,

Kiantwhauka, his x mark,

Israel Chapin, jr.

Horatio Jones,

Joseph Smith,

Jasper Parish,

Intrpreters.

Henry Abeele.

{L.S.]

{L.S.]

{L.S.]

{L.S.]

{L.S.]

[L.S.]

{L.S.]

[L.S.]

[L.S.}

[L.S.]}

[L.S.]

{L.S.]

{L.S.]

{L.S.]

[L.S.]

{L.S.]

[L.S.]

{L.S.]

[L.S.]

[L.S.}

{L.S.]

AAI4

TREATY WITH THE SENECAS

May 20, 1842

7 Stat., 586, Proclamation,

Aug. 26, 1842

Articles of a treaty made and concluded at Buffalo Creek,

in the State of New York, on the twentieth day of May

in the year one thousand eight hundred and forty-two,

between the United States of America, acting herein

by Ambrose Spencer their Commissioner, thereto duly

authorized, on the one part, and the chiefs, headmen

and warriors of the Seneca nation of Indians, duly

assembled in council, on the other part.

Whereas a treaty was heretofore concluded, and made

between the said United States, and the chiefs,

headmen, and warriors of the several tribes of New York

Indians, dated the fifteenth day of January in the year

one thousand eight hundred and thirty-eight, which

treaty having been afterwards amended, was proclaimed

by the President of the United States, on the fourth of

April one thousand eight hundred and forty, to have

been duly ratified.

And whereas on the day of making this treaty, and

bearing even date herewith, a certain indenture was

made executed and concluded by and between the said

Seneca nation of Indians and Thomas L. Ogden, and

Joseph Fellows, assignees under the State of

Massachusetts, in the presence, and with the

approbation of a Commissioner appointed by the United

States, and in the presence and with the approbation of

Samuel Hoare, a superintendent on the part of the

commonwealth of Massachusetts, which indenture is in

the words and figures following to wit:

AAI5

“THIS INDENTURE made and concluded between

Thomas Ludlow Ogden of the city of New York, and

Joseph Fellows of Geneva, in the county of Ontario of

the one part, and the chiefs and headmen of the Seneca

nation of Indians, on the other part at a council duly

assembled and held at Buffalo Creek in the State of New

York on the twentieth day of May in the year one

thousand eight hundred and forty-two in the presence of

Samuel Hoare, the superintendent thereto authorized and

appointed by and on the part of the commonwealth of

Massachusetts, and of Ambrose Spencer a Commissioner

thereto duly appointed and authorized on the part of the

United States.

“Whereas at a council held at Buffalo Creek on the

fifteenth day of indenture of that date was made and

executed by and between the parties to this agreement,

whereby the chiefs and headmen of the Seneca nation of

Indians for the consideration of two hundred and two

thousand dollars did grant, bargain, release and confirm

unto the said Thomas Ludlow Ogden and Joseph

Follows, all those four several tracts of land, situate

within the State of New York, then and yet occupied by

the said nation, or the people thereof, severally described

in eh said indenture, as the Buffalo Creek Reservation,

containing by estimation forty-nine thousand nine

hundred and twenty acres of land, the Cattaraugus

Reservation containing by estimation twenty-one

thousand six hundred and eighty acres of land, the

Allegany Reservation, containing by estimation thirty

thousand four hundred and sixty-nine acres of land, and

eight hundred acres of land; a duplicate of which

indenture was annexed to a treaty of the same date made

between the United States of America and the chiefs,

headmen, and warriors of the several tribes of New York

Indians assembled in council; which treaty was amended

AAI6

and proclaimed by the President of the United States on

the fourth of April one thousand eight hundred and

forty, as having been duly ratified; as by the said

indenture, treaty and proclamation more fully appear.

‘‘And whereas divers questions and differences having

arisen between the chiefs and headmen of the Seneca

nation of Indians or some of them, and the said Thomas

Ludlow Ogden and Joseph Fellows in relation to the said

indenture, and the rights of the parties thereto, and the

provisions contained in the said indenture being still

unexecuted, the said parties have mutually agreed to

settle, compromise and finally terminate all such

questions and differences on the terms and conditions

hereinafter specified.

