The opinion of the court was delivered by: MCCURN
MEMORANDUM-DECISION & ORDER
Plaintiffs and plaintiff-intervenors in the present actions are the descendants and successors-in-interest to the Oneida Indian Nation (Oneidas). They claim title to and the right to possess approximately six million acres of land in central New York. Plaintiffs base their claim on aboriginal title confirmed by United States treaty. The land at issue extends in a fifty to sixty mile wide strip from the Canadian border to the Pennsylvania border. The Oneidas sold the land in question to New York State in two treaties, the Treaty of Fort Herkimer in 1785 and the Treaty of Fort Schuyler in 1788. Both treaties were concluded before the United States Constitution
and the Indian Trade and Intercourse Act (Nonintercourse Act)
were enacted while the Articles of Confederation were in effect. Plaintiffs claim that the 1785 and 1788 treaties with New York are invalid under the Proclamation of 1783, and the Treaty of Fort Stanwix in 1784 between the United States government and the Six Nations Iroquois Confederacy.
Defendants' motions to dismiss are presently before the court on remand from the Second Circuit. In the Fall of 1984, the court held an evidentiary hearing on the meaning of the Articles of Confederation and the treaties at issue pursuant to the Second Circuit's instructions in Oneida Indian Nation of New York v. State of New York, 691 F.2d 1070 (2d Cir. 1982). After carefully considering the evidence submitted in connection with the evidentiary hearing, including the testimony and reports of the parties' experts, primary and secondary source documentation, the history of the period, the parties' arguments, and the relevant case law, the court grants defendants' motions.
Plaintiffs in 78-CV-104 are the Oneida Indian Nation of New York and several of its members. They claim to be the direct matrilineal descendants of the aboriginal Oneida Indian Nation. The New York Oneidas filed their complaint on March 3, 1978, against New York State; the State Thruway Authority; various state agencies, departments, and officials; and a proposed defendant class. An amended complaint was filed on July 3, 1980. Plaintiffs in 78-CV-104 have not moved to certify the defendant class.
Plaintiffs in 79-CV-798 are the Oneida Indian Nation of Wisconsin and the Oneida of the Thames Band, a Canadian tribe. They also claim to be the direct successors-in-interest to the original Oneidas. The complaint in 79-CV-798 was filed on December 5, 1979, against a proposed defendant class, New York State, various state agencies and officials, the counties and municipalities within the claim area, several businesses, and numerous individual landowners. On March 4, 1980, the court certified a defendant class consisting of all persons who claim an interest in any portion of the subject land described in plaintiffs' complaint, with the exception of individual Oneida Indians and persons who occupy the land as a principal place of residence to the extent of the residence and two surrounding acres. Oneida Indian Nation of Wisconsin v. State of New York, 85 F.R.D. 701 (N.D.N.Y. 1980). The court estimates that the defendant class includes approximately 60,000 individuals, businesses, and governmental entities. In 1984, the Houdenosaunee, also known as the Six Nations Iroquois Confederacy, intervened as plaintiffs. Oneida Indian Nation of Wisconsin v. State of New York, 732 F.2d 261 (2d Cir. 1984). On February 3, 1985, the Thames Band filed an amended complaint aligning their claims with the Houdenosaunee's claims.
Plaintiffs in both actions contend that the United States government guaranteed the Oneidas possession of their land in the Proclamation of September 22, 1783, and the Treaty of Fort Stanwix in 1784. They argue that the 1783 Proclamation and the Fort Stanwix Treaty were valid exercises of the central government's authority under the Articles of Confederation and/or the government's "external sovereignty" powers. According to plaintiffs, the Treaty of Fort Herkimer in 1785 and the Treaty of Fort Schuyler in 1788 between the Oneidas and New York State are void because the central government did not consent to the transfer of Oneida land to New York.
Plaintiffs seek a declaration that they are the owners of and have the right to possess the land in question.
They also demand possession of the land claimed, the fair rental value of the land for the period of dispossession, costs, and attorneys' fees. In addition, plaintiffs in 78-CV-104 claim interest on the fair market rental value, the tolls that the New York Thruway has collected for passage over Oneida land during plaintiffs' dispossession, and a declaration of plaintiffs' hunting and fishing rights under the 1788 Treaty if the Treaty is not void.
