Appeal from a judgment of the District Court for the Northern District of New York (Neal P. McCurn, Judge) dismissing for failure to state a claim a suit by Oneida Indians alleging that New York's purchases of five and one-half million acres of their land in 1785 and 1788 violated the Articles of Confederation, the 1784 Treaty of Fort Stanwix, and the Proclamation of 1783. 649 F. Supp. 420.
Newman, Kearse, and Winter, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
This appeal requires consideration of the validity of two treaties under which New York purchased more than five million acres of land from the Oneida Indians in 1785 and 1788. The appeal is unusual because it requires a federal court, perhaps for the first time, to determine whether actions of a state violated the Articles of Confederation. These matters arise on an appeal by the Oneidas and other Indians from a judgment of the District Court for the Northern District of New York (Neal P. McCurn, Judge) dismissing their suit against the State of New York and others for recovery of the land and damages. The District Court dismissed the suit for failure to state a claim on which relief can be granted, after conducting an extensive hearing into the historical background of the relevant documents, as required by this Court's prior decision, Oneida Indian Nation of New York v. State of New York, 691 F.2d 1070 (2d Cir. 1982) (Oneida I). We agree with Judge McCurn that the treaties under which the land was acquired were not invalid under the Articles of Confederation, the Proclamation of 1783, or the 1784 Treaty of Fort Stanwix. We therefore affirm the judgment of the District Court.
This litigation began in 1978. Suit was filed by the Oneida Indian Nation of New York and some of its members. 78 CV-104 (N.D.N.Y.). Defendants were the State of New York and several state agencies and state officials. A similar suit was filed in 1979 by the Oneida Indian Nation of Wisconsin and the Oneida of the Thames Band, a Canadian tribe located in Ontario. 79-CV-798 (N.D.N.Y.). The second suit named as defendants the State of New York, several state agencies and officials, and several counties, municipalities, and businesses located in the area that is the subject of the litigation. In 79-CV-798, a defendant class was certified consisting of approximately 60,000 individuals, businesses, and governmental entities and officials. Because of a tribal dispute over recognition of a governing body of the Oneidas of New York, the first suit remained somewhat inactive, and the litigation continued in the second suit, although both suits are the subject of the dispositive rulings now pending on appeal. Intervention in the second suit was subsequently granted to the Houdenosaunee, a confederacy of the six Iroquois Nations, and five of its constituent nations, the Oneida, Onondaga, Mohawk, Seneca, and Tuscarora Nations. See Oneida Indian Nation of Wisconsin v. State of New York, 732 F.2d 259 (2d Cir. 1984). The sixth nation in the confederacy is the Cayuga Nation.
The subject of the litigation is a swath of land in central New York 50 to 60 miles wide, extending from New York's southern border with Pennsylvania to its northern border with Canada. The land comprises more than five and one-half million acres and encompasses portions of thirteen New York counties. New York acquired the land as a result of two treaties it concluded with the Oneidas -- the Treaty of Fort Herkimer, signed on June 23, 1785, and the Treaty of Fort Schuyler, signed on September 22, 1788. By the first treaty New York acquired 300,000 acres for $11,500 in goods and cash. By the second treaty New York acquired approximately five million acres for $5,500 in goods and cash, plus a payment of $600 per year. The annual payment obligation was capitalized and discharged by a lump-sum payment in 1839. N.Y. Laws ch. 518 (1839).
The plaintiffs challenged the validity of the two transactions on a number of grounds, of which only three have survived the prior appeal to concern us on the pending appeal: lack of consent by the Confederal Congress, alleged to be required by the Articles of Confederation, conflict with the 1784 Treaty of Fort Stanwix between the United States and the Six Nations, and conflict with the Proclamation of 1783, issued by the Confederal Congress. The District Court originally dismissed all of the claims for legal insufficiency in 1981. Oneida Indian Nation of New York v. State of New York, 520 F. Supp. 1278 (N.D.N.Y. 1981).