“NOW THEREFORE IT IS HEREBY MUTUALLY

DECLARED, AND AGREED, BY AND BETWEEN

THE SAID PARTIES AS FOLLOWS.

“ARTICLE FIRST. The said Thomas Ludlow Ogden,

and Joseph Fellows in consideration of the release and

agreements hereinafter contained, on the part of the said

Seneca nation do on their part consent covenant and

agree that they the said nation (the said indenture

notwithstanding) shall and may continue in_ the

occupation and enjoyment of the whole of the said two

several tracts of land, called the Cattaraugus

Reservation, and the Allegany Reservation with the

same right and title in all things, as they had and

possessed therein immediately before the date of the said

indenture, saving and reserving to the said Thomas

Ludlow Ogden, and Joseph Fellows the right of pre-

emption, and all other the right and title which they then

had or held in or to the said tracts of land.

AAI7

“ARTICLE SECOND. The chiefs and headmen of the

Seneca nation of Indians in consideration of the

foregoing, and of the agreement next hereinafter

contained, do on their part grant, release and confirm

unto the said Thomas Ludlow Ogden, and Joseph

Fellows, and the their heirs and assigns, in joint tenancy,

the whole of the said two tracts of land severally called

the Buffalo Creek Reservation, and the Tonnewanda

Reservation, and all the right and interest therein of the

said nation.

“ARTICLE THIRD. It is mutually agreed, between

the parties hereto that in lieu of the sum expressed in

the said indenture, as the consideration of the sale, and

release of the said four tracts of land, there shall be paid

to the said nation a just consideration sum, for the

release of the two tracts, hereby confirmed to the said

Ogden and Fellows, to be estimated and ascertained as

follows.

“The present value of the Indian title to the whole of

the said four tracts of land including the improvements

thereon, shall for all the purposes of this present

compact, be deemed and taken to be two hundred and

two thousand dollars, of which sum one hundred

thousand dollars shall be deemed to be the value of such

title in and to all the lands within the said four tracts

exclusive of the improvements thereon, and one hundred

ana two thousand dollars to be the value of all the

improvements within the said four tracts, and of the said

sum of one hundred thousand dollars the said Ogden and

Fellows shall pay to the Seneca nation such proportion

as the value of all the lands within the said two tracts

called the Buffalo Creek, and Tonnewanda Reservations

shall bear to the value of all the lands within all the said

four tracts—and of the said sum of one hundred and two

AAI8

thousand dollars, the said Ogden and Fellows shall pay

such proportion as the value of the improvements on the

same two tracts, shall bear to the value of the

improvements on all the said four tracts.

“ARTICLE FOURTH. The amount of the

consideration monies to be paid in pursuance of the last

preceding article, shall be determined by the judgment

and award of arbitrators, one of whom shall be named by

the Secretary of the War Department of the United

States, and one by the said Ogden and Fellows, which

arbitrators in order to such judgment and award, and to

the performance of the other duties hereby imposed on

them, may employ suitable surveyors to explore examine

and report on the value of the said lands and

improvements, and also to ascertain the contents of each

of the said four tracts, which contents shall govern the

arbitrators as to quantity in determining the amount of

the said consideration money.

“The same arbitrators shall also award and determine

the amount to be paid to each individual Indian out of

the sum which on the principles above stated, they shall

ascertain and award to be the proportionate value of the

improvements on the said two tracts called the Buffalo

Creek Reservation and the Tonnewanda Reservation, and

in case the said arbitrators shall disagree as to any of

the matters hereby submitted to them, they may choose

an umpire whose decision thereon shall be final and

conclusive, and the said arbitrators shall make a report

in writing of their proceedings in duplicate, such reports

to be acknowledged or proved according to the laws of

the State of New York, in order to their being recorded,

one of such reports to be filed in the office of the

Secretary of the Department of War, and the other

thereof to be delivered to the said Thomas L. Ogden and

Joseph Fellows.