By Memorandum-Decision and Order dated July 24, 1981, and amended on September 10, 1981, the court granted defendants' motions to dismiss in both actions. The court held that plaintiffs had standing to challenge the 1785 and 1788 Treaties, the action did not present a nonjusticiable political question, and the Eleventh Amendment did not bar plaintiffs' actions. However, the court held that plaintiffs failed to state a claim upon which relief could be granted because under the Articles of Confederation, the states had not effectively delegated to the central government their authority to extinguish Indian title within the states' respective boundaries. Consequently, Congress did not have the authority to forbid the states from forming treaties to extinguish title to Indian land within the states' borders. The court also found that New York's conduct did not create a constructive trust, the court could not inquire into the justness of the state's actions, and the Indians did not retain any rights protected under the Nonintercourse Act even if the 1788 Treaty created a perpetual lease. Oneida Indian Nation of New York v. State of New York, 520 F. Supp. 1278 (N.D.N.Y. 1981).
The Second Circuit affirmed in part and reversed in part. It agreed with this court's determination on standing, justiciability, the Eleventh Amendment, and plaintiffs' rights under the Nonintercourse Act. However, the Second Circuit remanded the present actions with instructions to hold an evidentiary hearing on the meaning of the Articles of Confederation and the treaties at issue. Oneida Indian Nation of New York, 691 F.2d 1070.
Pursuant to the Second Circuit's instructions, this court formulated the following issues for reconsideration at the evidentiary hearing:
(a) Whether Article IX cl. 1 of the Articles of Confederation included the power to make treaties with Indian tribes, and whether the Fort Stanwix Treaty was a valid exercise of those powers and was therefore binding on New York State. See 691 F.2d at 1086-91.
(b) Whether the Article IX cl. 1 powers of Congress are limited by the qualified power of Congress under cl. 4, to manage Indian affairs. See 691 F.2d at 1091-92.
(c) Whether the Fort Stanwix Treaty of 1784 precluded New York State from unilaterally extinguishing Indian title to tribal land located within its borders. See 691 F.2d at 1092-93.
(d) Whether the Proclamation of 1783 was authorized by Article IX, cl. 4, and whether it was meant to protect the lands of all non-assimilated Indians, or merely those Indians upon lands outside state borders. See 691 F.2d at 1093-95.
Oneida Indian Nation of New York, Nos. 78-CV-104, 79-CV-798 at 4-5 (N.D.N.Y. Oct. 10, 1983) (Prehearing Order).
The evidentiary hearing was held from September 19, 1984, through October 11, 1984. The parties presented historians, political scientists, and an anthropologist as experts on the confederal period and Indian relations. In addition to their hearing testimony, the experts submitted reports supported by primary and secondary sources. Defendants' motions to dismiss are again ready for determination. The following constitutes the court's decision.
In Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 558-59, 8 L. Ed. 483 (1832), Chief Justice John Marshall left unanswered the question of whether the individual states had the power to extinguish Indian title during the confederal period. The present motions require the court to answer this question. The court's inquiry begins by examining the unique and often troubling legal relationship between the United States and the Indian nations within its borders.
A. The Doctrine of Discovery
Plaintiffs' claim to the land is based on aboriginal title. Aboriginal title is governed by the Doctrine of Discovery, a legal fiction which the Supreme Court developed in the early 1800s. The Court created the Doctrine of Discovery to reflect European policy toward the American Indians and to explain the discovering nations and the native Americans' legal rights to native land. See eg. Worcester, 31 U.S. 515, 8 L. Ed. 483 ; Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 5 L. Ed. 681 (1823). The doctrine provides that the "discovering nations held fee title to (the natives') lands, subject to the Indians' right of occupancy and use. As a consequence, no one could purchase Indian land or otherwise terminate aboriginal title without the consent of the sovereign." County of Oneida v. Oneida Indian Nation, 470 U.S. 226, , 105 S. Ct. 1245, 1251, 84 L. Ed. 2d 169 (1985). See Oneida Indian Nation of New York State v. County of Oneida, 414 U.S. 661, 667, 39 L. Ed. 2d 73, 94 S. Ct. 772 (1974). In McIntosh, Chief Justice Marshall explained:
On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. . . . But as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated, as between themselves. This principle was, that discovery gave title to the government by whose subject, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. . . .Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.
In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were, necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as a just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete .sovereignty, as independent nations, were necessarily diminished and their power to dispose of the soil, at their own will, to whomever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees subject only to the Indian right of occupancy.
McIntosh, 21 U.S. at 572-74.