On the first appeal we upheld much of what the District Court had decided. Oneida I. We upheld the rejection of New York's defenses of Eleventh Amendment immunity, id., 691 F.2d at 1079-80, non-justiciability, id. at 1080-83, and untimeliness, id. at 1083-84. With respect to justiciability, we upheld the power of a federal court to determine in general Indian land rights based on Indian treaty or other federal law but did not focus specifically on issues of justiciability that might arise in the course of considering the merits of the particular claims advanced by the plaintiffs. With respect to timeliness, we rejected the applicability of state statutes of limitations to the plaintiffs' federal law claims and also ruled that a time bar based on federal law was not applicable since the tribes should not be precluded in circumstances where the United States would be entitled to sue; the United States could sue for damages until December 31, 1982, on claims that accrued prior to July 18, 1966, see 28 U.S.C. § 2415(a), (b) (1982 & Supp. IV 1986), and could sue without any time limit to establish title or possession, id. § 2415(c). Though our prior opinion contained no discussion of a defense of laches, it stated in its conclusion that this defense was being rejected. Oneida I, 691 F.2d at 1097.*fn1
Turning to the merits of the plaintiffs' claims, the panel in Oneida I upheld the District Court's rejection of the claim that the lands had been acquired by fraud, id. at 1096, and the claim that the 1788 transaction was a lease, creating a right of reversion that could not lawfully be acquired without congressional consent after enactment of the first Nonintercourse Act, Act of July 22, 1790, 1 Stat. 137 (1845) (current version codified at 25 U.S.C. § 177 (1982). With these matters cleared away, the panel then focused on the issues at the heart of the current controversy. Ultimately the panel concluded that the claims based on the Articles of Confederation, the Treaty of Fort Stanwix, and the Proclamation of 1783 could not be resolved on a motion to dismiss under Fed. R. Civ. P. 12(b)(6) "without affording the plaintiffs an evidentiary hearing in order to clarify the meaning and context of [contemporaneous] statements relied on and the weight to be given to them." Oneida I, 691 F.2d at 1086. The case was remanded for such a hearing.
On remand, the District Court assembled a voluminous record, detailed examination of which has occasioned the delay in issuing this opinion. In live testimony, videotaped depositions, and written statements, several of the nation's foremost historians of the confederal period gave their views about the background and meaning of the key documents at issue in the litigation. Their statements were accompanied by hundreds of supporting documents, including the correspondence of the principal participants. In a scholarly and comprehensive opinion, Judge McCurn adhered to his previous decision, dismissing as legally insufficient all of the plaintiffs' remaining claims. Oneida Indian Nation v. State of New York, 649 F. Supp. 420 (N.D.N.Y. 1986). We will set forth Judge McCurn's rulings with respect to each of the principal points at issue in the course of our consideration of the merits.
I. The Rights Concerning Indian Lands
Under the so-called Doctrine of Discovery, long recognized by the Supreme Court, Worcester v. Georgia, 31 U.S. 515, 543, 8 L. Ed. 483 (1832); Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 573-74, 5 L. Ed. 681 (1823), the discovering nations held fee title to Indian land, subject to the Indians' right of occupancy and use. County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 234, 84 L. Ed. 2d 169, 105 S. Ct. 1245 (1985); Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667, 39 L. Ed. 2d 73, 94 S. Ct. 772 (1974). This distinction between fee title and the Indians' right of occupancy and use, sometimes called Indian title or aboriginal title, gave rise to a corresponding distinction between the rights to affect fee title and Indian title. The right to extinguish Indian title, sometimes called a right of extinguishment, was held by the sovereign -- Great Britain in the period prior to the American Revolution. Whether this right was held by the United States or by the individual states during the confederal period is part of the pending controversy. Since the adoption of the Constitution, there has been broad agreement that the right of extinguishment belongs to the national government. See Oneida Indian Nation v. County of Oneida, supra, 414 U.S. at 667. The right to purchase the fee title to Indian land is known as the right of preemption. Whether the right of preemption enjoyed by the states during the confederal period included the right of extinguishment is also part of the pending controversy.
