Opposition Brief — Patterson v. New York

7

importantly, the decision below is fully consistent with the

relevant precedents of this Court. It is well settled that

“[a}bsent express federal law to the contrary, Indians going

beyond reservation boundaries have generally been held

subject to nondiscriminatory state law otherwise applicable

to all citizens of the State.” Mescalero Apache Tribe v. Jones,

411 U.S. 145, 148-49 (1973); see also Oklahoma Tax

Commission v. Chickasaw Nation, 515 U.S. 450, 465 (1995);

Oklahoma Tax Commission v. Citizen Band Potawatomi

Indian Tribe, 498 U.S. 505, 511 (1991). Federal Power

Commission makes clear that the Treaty of Canandaigua

provides the Tuscaroras with no rights that would allow them

to evade routine application of New York’s fishing laws.

Accordingly, the petition for a writ of certiorari should be

denied. m

I. The New York Court of Appeals Did Not Decide Any

Federal Question In A Way That Conflicts With The

Decisions of This Court.

A. Federal Power Commission v. Tuscarora Indian

Nation Disposes of Petitioner’s Claim.

Not only is there no conflict between the decision below

and the precedents of this Court, but as the New York Court

of Appeals properly recognized, this Court’s decision in

Federal Power Commission disposes of petitioner's claim.

In Federal Power Commission, the Tuscarora Indian Nation

challenged the taking of a portion of its reservation near the

Niagara River for a hydroelectric plant reservoir. 362 U.S.

at 100. The Tuscaroras argued, among other things, that the

United States had guaranteed them the “free use and

enjoyment” of their lands in the Treaty of Canandaigua, and

8

noted that they were not a party to the sale of the Seneca

lands in the Treaty of Big Tree. See 362 U.S. at 121 n.18;

Brief of Respondent Tuscarora Indian Nation at 4, Federal

Power Commission v. Tuscarora Indian Nation, 362 U.S. 99

(1960) (No. 63).

After reviewing the history of the Tuscaroras and their

New York lands, this Court concluded that the Tuscaroras

retained no rights under the Treaty of Canandaigua:

By the Treaty of Canandaigua ... it was

recognized that the Senecas alone had possessory

rights to the western New York area here involved

and, as a result of that treaty, a large tract of

western New York lands, including the lands now

owned by the Tuscaroras, was secured to the

Senecas. .. . And at the Treaty of Big Tree... ,

{Robert} Morris, with the approbation of the

United States, purchased the Senecas’ rights of

occupancy in the lands here in question for the

Holland Land Company. Thus, the lands in

question were entirely freed from the effects of

all then existing treaties with the Indians, and the

Tuscaroras’ title to their present lands derives. . .

from the Holland Land Company ... and has

never since been subject to any treaty between the

United States and the Tuscaroras.

362 U.S. at 122-23 n.18 (emphasis added).’

— s—

3. While petitioner characterizes this language as “dictum,”

Pet. at 11 n.4, this Court indicated otherwise. See Federal Power

Comm'n, 362 U.S. at 123 (“we must hold ... that the lands in

question are not subject to any treaty between the United States and

the Tuscaroras”) (emphasis added). ;

9

The Court of Appeals properly concluded that under

Federal Power Commission, petitioner has no treaty right to

engage in off-reservation fishing on former Seneca lands.

As this Court explained, and the court below recounted, the

Tuscaroras inhabited Seneca land as “guests or tenants at

will or by sufferance,” and the Treaty of Canandaigua

provided the Tuscaroras, who were not even mentioned, with

no further rights to those lands. Pet. App. at 9a (citing Federal

Power Commission, 362 U.S. at 121 n.18). The Tuscaroras’

rights in the Seneca lands were wholly contingent on the

Senecas’ continued ownership and thus were terminated in

1797 when the Senecas sold nearly all their land, including

the land where petitioner was ticketed, in the Treaty of Big

Tree. Pet. App. at 8a.