Under the Doctrine of Discovery the discovering nation, in the present actions Great Britain, had fee title to Indian land which was good against all other discovering nations. The Indian tribes had the right to occupy and use the land. This right is generally known as aboriginal or Indian title. The tribe's right of occupancy could only be extinguished by the sovereign's purchase or conquest.
The right to acquire Indian land once Indian title has been extinguished is called the right of preemption. Generally, the rights of extinguishment and preemption are joined. However, they are separate powers and need not be held by the same entity. Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 3 L. Ed. 162 (1810). See Oneida Indian Nation of New York State, 414 U.S. at 667.
Before the American Revolution Great Britain, as the sovereign, held the right to extinguish Indian title and the right of preemption. Initially, Great Britain allowed the individual colonies to purchase Indian land and extinguish Indian title within their charter limits. However, widespread encroachment on Indian land, mismanagement of Indian trade, and hostilities with the French created the need for a centralized Indian policy, particularly for acquiring Indian land. Horseman, Ex. 1, p. 1.
On October 7, 1763, Great Britain issued a proclamation which prohibited the colonies from purchasing Indian land or trading with the Indians without the Crown's authority. The Crown appointed two "Superintendents of Indian Affairs" to regulate dealings with the Indians and prohibited white settlement west of the Appalachians. Proclamation of 1763 (Oct. 7, 1763), reprinted in 3 W. Washburn, The American Indian and the United States 2135-39 (1973), Ex. D2, X I. Great Britain thus retained and exercised both the right to extinguish Indian title and the right of preemption just before the colonies declared their independence.
During the pre-revolutionary period, the colonies were expanding their settlements and trying to consolidate their charter land claims. They saw the Proclamation of 1763 and Great Britain's centralization of Indian affairs as an attempt to give favored traders and land speculators western lands to the colonies' detriment. Like the Stamp Act and Quartering Act, the colonists considered the Proclamation of 1763 an unwarranted intrusion into colonial affairs. Great Britain's centralization of Indian affairs eventially become one of the grievances which led to the American Revolution. Ketchum, Ex. D2, p. 1; Tr. pp. 0521-22, 0556-57.
B. Source of Congress' Authority During the Confederal Period
Before the Articles of Confederation were ratified, Congress acted as a revolutionary government. As such, it does not fit neatly into the legal theories of sovereignty. Although it is generally believed that Great Britain's sovereign powers passed to the individual colonies when the colonies declared their independence, the Supreme Court has recognized that certain external sovereign powers vested in the central government.
As a result of the separation from Great Britain by the colonies, acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America. Even before the Declaration, the colonies were a unit in foreign affairs, acting through a common agency -- namely, the Continental Congress, composed of delegates from the thirteen colonies. That agency exercised the powers of war and peace, raised an army, created a navy, and finally adopted the Declaration of Independence.
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 316-17, 81 L. Ed. 255, 57 S. Ct. 216 (1936).
During the pre-confederal period, and even before the states had enacted their individual constitutions, Congress controlled foreign affairs and matters of war and peace. As noted above, the United States in Congress assembled declared independence from Great Britain, made alliances with foreign nations, and established an army and navy. Congress also dealt with the Indian nations, at least in matters concerning war and peace. Horseman, Ex. 1, pp. 7-8. It established Indian departments to handle Indian affairs and to advise Congress. At the beginning of the conflict with Great Britain, Congress sent the Six Nations Iroquois Confederacy a request to remain neutral. Speech to the Six Nations, II Journals of the Continental Congress 177, 182 (July 13, 1775), Ex. 2, X 10. See also Resolution to Seek Indian Neutrality, X Journals of the Continental Congress 110-11 (Feb. 2, 1778), Ex. 2, .X 17. When the Senecas, Mohawks, Onondagas, and Cayugas allied with Great Britain, congress enlisted the Oneida and Tuscaroras' help and waged war against the hostile tribes.
The fact that Congress had certain powers of external sovereignty during the pre-confederal period, whether directly from Great Britain or indirectly from the colonies' implied consent, does not mean, however, that fee title to Indian land and the right to extinguish Indian title passed to congress. The Supreme Court has stated in dicta:
It is true the United States never held fee title to Indian lands in the original States as it did to almost all the rest of the continental United States and that fee title to Indian lands in these States, or the pre-emptive right to purchase from the Indians, was in the State. . . .
Oneida Indian Nation of New York State, 414 U.S. at 670.
