The opinion of the court was delivered by: PORT
MEMORANDUM-DECISION AND ORDER
PORT, Senior District Judge.
This case tests the consequences of the failure of the State of New York to comply with the provisions of the Indian Noninter-course Act, enacted by the first Congress in 1790 and reenacted in substance by subsequent Congresses to the present date. 25 U.S.C. § 177. Familiarity with the prior opinions in the case is assumed.
In 1795, the State of New York acquired from the Oneida Indians, by an instrument variously denominated as a deed or treaty, 100,000 acres in Central New York. The counties of Oneida and Madison have acquired and now occupy undesignated but small portions of that acreage. The claim made in this case is limited to damages for the use and occupancy during the years 1968 and 1969 of those "parts of said premises [currently occupied by defendants] for buildings, roads, and other public improvements."
The issues can be summed up as follows: (1) Have the plaintiffs established that the transfer of land by the 1795 treaty to the State of New York was in violation of the Nonintercourse Act? (2) Have any of the defenses asserted by the defendants been established? (3) Are the defendants liable to the plaintiffs for damages resulting from defendants' use and occupancy of part of the subject land during 1968 and 1969? The answer to the first question is yes; to the second, no; and to the third, yes.
Although the present owners of the 100,000 acres may have acted in good faith when acquiring their property, such good faith will not render good a title otherwise not valid for failure to comply with the Nonintercourse Act.
Although it may appear harsh to condemn an apparently good-faith use as a trespass after 90 years of acquiescence by the owners, we conclude that an even older policy of Indian law compels this result.
United States v. Southern Pacific Transportation Co., 543 F.2d 676, 699 (9th Cir. 1976). Furthermore, it is incumbent upon "[great] nations, like great men, [to] keep their word." Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 142, 80 S. Ct. 543, 567, 4 L. Ed. 2d 584 (1960) (Black, J., dissenting).
The posture in which this case has been presented is reminiscent of United States v. Forness, 125 F.2d 928 (2d Cir.), cert. denied, 316 U.S. 694, 62 S. Ct. 1293, 86 L. Ed. 1764 (1942), in which the Second Circuit said:
Although there is directly before us only one lease, on which the annual rent is but $4, the question is of greater importance because the Nation, by resolution, has cancelled hundreds of similar leases.
Id. at 930. Likewise, the impact of the Oneidas' claim will reach far beyond the boundaries of the present suit. In my initial decision dismissing the claim for lack of jurisdiction, I pointed out that, "it obvious that there are, of necessity, numerous other parties occupying the balance of the 100,000 acre parcel under title derived from New York State, against whom... claims could be made." Oneida Indian Nation v. County of Oneida, 70-CV-35, slip op. at 9 n. 3 (N.D.N.Y., November 9, 1971).
Nor is the problem limited to this case,
this particular land transaction, the Oneida Indian Nation, or even this area. Other Indian tribes have similar claims
in several other states. Litigation brought by the tribes themselves,
or by the federal government in their behalf,
is already pending. Further suits brought by the United States are imminent. The Department of Justice has alerted the United States Marshal for this district that, unless Congress extends the statute of limitations for such suits beyond July 18, 1977,
an action on behalf of the Cayuga and St. Regis Mohawk tribes will be commenced immediately. The Marshal was given this advance notice because it is anticipated that the suit will involve some 10,000 defendants. The potential for disruption in the real estate market is obvious and is already being felt. News reports indicate that title companies have refused to insure titles in areas where Indian land claims exist, even if law suits have not yet been commenced.
The greater part of the disruption and individual hardships caused by litigation such as this could be avoided by seeking solutions through other available vehicles. This in no way is intended to be critical of the plaintiffs' conduct. The trial of this case demonstrated that they have patiently for many years sought a remedy by other means - but to no avail. The aid of the United States as guardian has been sought for the purpose of instituting claims against the State of New York, to challenge The remedy afforded by Congress against the United States for alleged breach of trust has been and is presently being pursued before the Indian Claims Commission.
Finally, it is within the power of Congress to dispose of the matter under the constitutional delegation of power.