AAI9

“ARTICLE FIFTH. It is agreed, that the possession

of the two parts hereby confirmed, to the said Ogden and

Fellows, shall be surrendered and delivered up to them,

as follows, viz: The forest or unimproved lands on the

said tracts, within one month after the report of the said

arbitrators shall be filed, in the office of the Department

of War, and the improved lands within two years after

the said report shall have been so filed: Provided always

that the amount to be so ascertained and awarded, as

the proportionate value of the said improvements shall

on the surrender thereof be paid to the President of the

United States, to be distributed among the owners of the

said improvements according to the determination and

award of the said arbitrators, in this behalf, and provided

further that the consideration for the release and

conveyance of the said lands shall at the time of the

surrender thereof be paid or secured to the satisfaction

of the said Secretary of the War Department, the income

of which is to be paid to the said Seneca Indians

annually.

‘But any Indian having improvements may surrender

the same, and the land occupied by him and his family at

any time prior to the expiration of the said two years,

upon the amount awarded to him for such improvements

being paid to the President of the United States, or any

agent designated by him for that purpose by the said

Ogden and Fellows, which amount shall be paid over to

the Indian entitled to the same, under the direction of

the War Department.

“ARTICLE SIXTH. It is hereby agreed and declared

to be the understanding and intent of the parties hereto,

that such of the said Seneca nation, as shall remove from

the State of New York, under the provisions of any

treaty, made or to be made, between the United States

AA20

and the said Indians, shall be entitled in proportion to

their relative numbers to the funds of the Seneca nation,

and that the interest and income of such their share and

proportion of the said funds, including the consideration

money to be paid to the said nation in pursuance of this

Indenture, and of all annuities belonging to the said

Nation shall be paid to the said Indians so removing at

their new homes, and whenever the said tracts called the

Allegheny and the Cattaraugus Reservations, or any part

thereof shall be sold and conveyed by the Indians

remaining in the State of New York, the Indians so

removing shall be entitled to share in the proceeds of

said sales in the like proportion. And it is further agreed

and declared, that such Indians owning improvements in

the Cattaraugus and Alleghany tracts as may so remove

from the State of New York, shall be entitled on such

removal, and on surrendering their improvements to the

Seneca nation, for the benefit of the nation to receive the

like compensation for the same, according to their

relative values, as in the third and fourth articles of this

treaty are stipulated to be paid, to the owners of

improvements in the Buffalo Creek and Tonnewanda

Tracts, on surrendering their improvements; which

compensations may be advanced by the President of the

United States, out of any funds in the hands of the

Government of the United States, belonging to the

Seneca nation, and the value of these improvements shall

be ascertained and reported by the Arbitrators, to be

appointed in pursuance of the fourth article.

“ARTICLE SEVENTH. This Indenture is to be

deemed to be in lieu of, and as a substitute for the above

recited Indenture made and dated the fifteenth day of

January, one thousand eight hundred and thirty eight, so

far as the provisions of the two instruments may be

inconsistent, or contradictory, and the said Indenture so

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far as the same may be inconsistent with the provisions

of this compact, is to be regarded and is hereby declared

to be rescinded and released.

“ARTICLE EIGHT. All the expenses attending the

execution of this Indenture and compact including those

of the arbitration and surveys hereinbefore referred to,

and also those of holding the treaty now in negotiation

between the United States and the said Seneca Nation,

except so far as may be provided for by the United

States, shall be advanced and paid by the said Ogden

and Fellows.

ARTICLE NINTH. The parties to this compact

mutually agree to solicit the influence of the Government

of the United States to protect such of the lands of the

Seneca Indians, within the State of New York, as may

from time to time remain in their possession from all

taxes, and assessments for roads, highways, or any other

purpose until such lands shall be sold and conveyed by

the said Indians, and the possession thereof shall have

been relinquished by them.

“IN WITNESS WHEREOF, the parties to these

presents have hereunto, and to three other instruments

of the same tenor and date, one to remain with the

United States, one to remain with the State of

Massachusetts, one to remain with the Seneca Nation of

Indians, and one to remain with the said Thomas Ludlow

Ogden and Joseph Fellows, interchangeably set their

hands and seals the day and year first above written.”