Petitioner's efforts to distinguish Federal Power

Commission, see Pet. at 11 n.4, are unpersuasive. That the

state parkland where petitioner was ticketed was not directly

at issue in Federal Power Commission is irrelevant because

that parkland was also part of the tract that the Senecas sold

at Big Tree. That Federal Power Commission did not

specifically involve fishing rights, see id., is also irrelevant

in light of this Court’s holding that the Treaty of Big Tree

“entirely freed” the former Seneca lands — including the

parklar.d where petitioner was ticketed — from all “effects”

of the Treaty of Canandaigua, including the “free use and

enjoyment” guarantee on which petitioner relies.

Petitioner’s remaining efforts to discredit the decision

below also lack merit. He claims that the Tuscaroras’ free

use and enjoyment of the Seneca lands could not be

“extinguished by implication,” or through a land sale by the

Senecas alone. See Pet. at 20-25. But as explained above,

Federal Power Commission holds precisely the contrary: that

10

the Treaty of Big Treaty “entirely freed” the subject lands from

the effects of all existing Indian treaties. Petitioner also contends

that the Senecas’ reservation of fishing and hunting rights in

the Treaty of Big Tree should also inure to the Tuscaroras’

benefit. See Pet. at 24 n.7. This issue was not raised or decided

below and thus should not be considered by the Court.

See, e.g., Yee v. City of Escondido, 503 U.S. 519, 532-33 (1992).

In any event, those reserved rights were limited to the Senecas

alone. See Treaty of September 15, 1797, 7 Stat. 601, 602.

B. The Decision Below Does Not Conflict With Any

Decisions of This Court.

While petitioner claims that the New York Court of Appeals

failed to follow relevant decisions of this Court, no such conflict

exists. Petitioner first claims that the court below departed from

this Court’s decision in Minnesota v. Mille Lacs Band of

Chippewa Indians, 526 U.S. 172 (1999), and the other cases

regarding the distinction between usufructuary and possessory

rights held by Indian tribes. Pet. at 15. The fishing rights at

issue in Mille Lacs were independent of land ownership because

the Indians expressly retained them from a tribal land cession,

and the rights were therefore not “tied to a reservation.”

See Mille Lacs, 526 U.S. at 177, 201-02.* Here, in contrast,

4. Several of the other cases relied upon by petitioner,

see Pei. at 15-16, also involved the express retention of fishing rights.

See Washington v. Washington State Commercial Passenger Fishing

Vessel Ass'n, 443 U.S. 658, 662, 667-68 (1979), and United States v.

Winans, 198 U.S. 371, 378 (1905). As for Menominee Tribe of Indians

v. United States, 391 U.S. 404 (1968), see Pet. at 20-21, that case is

distinguishable because this Court found that treaty hunting and

fishing rights survived a termination act (rather than a later treaty)

on the ground that a contemporaneous congressional enactment

reflected an intent to preserve them. See 391 U.S. 1% 110-11.

petitioner claims a fishing right that is not independent of

land ownership but instead is tied to a reservation: he asserts

that the fishing right is a component of the “free use and

enjoyment” of the Seneca reservation described in the Treaty

of Canandaigua. Cf. United States v. Dion, 476 U.S. 734,

738 (1986) (treaty reservation of lands to Indians includes

the exclusive right to hunt and fish on the reserved lands).

Unlike the rights in Mille Lacs, fishing rights that are

tied to a reservation can be terminated by a sale of the

reservation that does not mention them. In Oregon Dep't of

Fish and Wildlife v. Klamath Indian Tribe, 473 U.S. 753,

766-68 (1985), the Court held that the Klamath Tribe’s

unequivocal conveyance of all its claim, right, title, and

interest in and to a portion of the Tribe’s reservation ceded

its hunting and fishing rights in that portion, even though

these rights were not mentioned, because they did not exist

independently of the reservation. And, as discussed above,

this Court held in Federal Power Commission that the

Senecas’ sale of their lands in the Treaty of Big Tree “entirely

freed” them from the effects of ali existing Indian treaties so

that the Tuscaroras had no right of free use and enjoyment of

the former Seneca lands. See Federal Power Commission,

362 U.S. at 123 n.18. These cases, rather than Mille Lacs,

control here.