II. The Claim Under the Articles of Confederation
Plaintiffs contend that under the Articles of Confederation the United States held the exclusive right of extinguishment of Indian title as to all Indian lands, both within and beyond the borders of the states. As a consequence, the argument continues, New York's acquisition of the disputed lands is invalid for lack of consent by the Confederal Congress. At a minimum, plaintiffs contend, Congress had the power to control the right of extinguishment in the exercise of its power to make peace treaties with the Indians and that, without consent of the Confederal Congress, no state could extinguish Indian title under circumstances that would interfere with congressional power to treat with the Indians on matters of war and peace.
Before examining these contentions, we pause to notice the jurisdictional conundrum posed for an Article III court by a claim alleging a violation of the Articles of Confederation. During the Confederation, there were no national courts authorized to adjudicate any issues arising generally under national law.*fn2 Though the Constitution established as the supreme law of the land all treaties previously made, U.S. Const. art. VI, cl. 2, it did not expressly incorporate, even for purposes of adjudicating antecedent disputes, the Articles of Confederation or statutes enacted by the Confederal Congress. With no national court available to adjudicate an Articles claim during the Confederation and no express incorporation of the preexisting Articles as binding law after the Confederation, how does an Article III court acquire jurisdiction over a claim arising under the Articles? The District Court, in its first decision in this litigation, had recognized the argument that federal jurisdiction was lacking for the claim under the Articles. 520 F. Supp. at 1291. The District Court ruled, however, that subject matter jurisdiction was plainly available for the claim arising under the Treaty of Fort Stanwix, incorporated as the supreme law of the land by the Constitution, id. n.12, and concluded that the claim under the Articles was a pendent state law claim over which it elected to exercise jurisdiction under United Mine Workers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). 520 F. Supp. at 1291. Judge McCurn noted that New York had incorported the Articles into its statutes in 1778. Id. at 1291 n.13.
One may wonder whether New York's incorporation of the Articles was only an act of adherence to the Confederation or in addition was intended to render them part of the positive law of the State, enforceable in its courts. Even if New York courts viewed the Articles as enforceable "state" law, one may wonder whether they would have ever upheld a claim alleging that the State of New York had violated the Articles by acting in conflict with unexercised power of Congress.*fn3 One may even speculate that state judges in the confederal period might have left such power struggles between the states and Congress to adjustment through the non-judicial processes of government and through politics, perhaps inaugurating the political question doctrine.*fn4
However we might resolve these doubts, we believe that the opinion of the prior panel in Oneida I established as the law of the case that jurisdiction exists for the claim based on the Articles and that this claim is justiciable, notwithstanding the fact that the dispute concerns the relative powers of Congress and a state under a governmental system that lacked a national judicial branch. On the prior appeal, we noted that the District Court had upheld subject matter jurisdiction, Oneida I, 691 F.2d at 1074. Since a reviewing court always has an obligation to satisfy itself of the existence of such jurisdiction, this may be deemed implicit approval of the District Court's jurisdictional ruling. As to justiciability, though the panel discussed only the general question of whether Indian land claims were justiciable, without explicit consideration of the justiciability of a claim based on the Articles, id. at 1080-83, the entirety of the panel's discussion of the merits was premised on the appropriateness of adjudicating that claim in the District Court. That was a principal reason for the remand. We therefore accept as the law of the case both subject matter jurisdiction over the Articles claim and its general justiciability, though, as we discuss below, one issue pertinent to that claim is not justiciable.
Apart from law of the case, we note that the Supreme Court has adjudicated a claim concerning title to Indian land even though the challenged acquisitions occurred during the interval between the Declaration of Independence and the Constitution. Johnson v. McIntosh, supra. The former Court of Claims also adjudicated an Indian claim arising from a land transaction occurring during the Confederation. Six Nations v. United States, 173 Ct. Cl. 899 (1965). Rejecting a claim under section 2(5) of the Indian Claims Commission Act, 25 U.S.C. § 70a(5) (1964) (repealed), the Court ruled that the Articles of Confederation did not establish a fiduciary relationship between the United States and the Six Nations with respect to lands within state borders. In Penhallow v. Doane's Adm'rs, 3 U.S. (3 Dall.) 54, 1 L. Ed. 507 (1795), the Supreme Court, in upholding the validity of a judgment entered during the confederal period by the Court of Appeals in Cases of Capture, adjudicated the validity of congressional action taken under the Articles and even action taken prior to their ratification.