THEREFORE taking into consideration the premises

it is agreed and stipulated by and between the United

States of America and the Seneca nation of Indians, as

follows, to wit:

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First, The United States of America consent to the

several articles and stipulations contained in the last

recited Indenture between the said nation, and the said

Thomas Ludlow Ogden and Joseph Fellows, above set

forth.

Second, The United States further consent and agree

that any number of the said nation, who shall remove

from the State of New York, under the provisions of the

above mentioned Treaty proclaimed as aforesaid, on the

fourth day of April one thousand eight hundred and

forty, shall be entitled in proportion to their relative

numbers to all the benefits of the said Treaty.

Third, The United States of America further consent

and agree, that the tenth article of said Treaty

proclaimed as aforesaid on the fourth day of April one

thousand eight hundred and forty, be deemed, and

considered as modified, in conformity with the provisions

of the Indenture hereinabove set forth, so far as that the

United States will receive and pay the sum stipulated to

be paid as the consideration money of the improvements

therein specified, and will receive hold and apply the sum

to be paid, or the securities to be given for the lands

therein mentioned, as provided for in such Indenture.

In testimony whereof the undersigned Ambrose

Spencer Commissioner on the part of the United States

of America, and the undersigned chiefs and headmen of

the Seneca nation of Indians, have to two parts of this

treaty, one thereof to remain with the United States, and

the other thereof with the Seneca nation of Indians, set

their hands and affixed their seals the day and year first

above mentioned.

Ambrose Spencer.

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Tit-ho-yah, or William Jones Samuel Goudon,

Saul Lagure, Tunis Halftown,

Gau-geh-gruh-doh, or George Jimison, Hau-sa-nea-nes, or White Seneca,

N.T.Strong, Gah-nang-ga-eot, or Young Chief,

Hau-neh-hoys-soh, or Blue Eyes, Thomas Jimeson,

Jabez Stevenson, Moses Stevenson,

William Krouse, Johah Armstrong,

Samuel Wilson, or Ni-ge-jos-a, Joseph Silverheels,

William Krouse, Da-o-as-sah-au, or Jo. Hunlock,

Thompson S. Harris, George Fox,

Sah-go-en-toh, or Morris Halftown, Yaw-sau-ge, or Peter Johnson,

Ten-wan-ne-us, or Governor Black Snake, Noh-sok-dah, or Jim Jonas,

Doa-ne-pho-gah, or Little Johnson, Dih-no-se-du, or Jacob Shongo,

Joh-nesh-ha-dih, or James Stevenson, John Seneca, or Jo-on-da-goh,

Ho-wah-tan-eh-goh, or John Pierce, Ho-no-yea-os, or Jacob Bennett,

Da-gon-de, or William Patterson, George Turkey,

Daniel Fau Guns, David Snow,

Goat-hau-oh, or Billy Shanks, John Bark

Daniel Fau Guns, George Killbuck

Goat-hau-oh, or Billy Shanks, George Dennis,

James Pierce, John Kennedy, sen.,

Gi-eut-twa=geh, or Robert Watt, Abram John,

Seneca White, Job Pierce,

Gesh-u-aw, or James Shongo,

Jarvis Spraing,

Ti-at-tah-co, or Aman Dextador,

Saw-da-ne, or George Deer,

Ga-na-waw, or John Cook,

Jaw-ne-es, or John Dickey,

Moris B. Pierce, George Big Deer,

So-gooh-quas, or John Tallchief. Nah-joh-gau-eh, or Tall Peter,

Isaac Halftown, John Kennedy, jr.

Signed sealed and delivered in the presence of—.

A. Dixon, Commissioner on the part O. H. Marshall,

of New York. Elam R. Jewett,

Benj. Ferris, Cortland B. Stebbins,

Orlando Allen, Joseph S. Wasson.

Asher Wright,

(To the Indian names are subjoined a mark and seal.)