Second, petitioner asserts that the New York Court of

Appeals ignored several of this Court’s canons of treaty

construction. The construction given the Treaty of

Canandaigua by the court below, however, follows directly

from Federal Power Commission, and thus surely does not

conflict with this Court’s precedent. It also comports with

the relevant canons. Petitioner primarily complains that in

rejecting his claim to continued “free use and enjoyment” of

12

the former Seneca lands, the court below rendered article 1V

of the Treaty surplusage. Pet. at 17-18. But article IV does

not create any Tuscarora rights beyond those that are arguably

conferred by article II]; it simply summarizes the

consideration provided by the United States in articles II and

IIl of the Treaty in exchange for the tribes’ cession of all

other Indian lands in article 1V. See Treaty of November 11,

1794, 7 Stat. at 45.

Petitioner also argues that Indian treaties should never

be construed to the tribes’ detriment. See Pet. at 18-19. But

that principle, of course, does not require a result favorable

to tribes, regardless of a treaty’s language. As this Court has

held, “Indian treaties cannot be re-written or expanded

beyond their clear terms to remedy a claimed injustice.”

Choctaw Nation v. United States, 318 U.S. 423, 432 (1943).

See also South Carolina v. Catawba Indian Tribe, Inc., 476

U.S. 498, 506 (1986) (“The canon of construction regarding

the resolution of ambiguities in favor of Indians ... does

not permit reliance on ambiguities that do not exist.”),;

Klamath Indian Tribe, 473-U.S. at 774 (“courts cannot ignore

plain language that, viewed in historical context and given a

‘fair appraisal,’ ... clearly runs counter to a tribe’s later

claims”). ,

Il. This Court’s Recent Decision In City of Sherrill v.

Oneida Indian Nation Provides An Alternate Ground

For Affirmance.

Even if petitioner could identify some conflict between

the decision below and the decisions of this Court or any

federal or state appellate court, this case provides a poor

vehicle for addressing petitioner’s claims about the scope of

the Treaty of Canandaigua. In its recent decision in City of

Sherrill v. Oneida Indian Nation, 125 S. Ct. 1478 (2005),

13

this Court held that the Oneida Indian Nation could not

unilaterally assert sovereignty over land reacquired in its

former reservation. It relied on the Indians’ extreme delay in

asserting the claim, the longstanding exercise of state

regulatory authority over the area, and the non-Indian

character of the area’s population. See id. at 1483; see also

Yankton Sioux Tribe v. United States, 272 U.S. 351, 357

(1926) (impossible to rescind cession and restore lands to

tribal members where lands were occupied by innumerable

innocent purchasers); Felix v. Patrick, 145 U.S. 317, 334

(1892) (formerly wild land was developed by purchasers in

reliance on the cession).

As the State of New York argued in the court below,

these same considerations weigh strongly against construing

the Treaty of Canandaigua to confer upon the Tuscaroras a

continuing right of “free use and enjoyment” in the former

Seneca lands.° Such a result would contradict the

understanding that has prevailed for more than two centuries

that the Treaty of Big Tree “extinguished all the Indian rights

in the land referred to.” Massachusetts v. New York, 271 U.S.

