The opinion of the court was delivered by: KNIGHT
This suit has been brought by the United States of America to have declared null and void Section 85 of the Act of the Legislature of the State of New York, approved February 17, 1909, and entitled "An Act in relation to Indians, constituting chapter twenty-six of the consolidated laws"; to declare null and void two leases, purporting to have been given for the mining of gypsum on the Tonawanda Reservation of Indians, in New York State.
Issue has been joined by the service of the Answers of the defendants. The plaintiff now moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and for an accounting, and the defendants move for like judgment, and a dismissal of the complaint.
A question of jurisdiction in the United States to bring this suit is raised. This is not answered at the outset of this opinion, because it is answered by the decision on the motions hereinafter considered.
No material question of fact is presented. The only question of law is whether the State of New York could legally authorize the execution of the aforesaid leases for the mining of gypsum upon the Tonawanda Reservation.
Considerable time has elapsed since the plaintiff's original motion was made. There are sufficient reasons to justify a delay in a decision.
The so-called Tonawanda Tribe of Indians was at one time a part of the Seneca Nation of Indians, one of the Six Nations constituting the Iroquois Confederacy. A detailed history of the relation of this Confederacy and the tribes constituting it has been the subject of many opinions of the courts. Prior to 1857 the Tonawanda Tribe became a separate and distinct tribe and maintained its tribal affairs and property separate and distinct from any other tribe of Indians. The Six Nations entered into certain treaties with the United States whereby the rights of the members of the separate Nations as to the lands and reservations were recognized and guaranteed to them by the United States. The Treaty entered into under date of November 11, 1794, 7 Stat. 44, stated that the United States acknowledged that the lands within the boundaries therein described were the property of the Seneca Nation and that it should "remain theirs, until they chose to sell the same to the people of the United States, who have the right to purchase." The lands constituting the so-called Tonawanda Reservation occupied by the Tonawanda Tribe of Indians, and including the lands as to which the leases aforesaid were executed, were within the lands described in that Treaty.
On or about January 15, 1838, the United States and the said Six Nations entered into a treaty which was ratified by the Senate of the United States on June 11, 1838, 7 Stat. 550. By this treaty the said Six Nations relinquished all claims to certain lands in Wisconsin which were to be acquired in exchange for certain lands in what is now the State of Kansas. Thereafter, pursuant to said treaty and the laws of the United States, the Seneca Nation agreed to convey to certain individuals certain lands in the State of New York, including among others, the Tonawanda Reservation occupied and belonging to the Tonawanda Tribe of Indians. Thereafter, the purchasers released to the Seneca Nation of Indians lands comprising the Allegany and Cattaraugus Reservations, and the Seneca Nation released to said purchasers lands comprising the Tonawanda Reservation and other lands. The Tonawanda Tribe of Indians refused to remove from its Reservation to the lands intended to be given to them for their occupancy and possession in what is now the State of Kansas. Because of such refusal, on or about November 5, 1857, 11 Stat. 735, another treaty was made between the United States and the Tonawanda Tribe of Indians, and subsequently ratified by the Senate of the United States, by the terms of which, in consideration of $256,000, the Tonawanda Tribe of Indians relinquished any claim to the lands set aside and reserved for their use in the State of Kansa and it was authorized to purchase of the individuals to whom the Tonawanda Reservation had been sold the lands of such reservation and to pay therefor at the rate of $20.00 per acre, such purchase price to be paid from the aforesaid $256,000 obtained from the rights of the Tonawanda Indians in the Kansas lands. The treaty of November 5, 1857, and the subsequent treaty of June 4, 1858, also provided that the lands thus purchased by the Tonawanda Tribe of Indians should "be taken by deed of conveyance to the Secretary of the Interior of the United States * * * in fee, to be held by him in trust for the said Tonawanda band of Indians and their exclusive use * * * until the legislature of the State of New York shall pass an act designating some persons, or public officer of that State, to take and hold said land upon a similar trust for said Indians; whereupon they shall be granted by the said Secretary to such persons or public officer." Art. 3. The title to the lands so purchased was taken in the name of the Secretary of the Interior who held title thereto in trust until February 14, 1862, on which date the lands were conveyed by deed to the Comptroller of the State of New York "in trust" for the said Tonawanda Indians. On April 16, 1860, the State of New York, through its legislature, had ratified and confirmed the treaty of November 5, 1857, and the subsequent treaty of June 4, 1858, and in the act of confirming said treaties also provided that: "The title to said lands which shall be conveyed to the comptroller by virtue of this act, shall be held by him and his successors in office, in trust for the said Tonawanda band of Indians who shall, by virtue thereof, have and hold the exclusive use, occupation and enjoyment of the said lands; * * *." Laws N.Y.1860, c. 439, § 2.
By virtue of the Treaty of 1857 the Tonawandas acquired 7,449 acres of land released to Ogden and Fellows under the Treaty of 1838 between the United States and various tribes of New York Indians.
The total coverage of the tract in suit, according to one of the leases, is 1,280 acres.
There have been and there are now valuable deposits of mineral otherwise known as gypsum or plaster rock under the lands in said reservation, and the defendant, National Gypsum Company, for a number of years last past has been mining and removing such deposit of gypsum therefrom under the terms and conditions of the aforesaid leases.
Section 85 of the Indian Law of the State of New York, approved February 17, 1909, provides that: "The attorney of such nation [Tonawanda Nation], for the benefit of such nation, may contract for the sale of any gypsum, or plaster stone upon the Tonawanda reservation, on such terms as he may deem just, * * * which contract shall be in writing, to be performed within twenty years from the making thereof." It purports to require no ratification by the Peacemakers of the Nation, but the same section specifically provides for such ratification in case of the sale of "sand, gravel and refuse stone." This statute has remained substantially the same since the adoption of Chapter 394 of the Laws of 1873, save that the contract period has been extended from three to twenty years and save that by Section 81 of the Indian Law, enacted February 3, 1927, being Chapter 16, section 2, the State Board of Charities was authorized to appoint an attorney for the Tonawanda Nation of Indians.
On or about June 1, 1921, James Kelly, district attorney for the County of Genesee, designated as attorney for the Tonawanda Tribe by virtue of Section 81 of the New York Indian Law, purporting to act under authority of Section 85, supra, executed and delivered an instrument to one Sadie E. Nobles, purporting to grant the right to prospect and explore for gypsum on a portion of the Reservation, and granting an option to mine for a period of twenty years, on the terms and conditions therein set forth. Nobles, on or about April 26, 1922, served written notice exercising such mining option. Thereafter, on or about December 4, 1922, the aforesaid lease was modified to the extent of regulating the weighting of the gypsum. The aforesaid lease, by its terms, would have expired on April 26, 1942, or twenty years from the date of the determination to exercise the aforesaid option. On or about June 21, 1936, William H. Coon, as attorney for the Tonawanda Tribe of Indians, by virtue of his appointment pursuant to Section 81 of the New York Indian Law, as amended by Chapter 16, Section 2 of the Laws of 1927, executed and delivered to the National Gypsum Company an instrument purporting to grant the right to mine, quarry, crush and remove the gypsum or plaster rock from under the lands of the Tonawanda Reservation, being the same land described in the instrument executed and delivered to said Nobles, said instrument to be in force for a period of fourteen years, two ...