The aptness of what was recently said by Chief Judge Kaufman is striking. "As in so many cases in which a political solution is preferable, the parties find themselves in a court of law." British Airways Board v. Port Authority of New York and New Jersey, 558 F.2d 75 at 78 (2d Cir. 1977).
I. NATURE OF THE PROCEEDING
The Oneida Indian Nations are suing for damages arising from the allegedly illegal use and occupancy of a part of their aboriginal land. In 1795, the State of New York purchased a large tract of the aboriginal land of the Oneida Nation. Plaintiffs claims that this purchase violated United States treaties and the Indian Nonintercourse Act, 25 U.S.C. § 177. Therefore, plaintiffs contend that the purchase was void and of no effect.
Part of the 1795 purchase is now occupied by the defendant counties. Plaintiffs measure their damages by the fair rental value of such land for the years 1968 and 1969, the period covered by the complaint.
The action was commenced in 1970. Following a motion for summary judgment by the defendants, this court dismissed the action for lack of federal jurisdiction. It was decided that diversity of citizenship was absent, 28 U.S.C. § 1332, and that federal question jurisdiction was lacking because the case did not "[arise] under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331(a). This court held that the federal question failed to appear on the face of the complaint; it only appeared in anticipation of various defenses. The Court of Appeals affirmed, holding that the jurisdictional claim "shatters on the rock of the 'well-pleaded complaint' rule." Oneida Indian Nation v. County of Oneida, 464 F.2d 916, 918 (2d Cir. 1972). However, the Supreme Court reversed, stating that plaintiffs'
assertion of a federal controversy... rests on the not insubstantial claim that federal law now protects, and has continuously protected from the time of the formation of the United States, possessory right to tribal lands, wholly apart from the application of state law principles which normally and separately protect a valid right of possession.
Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 677, 94 S. Ct. 772, 782, 39 L. Ed. 2d 73 (1974). Because the "Oneidas assert a present right to possession based in part on their aboriginal right of occupancy",ty first, reserving the question of damages and that Id., the complaint on its face raises a federal question.
After remand, plaintiffs moved for summary judgment, but the motion was denied summarily. I held that summary judgment was inappropriate in such a complex and far-reaching case; a full exploration of all the facts was in order. However, trial of the issues was trifurcated. The parties agreed to try the issue of liabili of liability of the State of New York to the defendant counties for later disposition.
Subsequently, the plaintiffs developed their proof, largely through documentary exhibits, in a three day trial. The defendants, relying only on the plaintiffs' proof and the law, submitted no evidence.
Originally, there were two plaintiffs, the Oneida Indian Nation of New York and the Oneida Indian Nation of Wisconsin. During the trial, plaintiffs moved to amend their complaint to join the Oneida of the Thames Band Council, a band of Oneidas from Ontario, Canada, as party plaintiffs. The motion was granted.
The three plaintiffs are the direct descendants of the Oneida Indian Nation which inhabited Central New York prior to the Revolutionary War. According to expert testimony, this conclusion is supported by extensive research into the kinship and genealogies of the Oneida Nation. (Tr. 63-66, 163-65). Furthermore, the United States is presently paying annuities, which are owed to the Oneida Nation under the Treaty with the Six Nations, executed on November 11, 1794, to the Oneidas in New York and Wisconsin. The Wisconsin Oneidas receive their payments in cash, and the New York Oneidas in cloth. (Tr. 25-26). Also, the Bureau of Indian Affairs recognizes both the Wisconsin and New York Oneidas as the successors in interest to the Oneida Nation of 1794. (Tr. 26, Exh. 49).
This finding is not disturbed by defendants' allegations that the present leadership of the Oneida Nation of New York is in dispute. Regardless of which individuals hold office within the tribe, the tribe is recognized as the direct descendant of the Oneida Nation which inhabited New York 200 years ago. Nothing else is required.
The defendants are the Counties of Oneida and Madison. The parties agree that the defendants now occupy and claim to be the record owners of part of the aboriginal Oneida land, more specifically, part of that area of Oneida land purchased by New York State in 1795.
The Oneidas' aboriginal land ran from the Pennsylvania border north to the St. Lawrence River, from the shores of Lake Ontario to the western foothills of the Adirondack Mountains. (Tr. 69). This region can be described as a band, about fifty miles wide, running north-south through eastern central New York. According to the records of the earliest white missionaries who came to upstate New York, the Oneidas were occupying this land during the early 17th Century. (Tr. 69, 137). They continued to occupy this land until shortly after the birth of the United States.