65, 95 (1926) (citing a resolution of the Massachusetts -

Legislature passed March 8, 1804); see also New York ex

rel. Kennedy v. Becker, 241 U.S. 556, 561-62 (1916) (“[t}he

lands — which were soon resold — thus passed by the

{Big Tree] conveyance into private ownership and were

subject to the jurisdiction and sovereignty of the State of

New York”). The Tuscaroras have failed to press this claim

—

5. New York’s brief in the Court of Appeals, submitted before

this Court decided Sherrill, argued that the Tuscaroras’ inordinate

delay in asserting their treaty rights and the vast changes in the

character of the region since 1797 barred petitioner’s claim. See Brief

of Respondent State of New York at 25-26, People v. Patterson,

5 N.Y.3d 91 (2005) (No. 91).

14

in the intervening 200 years, during which time the

wilderness ceded by the Senecas in 1797 has been heavily

developed by generations of owners in reliance on the

understanding that any Indian claim to the region was

extinguished during the administration of President John

Adams. A judicial finding that Tuscarora rights to the former

Seneca lands were not extinguished by the Treaty of Big Tree

“would seriously disrupt the justifiable expectations of the

people living in the area.” Hagen v. Utah, 510 U.S. 399, 421

(1994).

Thus, even if this Court were to revisit the construction

of the Treaty of Canandaigua set forth in Federal Power

Commission, Sherrill provides alternate grounds for

affirming the decision below. Accordingly, this Court should

deny the petition for a writ of certiorari.

15

CONCLUSION

The petition for a writ of certiorari should be denied.

Cartun J. HALLIGAN

Solicitor General and

Counsel of Record

DANIEL SMIRLOCK

Deputy Solicitor General

Peter H. ScuiFF

Senior Counsel

Respectfully submitted,

Eviot Sprrzer

Attorney General of the

State of New York

MarttHew J. Murpuy Ill

Niagara County District Attorney

Anprew D. BING

Special Assistant District Attorney

Assistant Solicitor General

New York State Office of the

Attorney General

120 Broadway

New York, New York 10271

(212) 416-8016

THoMAS H. Branpt

Assistant District Attorney

Niagara County Courthouse

Lockport, New York 14094

(716) 439-7085

Co-Counsel for Respondent

State of New York

198093 g

COUNSEL PRESS

(800) 274-3321 « (800) 359-6859

No.

IN THE

(PPD oF tisk.

Supreme Court of the United States

+

NEIL PATTERSON, JR..

Petitioner,

v.

NEW YORK,

Respondent

—q——__—_——

ON PETITION FOR A WRIT

OF CERTIORARI TO THE

NEW YORK COURT OF

APPEALS

+ . a

SUPPLEMENTAL APPENDIX TO PETITION

FOR A WRIT OF CERTIORARI

—_— o—___.

Thomas P. Schlosser*

Rob Roy Smith

MORISSET, SCHLOSSER, JOZWIAK

& MCGAW

801 Second Ave., Ste. L115

Seattle, WA 98104-1509

(206) 386-5200

*('ounsel of Record for Petitioner

4la

APPENDIX F — NIAGARA COUNTY COURT

DECISION AND ORDER

STATE OF NEW YORK NIAGARA COUNTY

COUNTY OF NIAGARA COURT

PEOPLE OF THE STATE

OF NEW YORK,

VS.

APPEAL TO COUNTY

COURT FROM THE

TOWN OF WILSON

COURT Index No.

16086

NEIL PATTERSON, Jr.

Defendant.

DECISION and ORDER

SPERRAZZA, J.

The defendand appellant is a member of the

Tuscarora Indian Nation, which is one of the Six Nations

of the Iroquois Confederacy or Haudenosaunee. On

February 9, 2003 the defendant was ice fishing in Wilson

Tuscarora State Park where he was observed by

42a

Appendix F

Environmental Conservation Officer Richard Lang.

Officer Lang noticed that the defendant did not have an

identifying tag on his ice fishing rig, or tip-up. The lack of

an identifying tag on a tip-up is a violation of 6

N.Y.C.R.R. § 10.4-7. Officer Lang issued a citation,

returnable in the Wilson Town Court. The defendant pled

not guilty and requested a trial.

At the trial of the matter, Officer Lang, who

prosecuted the case, testified as to his observations and the

lack of an identifying tag on the defendant’s tip-up.