See also Fletcher, 10 U.S. at 141-42; Mohegan Tribe v. Connecticut, 638 F.2d 612, 625 (2d Cir. 1980), cert. denied, 452 U.S. 968, 69 L. Ed. 2d 981, 101 S. Ct. 3124 (1981); Horseman, Tr. 1016-17 (powers of preemption and extinguishment "melded" in the states prior to Articles of Confederation).
The treaties at issue in the present actions were signed after the Articles of Confederation were ratified. The authority to govern in this country has always come ultimately from the people by either an express or implied grant. See Penhallow v. Doane's Administrators, 3 U.S. (3 Dallas) 54, 80, 103, 109, 1 L. Ed. 507 (1795); Ware v. Hylton, 3 U.S. (3 Dallas) 199, 231-32, 1 L. Ed. 568 (1796); Declaration of Independence (July 4, 1776), reprinted in U.S.C.A. Const. Art. 1 § 1 - Art. 1 § 8(3). (stating, "That to secure these rights [life, liberty and the pursuit of happiness,] Governments are instituted among Men, deriving their just powers from the consent of the governed. . . ."); Art. of Confed., art. XIII, reprinted in U.S.C.A. Const., Art. 1 § 1 - Art. 1 § 8(3), Ex. D2 X 4 (signatory clause stating, "Know ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constitutents, fully and entirely ratify and confirm each and every of the said articles of confederation and perpetual union. . . ."); Faulkner, Ex. C, pp. 35-37; Rakove, Ex. E2, pp. 15-16; Scigliano, Ex. B, pp. 5-7. No matter what congress' powers were before the Articles of Confederation, the Articles' ratification redefined the central government, essentially creating a new government. The court must therefore look to the Articles of Confederation to determine what powers congress possessed.
C. Allocation of Power under the Articles of Confederation
Although interpreting the Articles of Confederation is more difficult than contemporary statutory construction because of the passage of time, the approach is the same. To determine the Articles' meaning the court must examine the Articles' language, the legislative history, the interpretations that the period's statesmen and historical experts have given the Articles, how the Articles were applied, the period's general history, and relevant secondary sources.
The colonies attempted to establish a unique form of government under the Articles of Confederation. Their rebellion against Great Britain was a rebellion against too much central government. Preserving the individual states' rights was therefore extremely important to the congressional delegates. However, they also realized that thirteen separate governments could not effectively wage war against a major European power or gain recognition from the European community. The thirteen states needed to function as a single unit in foreign relations and matters of war and peace. The framers of the Articles of Confederation attempted to create a nation where the individual states retained power over internal affairs and the central government had power over external affairs, including foreign relations and war and peace. Rakove, Ex. E2, p. 17.
Having just thrown off too much central government, however, the individual states were not about to give the new government too much power, even in external matters. They tended to retain authority over essential areas necessary for the central government to effectively exercise its delegated power. For example, the United States in Congress assembled was given exclusive power over war and peace, but the states retained the power of taxation. Art. of Confed., art. VIII(2). Congress also had exclusive power to form treaties and alliances with foreign nations, but commerce treaties could not prohibit the states from imposing "imposts and duties on foreigners" or "prohibiting the exportation or importation of any species of goods or commodities whatsoever." Art. of Confed., art. IX(1). As a result, congress often lacked essential enforcement powers, and the states tended to pursue their own interests to the detriment of the whole. Eventually, the United States was forced to create a new government with greater centralized powers "in order to form a more perfect union."
Article II of the Articles of Confederation provides for the general allocation of powers and reflects the congressional delegates' desire to protect the states' rights. Article II provides:
Each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.
Art. of Confed., art. II. Congress thus possessed only those powers which the Articles of Confederation expressly delegated to it. Lerner, Ex. A, p. 23; Tr. 96.
Article XIII of the Articles provides:
Every State shall abide by the determinations of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the articles of this confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the Legislatures of every State.
Plaintiffs argue that Article XIII functions as a supremacy clause. Defendants disagree. Defendants' expert Professor Rakove maintains that Article XIII is merely wishful thinking. The Second Circuit, however, has held that the central government's lack of power to enforce its authority under the Articles is irrelevant. Oneida Indian Nation of New York, 691 F.2d at 1095 n. 21. Although the confederal government was a sovereign entity of expressly limited powers, its powers would have been a nullity if the individual states' authority superceded congress' authority in those areas expressly delegated to the central government. Accordingly, Article XIII made congress' authority over its expressly delegated powers paramount to the states' authority.