# Opposition Brief — Patterson v. New York

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0400%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 1092

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0400%3A2. Public record. Not legal advice.