The defendant responded that it was his belief that

the State does not have jurisdiction over aboriginal

territory and that State Conservation Law may be applied

to Native Americans off their reservation only when the

law’s purpose is “preserving conservation of resource.”

Officer Lang responded that when off the

reservation, Native Americans must follow the rules

enacted. He cited a memorandum of his department which

states that Native Americans are to comply with all laws

and regulations regarding seasons, bag limits and size

limits. Lang further argued that the subject regulation has

as its purpose the conservation of resource.

The defendant supplied to the court a case decision

and two treatise citations, which are not contained in the

court record, reportedly relating to the limits imposed upon

the state’s power to regulate Native American hunting and

43a

Appendix F

fishing rights. The defendant stated that his actions were

guaranteed by the “Treaty of Canandaigua in 1794”

(hereafter “Treaty of 1794”). Lang responded that the

regulation applies to all individuals within the state.

The court ruled that the defendant had violated the

statute and fined him $25.00 The defendant has appealed

the judgment of the lower court.

In his Affidavit of Errors filed pursuant to Criminal

Procedure Law § 460.10, the defendant cites two defects

in the ruling of the court which are the subject of his

appeal. First, the defendant argues that the court did not

correctly apply the doctrine of “conservation necessity”

which limits state enforcement of conservation regulations

against Native Americans exercising treaty hunting and

fishing rights. The defendant also contends that the

guidelines put forth by the Department of Environmental

Conservation, Division of Law Enforcement, which state

that Native Americans must comply with “legally

established seasons, bag limits and size limits”, meant that

it was the policy of the Department to not apply the

regulation requiring an identifying tag on tip-ups to Native

Americans.

In his brief on appeal, the defendant argues that he

was exercising rights guaranteed by The Treaty of 1794 to

fish at Wilson Tuscarora State Park. As such, any state

regulation which limits his fishing rights would only be

lawful, as applied to him, if the People could show that the

44a

Appendix F

regulation itself was reasonable and necessary to

conservation and that its application to Native Americans

was also necessary for conservation. Further, the

defendant agues that it is the People’s burden to show the

necessity of the regulation in question. The defendant

cites a number of cases supporting this position (Tulee v.

State of Washington, 668 U.S. 681; Puyallup Tribe v.

Department of Game of Washington, 391 U.S. 392; United

States v. Washington, 384 F. Supp 312, aff'd 520 F.2nd

676; Antoine v. Washington, 420 U.S. 194). The

defendant contends that the failure of the court to apply

this rule of law was a failure of constitutional dimensions

in that it violated the Supremacy Clause of the United

States Constitution.

Upon review of the cited cases, the Court agrees

that the conservation necessity doctrine, if applicable in

this case, would place upon the People at trial the burden

of showing that the regulation passed the standard set by

the Supreme Court. However, for this doctrine to be

applicable in this case, the defendant, who was not on a

reservation, must have been exercising rights guaranteed

to him by treaty. The initial burden therefore is upon the

defendant to establish that he is a Native American

exercising rights established under a treaty.

In his brief, the defendant argues that the issue is

one of subject matter jurisdiction. However, the Wilson

Town Court does have jurisdiction to hear criminal cases

regarding violations of the state environmental

45a

Appendix F

conservation regulations against any person, including

Native Americans. Rather, the issue raised by the

defendant is in the.nature of a defense under Penal Law

§ 35.05(1) in that the defendant is conceding that he did

the act but is asserting that his conduct was authorized by

law or a judicial decree, i.c. the law of conservation

necessity.

The Court has framed this question in the context of

a defense raised by the defendant pursuant to Penal Law

§ 35.05-1 and the Court is aware of the obligation placed

upon the People by Penal Law § 25.00 to disprove a

defense beyond a reasonable doubt. To establish a defense

to which the People must respond, the defendant must at

least present sufficient evidence from which it would be

reasonable to conclude that the defense may apply. The

defendant here has fallen short of that requirement.

