Appeal from an order of the United States District Court for Northern District of New York, Hon. Edmund Port, denying motion for summary judgment on the ground that actions by the Indian Claims Commission operated as necessary federal ratification of land transfers from appellees to the State of New York. Appeal dismissed as improvidently granted.
Before Moore, Mulligan and Meskill, Circuit Judges.
This appeal presents another chapter in a long and complicated litigation which is detailed in the opinion of the Supreme Court, Oneida Indian Nation of New York v. County of Oneida, 414 U.S. 661, 94 S. Ct. 772, 39 L. Ed. 2d 73 (1974), and in Judge Edmund Port's later decision on remand, reported at 434 F. Supp. 527 (N.D.N.Y.1977). Rather than repeat the historical background and legal issues involved we assume familiarity with these opinions and limit our discussion to the narrow question presented on this appeal.
The Oneida Indian Nations of New York and Wisconsin (Oneida Nations) brought two actions against the Counties of Madison and Oneida in the United States District Court for the Northern District of New York in 1970 and 1974.*fn1 The gravamen of the complaints was that certain sales of land by the Oneida Nations pursuant to treaties with the State of New York in the period from 1795 to 1842 were void by reason of the failure of the State to comply with the Indian Trade and Intercourse Act, 1 Stat. 137, enacted in 1790 and now codified in 25 U.S.C. § 177.*fn2 That Act prohibits the conveyance of Indian lands without the consent of the United States and invalidates transfers made without federal approval. The plaintiffs alleged in the district court that the United States had consented to none of the cessions covered by the treaties with New York and that the Oneida Nations were entitled to damages for the Counties' use and occupancy of the land. These actions are more fully described in the margin.*fn3
The Oneida Nations had previously instituted proceedings in 1951 against the United States before the Indian Claims Commission (ICC) which included the same land and treaties now involved in the district court proceedings. The theory of the ICC proceedings was that, by virtue of the Trade and Intercourse Act, the United States owed a fiduciary duty to the Oneida Nations to protect them against unfair dealings by third parties when disposing of their lands. The Nations charged that the United States had breached that duty in that the consideration received for the sales to New York was grossly inadequate and unconscionable. The Nation sought the fair market value of the land of which they were deprived by the treaties. The ICC determined that the United States was under an obligation to the Oneida Nations to assure that they received conscionable consideration. Questions of value and consideration, however, were reserved for further proceedings. Oneida Nation of New York v. United States, 26 Ind.Cl.Comm. 138 (1971). The United States appealed this determination to the Court of Claims, which held that scienter on the part of the federal government was a prerequisite to its liability. The Court affirmed the ICC as to two treaties at which the United States did have representatives, but remanded for a determination of the Government's knowledge, actual or constructive, of 23 treaties where no United States representatives were present. United States v. Oneida Nation of New York, 477 F.2d 939, 201 Ct.Cl. 546 (1973).*fn4
The ICC's determination on the scienter issue was deferred pending settlement negotiations between the Oneida Nations and the United States. They proved to be fruitless. On September 22, 1978 the ICC found that the Government had constructive knowledge of all 23 treaties and probably had actual knowledge of most of them. Oneida Indian Nation of New York v. United States, 43 Ind.Cl.Comm. 373, 375. The liability of the United States still depends, however, upon whether the Oneida Nations received conscionable consideration under the treaties with New York. The ICC ceased to exist on September 30, 1978, eight days after its scienter decision was rendered. Jurisdiction over pending cases was then assumed by the Court of Claims pursuant to 25 U.S.C. § 70(v). The questions of adequacy of consideration and damages are still pending in the Court of Claims.
In March, 1979 Madison County filed two identical motions for summary judgment in the district court in the 1970 and 1974 actions. The County urged that the ICC's September 22, 1978 holding that the United States had knowledge of the treaties and would be liable to the Oneida Nation if in fact inadequate consideration had been received, constituted an implied congressional ratification of New York's ownership of the lands under the treaties so as to satisfy the Trade and Intercourse Act. Noting that ratification under the Act may be retroactive, Seneca Nation of Indians v. United States, 173 Ct.Cl. 912, 915 (1965), the County argued that this implicit approval operated to vest title in the State ab initio. Therefore, it concluded, the action for damages for unlawful trespass against the Counties should be dismissed. We note that whether or not the cessions to New York extinguished the Oneida Nation's title to the lands was not before the ICC and was expressly avoided in its decision. Oneida Nation of New York v. United States, supra, 43 Ind.Cl.Comm. at 407.
Judge Port entered an order on May 17, 1979 which denied Madison County's motion for summary judgment in all respects. He found that the ICC decision did not constitute a ratification of the treaties in question. However, pursuant to 28 U.S.C. § 1292(b), Judge Port certified that the order involved a controlling question of law which may materially advance the termination of the litigation in issue. The question so framed reads:
"Does a final decision of the Indian Claims Commission that the United States "will be liable under the Indian Claims Commission Act and the Trade and Intercourse Act if the Oneida Indians did not receive conscionable consideration under any of the aforementioned treaties', Oneida Indian Nation of New York v. United States, 43 Ind.Cl.Comm. 373, 467 (1978) (No. 301, Claims 3 and 7), constitute consent or ratification by the Congress of said treaties?"
On September 26, 1979 the County's petition for leave to appeal was granted by a panel of this court including Judges Mulligan and Meskill. Issues not previously raised or considered, however, compel the conclusion that the petition was improvidently granted, and we therefore dismiss the appeal.
The premise of the certified question is explicit: that the decision of the ICC is final. It is quite apparent that the decision is interlocutory since there has been no resolution of the adequacy of the consideration received or the amount of damages to be recovered. More importantly, the ICC's scienter holding, which is essential to a finding of liability on the part of the United States, has not been appealed to the Court of Claims or reviewed by the Supreme Court. Prior to the ICC's expiration, such an interlocutory determination could have been appealed to the Court of Claims within three months of the decision. 25 U.S.C. § 70s(b). The United States did not elect to do so. Appellant concedes, however, that such interlocutory appeal was not mandatory, since section 70s(b) also provides:
"That the failure of either party to appeal from any such interlocutory determination shall not constitute a waiver of its right to challenge any such interlocutory determination in any appeal from any ...