During the Revolutionary War, the Oneidas fought alongside the Colonists against the British. (Tr. 73). Aside from their service as scouts and their active participation in various battles in upstate New York, the Oneidas performed another valuable function for the Colonies - they prevented the Six Nations or Iroquois from taking a unified stand as allies of the British. (Tr. 73). The Iroquois were the most influential and powerful tribe in the Northeast and had traditionally been an ally of the British.
At the outset of the Revolutionary War, the Colonial government sought to secure the neutrality of the Iroquois. Although this result was not achieved, at least the Iroquois did not fight in unison against the Colonists. Because the Oneidas and Tuscaroras allied themselves with the Colonists, the Six Nations put out the council fires and permitted each nation to choose its ally independently.
After the War, the new nation sought to reward and protect its valuable ally, the Oneida Nation.The Treaty of Fort Stanwix, executed in 1784 to make peace with the Six Nations, expressly secured the Oneidas "in the possession of the lands on which they are settled." (Exh. 1).
A few years later, in further thanks for their help, the federal government commissioned, post facto, several Oneidas as officers in the United States Army. (Tr. 88, Exh. 11). Twice again, in treaties between the Six Nations and the United States, the federal government secured the Oneidas in the possession of their land.
However, in 1788, because of increasing pressures to open up the Oneidas' land to settlement, the State of New York purchased the great majority of the Oneidas' land from them. They were left with a reservation of about 300,000 acres in the area southwest of Oneida Lake. This reservation is outlined in Exh. 7 and the parties have stipulated that the land involved in this suit lies within the boundaries of this 1788 reservation.
In 1790, Congress passed the first Indian Nonintercourse Act (the Act). That statute prohibited any land transactions with Indian tribes that were not executed by public treaty under the authority of the United States. 1 Stat. 137-38 (Exh. 10). In 1793, the Act was amended into substantially its present form. The gist of the Act remains the same - unless by treaty with the United States or under the authority of the United States, no purchase or grant of land from an Indian tribe "shall be of any validity." 25 U.S.C. § 177.
By 1795 a conflict had developed between the United States and the State of New York over the State's power to negotiate purchases of land from the Oneidas. The federal policy toward the Oneidas remained the same - the government intended to reward them for past services and to protect them from predation by the white settlers. (Exhs. 17, 19). New York, however, desired to purchase the Oneidas' land, along with the land of many other Indian nations within its borders. Secretary of War, Timothy Pickering, wrote to United States Attorney General William Bradford for an opinion on whether or not New York had the power to purchase Indian Land without the intervention of the United States government. The Attorney General responded by stating the language of the Nonintercourse Act was "too express to admit of any doubt upon the question." (Exh. 22). The Act applied to New York. In his opinion Bradford did not question New York's right to land ceded to the State by treaty entered into prior to the adoption of the Constitution of the United States. However, as to the land reserved to the Oneidas under those treaties, he held that the Oneidas' rights could not be extinguished except "by a treaty holden under the authority of the United States, and in the manner prescribed by the laws of Congress." (Id.)
Pickering had been informed that New York was attempting to purchase land from the Cayuga, Onondaga and Oneida Nations. In June of 1795, he wrote to Israel Chapin, Jr., Superintendent of the Affairs of the Six Nations, ordering him not to aid New York in these purchases. Chapin was further instructed to warn the Six Nations of the illegality of any such transactions with New York. Finally, noting that New York's Governor Clinton refused to request federal commissioners, Pickering hoped that the situation would improve when the new governor, John Jay, took office. (Exh. 24). The hope remained only a hope.In July, Jay wrote Pickering that, "on this occasion I think I should forbear officially to consider and decide" whether the "Act of 1 March 1793" was constitutional or whether the conduct of New York violated either the United States Constitution or the 1793 Nonintercourse Act. He observed, however, that under the New York Constitution, transactions with Indian tribes must be pursuant to acts of the Legislature; that the enabling legislation in this instance was silent "[as] to any intervention or ...