The defendant stated at trial the he was exercising

rights pursuant to the Treaty of 1794. However, according

to the record on appeal, the defendant did not present the

Treaty to the court, nor did he present any evidence that

the area where he was fishing was included within the

Treaty. This Court has examined the Treaty of 1794 and,

without a map or some historical context not contained in

the trial record, could not make a determination from the

face of the Treaty that the Wilson Tuscarora State Park

was land within the area delineated by the Treaty. For

example, the Treaty of 1794 gives the property description

for the relevant land in Article II] as “The land of the

46a

Appendix F

Seneca nation is bounded as follows: beginning on Lake

Ontario, at the northwest corner of the land they sold to

Oliver Phelps, the land runs westerly along the lake, as far

as O-yon-won-yeh Creek, at Johnson's landing place . . .

.” It is certainly not apparent to the Court, from this

description, that this land includes present day Wilson

Tuscarora State Park.

The defendant argues that his treaty fishing rights

arise from the language in Article Il as follows: “Now 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, nor any of the Six

Nations, or of their Indian friends residing thereon and

united with them, in the free use and enjoyment thereof;

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

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

purchase.”

The defendant claims rights under this Treaty but

his tribe is not mentioned by name and again, it takes some

historical knowledge, outside of the proof presented by the

defendant, to recognize that the Tuscarora Tribe was one

of the Six Nations of the Iroquois and tliat the land in

question is that mentioned in Article III of the Treaty of

1794.

The area where he was fishing is obviously no

longer tribal land so there must have been some

47a

Appendix F

intervening transaction which caused this land to be the

public property of the State of New York. The defendant

presented no proof to the court as to the nature of that

transaction or that the right to “free use and enjoyment” of

the land survived the transaction.

The defendant presented no proof that his tribe

resided in the area at the time of the execution of the treaty

or that it was their custom and practice at the time to fish

in the area that is presently Wilson Tuscarora State Park.

He presented no evidence that his tribe had aboriginal

history or rights in the area.

Were the defendant’s statements made in this trial

deemed sufficient to raise the defense that his otherwise

unlawful actions were authorized by law or judicial

decree, then any person charged with a violation of such a

regulation could appear in court, claim membership in a

tribe, announce the existence of a treaty which purportedly

granted him rights, and thereby place a burden of proof

upon the People. Based upon the unsupported claim of the

defendant, the People would have to prove, beyond a

reasonable doubt, that the defendant was not a member of

the tribe, or that the treaty did not grant the rights claimed,

or that the tribe had not historically fished at that location,

or that the treaty did not apply to the land in question. The

unfairness of such a position is obvious, for which reason

the Court finds it proper that the defendant raising such a

defense present reasonable evidence in support of his

position.

48a

Appendix F

On the record below, the Court does not find that

the defendant put forward sufficient proof from which it

could be reasonably concluded that he was exercising

rights guaranteed to his tribe under a treaty. Therefore, the

defense was not established and the State was not placed

under the burden of proving that the regulation was

necessary for conservation purposes.

This Court would reach a different conclusion if

there was legal precedent dealing with the Tuscarora Tribe

which established the existence of their treaty fishing

rights at the location under the Treaty of 1794, or some

other treaty. Then, it would be sufficient for the defendant

to appear in court and cite his status as a Tuscarora.

However, the burden was on the defendant, in this case of

first impression, to present some proof of the existence of

such rights.

Upon this line of reasoning, the Court finds that the

defendant, who admitted the act in question and did not

raise a viable defen... was properly convicted of the

offense charged.

Were this Court to find that the defendant had

sufficiently raised the defense, we would nonetheless find

that the People had disputed it by the contention of the

conservation officer that the regulation applies to the

defendant off the reservation. Then the question before

the trial court would have been- Did the defendant have

usufructory fishing rights pursuant to the Treaty of 1794?

