Appeal from an order of the District Court for the Northern District of New York (Neal P. McCurn, D.J.) denying a motion by the Houdenosaunee and five of its constituent nations to intervene as of right in an action to recover possession of Indian Lands.
Newman and Kearse, Circuit Judges, and Brieant, District Judge.*fn*
Appellant, the Houdenosaunee, or "Peple of the Longhouse," also known as the Six Nations Iroquois Confederacy, together with five of its constituent nations, the Mohawk, Oneida, Onondaga, Seneca and Tuscarora nations, appeal from an order of the United States District Court of the Northern District of New York (McCurn, J.), which denied leave to intervene as of right in a pending action for ejectment and to recover damages for trespass to real property, which litigation is more particularly described below.*fn1 For the reasons stated below, we reverse and remand with instructions to permit intervention as of right with respect to the claims of the intervenors to declare their title to and recover possession of the lands at issue in the litigation and for damages in connection with such claims. Whether the intervenors, once having been allowed to participate, should be permitted also to allege additional claims, we leave to the informed discretion of the district court.*fn2
The proposed intervenors allege that the Houdenousaunee and its constituent nations are each recognized as Indian nations or tribes by the United States as a matter of law by reason of prior treaties with the United States.*fn3 We believe the proposed intervenors have demonstrated that certain of the claims they wish to assert bring them clearly within Rule 24(a)(2), F.R.Civ.P., which reads in relevant part as follows:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
Plaintiffs, the Oneida Indian Nation of Wisconsin and the Oneida of the Thames Band, initiated this litigation in 1979 to declare their title to and recover possession of more than five million acres in central New York State, and obtain damages. The claims concern a swath of land 50 to 60 miles in width, extending from Pennsylvania to Canada, encompassing portions of 13 New York counties. Among the issues before the district court, in addition to the ultimate question of title and the right to possession, is the question of whether certain treaties made by the State of New York with the Oneida Indian Nation, including the Treaty concluded at Fort Herkimer, New York on June 23, 1785 and the Treaty concluded at Fort Schuyler (now Utica, New York) on September 22, 1788, are void or voidable for non-compliance with a 1783 Proclamation of the Continental Congress and provisions of the Articles of Confederation said to be applicable thereto, and if so, what effect, if any, treaties made by the United States, including the Treaty concluded at Fort Stanwix (now Rome, New York) on October 22, 1784 (7 Stat. 15), the Treaty concluded at Fort Harmar (now Marietta, Ohio)*fn4 on January 9, 1789 (7 Stat. 33), and the Treaty concluded at Canandaigua, New York on November 11, 1794 with the Houdenosaunee (7 Stat. 44), have upon the rights of the parties.
The district court dismissed the complaint for failure to state a claim on which relief can be granted and denied, without prejudice, the motion to intervene as moot. Oneida Indian Nation of New York v. State of New York, 520 F. Supp. 1278 (N.D.N.Y. 1981). On appeal, this Court, affirmed in part, reversed in part, and remanded for "additional proceedings in order fully to develop the complex factual and legal issues underlying certain claims raised by the Oneidas." 691 F.2d 1070, 1073 (2d Cir. 1982). Familiarity of the reader with these prior opinions is assumed. The district court interpreted our mandate as requiring an evidentiary hearing to aid in its reconsideration of the original motion to dismiss previously granted by that court. Discovery and preparation for a hearing followed, and appellants renewed their motion to intervene.
In denying intervention, the district noted that the intervenors' proposed complaint essentially comprises two aspects. The first aspect raises the same issue that this Court remanded to the district court for reconsideration: whether the "aboriginal title to land, confirmed and guaranteed by federal treaties and pronouncements pursuant to powers delegated to the federal government under the Articles of Confederation, was never extinguished since the state treaties were improperly concluded without federal consent." 691 F.2d at 1074. As to that aspect of the complaint, the district court concluded that, though the intervenors allege a sufficient interest in the subject land and are "so situated that the disposition of the action may as a practical matter impair or impede [their] ability to protect that interest," their position on the remand issues is essentially identical to that of the original plaintiffs so that the latter's advocacy is adequate to protect their interests.
Turning to the second aspect of the proposed complaint, the district court observed:
There can be little doubt that the second aspect of the complaint-in-intervention is an assertion of interests adverse to those of the Oneidas, and with respect to which representation by the Oneidas would be inadequate, to state the obvious. * * * Movants state that most of upstate New York, including the instant claim areas, belongs to the Houdenosaunee as a confederacy and that the subject land is not the separate property of the Oneidas, apart from the confederacy. Movants also contend that the Oneidas lacked authority from the Houdenosaunee to enter into the treaties with New York State whereby the land was conveyed.
This aspect of the complaint is based on the Houdenosaunee's allegation that under its ancient organic law called Gayanerakowa,*fn5 the confederation rather than the constituent nations, holds the land title and has the sole right to sue to recover this vast tract. Support for this Indian version of the statute quia emptores was somewhat vague in the district court.*fn6 However, except for allegations frivolous on their face, an application to intervene cannot be resolved by reference to the ultimate merits of the claims which the intervenor wishes to assert following intervention, see LaRouche v. Federal Bureau of Investigation, 677 F.2d 256, 258 (2d Cir. 1982), but rather turns on whether the applicant has demonstrated that its application is timely, that it has an interest in the subject of the action, that disposition of the action might as a practical matter impair its interest, and that representation by existing parties would not adequately protect that interest. LaRouche, supra at 257; United States Postal Service v. Brennan, 579 F.2d 188, 191 (2d Cir. 1978).
In addition to the claims based on Gayanerakowa, asserted by the Houdenosaunee, two of the constituent nations, the Mohawk and the Onondaga claim aboriginal ownership of parts of the same tract described in the complaint and claimed by the plaintiffs.*fn7
Because we believe that there is a substantial likelihood that the claims and interests of the proposed intervenors concerning the disputed lands may be adversely affected at least by principles of stare decisis, arising out of the final judgment to be entered in this case, see New York Public Interest Research Group, Inc. v. The Regents of the University of the State of New ...