49a

Appendix F

It appears that the lower court answered this

question in the negative. In the court’s return, in response

to the Affidavit of Errors, the court stated that the

conservation necessity doctrine raised issues which the

court felt were not applicable to the case and that the

defendant must comply with the charged regulation, as

well as other rules and regulations, while off reservation

land.

This Court finds that the lower court’s ruling was

correct as a matter of law. In reaching this determination,

the Court has examined several cases which have dealt

with the Treaty of 1794 and its background. Some of

these cases set out an extensive exposition, based upon the

factual records made before those courts, of the history of

the Native American population of Western New York

from earliest times up to and beyond the time of the Treaty

(see, Seneca Nation of Indians v. State of New York, et al,

206 F. Supp. 2™ 408; People ex rel. Kennedy v. Becker,

215 N.Y. 2d 881, aff'd 36 S. Ct. 705; Tuscarora Nation of

Indians v. Power Authority of the State of New York, 164

F. Supp. 107; Federal Power Commission v. Tuscarora

Indian Nation,326 U.S. 99, 80 S.Ct. 543, 4 L. Ed 2™ 584).

The Court finds that it must follow the reasoning

and ruling of the Supreme Court in Federal Power

Commission v. Tuscarora Indian Nation, supra. The

Court noted there that the Tuscarora were recent

inhabitants of the area at the time of the treaty, having

moved from North Carolina within the previous fifty

50a

Appendix F

years. They had no aboriginal interest in the area but were

tenants at sufferance of the Seneca. The Court interpreted

the Treaty as recognizing that the Seneca alone had title to

the Western New York area and that the land was sold by

the Seneca to Robert Morris pursuant to the Treaty of Big

Tree of 1797. The Court stated that, by the terms of this

Treaty and sale, the “lands were entirely freed from the

effects of all then existing treaties with the Indians . . .”

(326 U. S. at p. 121, n. 18). The Court in that case was not

dealing with Wilson Tuscarora State Park but with nearby

lands actually owned and held in fee by the Tuscarora,

which the government wished to take for a power project.

The Court held that the lands in question are not subject to -~

any treaty between the United States and the Tuscarora (at

p. 123). From this ruling, it naturally flows that the land

which is now Wilson Tuscarora State Park would also be

held free from any treaty with the Tuscarora. In Tuscarora

Nation Indians v. Power Authority of the “‘ate of New

York, 164 F. Supp. 107, the District Court stated that “the

original right of Indian occupancy and the pre-emptive

rights in the lands now occupied by the plaintiff were

actually extinguished by the Treaty of ‘Big Tree.”” (at p.

112).

The Court is aware that the rule of treaty

construction is that any ambiguities should be resolved in

favor of the Native Americans and that the treaty should

be interpreted in the way in which it would have been

understood by the signatories at the time (Oregon Dept. of

Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753,

Sla

Appendix F

766, 105 S.Ct. 3420, 3428, 87 L.Ed.2d 542 (1985); People

ex rel. Kennedy v. Becker, 241 U.S. 556, 36 S. Ct. 705, 60

L.. Ed. 1166). This rule developed so that the “more

sophisticated” party would not take advantage of the

Native Americans in their dealings. In this case, some of

the historical reading indicates that the Indians, led by Red

Jacket, may have been the shrewder, more persistent

bargainers (Seneca Nation of Indians v. New York State,

206 F. Supp. 2d 408 at 483, et seq.).

It appears to this Court, in light of the historical

context, that the language of the Treaty of 1794 is clear

and unambiguous. lhe purpose of Article III of the treaty

of 1794 was to deal with the Seneca Nation and to secure

to that Nation their property rights in the area of Western

New York, in return for peace (see generally, Seneca

Nation of Indians v. State of New York, 206 F. Supp. 2d

408 at 483, et seq.). The relevant portion of the Treaty of

1794 is: “Now 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, nor any of the Six

Nations, or of their Indian friends residing thereon and

united with them, in the free use and enjoyment thereof:

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

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

purchase.”

The clear language of the treaty, read as a contract

or agreement between the parties, was that the Seneca and