A. The Context, Structure, and Text of the Articles of Confederation
We turn then to the merits of appellants' claim under the Articles, initially bearing in mind the relevant historical context.
The framing and ratification of the Articles of Confederation occurred against a background dominated by two overriding circumstances pertinent to the issues in this litigation. First, treaties of peace with both Great Britain and with the Six Nations of the Iroquois Confederacy had not yet been concluded. The Articles were submitted to the states in 1777 and ratified by Maryland, the last state to do so, in 1781. The Treaty of Paris, formally ending hostilities with Great Britain, was not signed until September 3, 1783, 8 Stat. 80 (1848), and the Treaty of Fort Stanwix, ending hostilities with the four Iroquois nations that had sided with the British -- the Senecas, Mohawks, Onondagas, and Cayugas -- and assuring protection to the two Iroquois nations that had sided with the United States -- the Oneidas and the Tuscaroras -- was not signed until October 22, 1784. Second, there existed a major controversy between the so-called landed states -- those claiming Western lands -- and the so-called landless states -- those without such claims. The landed states, New York, Connecticut, Massachusetts, Virginia, North Carolina, South Carolina, and Georgia, asserted their claims primarily on the basis of their colonial charters, except for New York, which based its claim on its one hundred year history of special relationship with the Six Nations. The landless states were New Hampshire, Rhode Island, New Jersey, Pennsylvania, Delaware, and Maryland. A dominant concern of the new national government was to limit the territory of the landed states to their traditional borders near the East Coast and secure for the United States the vast domain of land these states claimed westward to the Mississippi River, or even "to the South Sea," as stated in the colonial charters of Connecticut, Massachusetts, Virginia, North Carolina, South Carolina, and Georgia. Ultimately the new government was successful, as the landed states ceded "their" Western lands to the United States, often in exchange for recognition of favorable boundaries for their traditional areas of state jurisdiction.
It is in the context of these great issues of war and land that the fledgling national government undertook to determine the allocation of authority between the nation and the states on diverse matters, of which none was more contentious than Indian affairs. The close relationship between the evolution of the Articles of Confederation and resolution of the Western lands issue is vividly illustrated by the instructions of Maryland to her delegates not to agree to the Articles until matters concerning the Western lands had been settled. See U.S.C.A. Art. of Confed., Historical Notes 15 (1987).
The fundamental structure of the Articles is one of limited delegation of powers to the national government with reservation to the states of all powers not delegated. 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.
The Necessary and Proper Clause, which played such a significant part in the shaping of federal powers under the Constitution, see McCulloch v. Maryland, 17 U.S.(4 Wheat.) 316, 4 L. Ed. 579 (1819), was absent from the Articles of Confederation.
Two clauses of Article IX set forth the delegated powers pertinent to the pending litigation. Article IX(1) provides:
The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article. . . .
The United States in Congress assembled shall also have the sole and exclusive right and power of . . . regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated. . . .
The extent to which the authority of Congress was limited by the phrase "not members of any of the States" and by the Legislative Rights Proviso are major issues of dispute in this litigation.
Two clauses limiting the authority of the states are relevant to the pending issues. Article VI(1) provides:
No State without the consent of the United States in Congress assembled, shall . . . enter into any conference, agreement, alliance or treaty with any king, prince or foreign state. . . .
No State shall engage in any war without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay, till the United States Congress assembled can be consulted. . . .
B. The Source of National Power to Make Peace Treaties with the Indians
A fundamental issue that divides the parties is whether federal power to make peace treaties with the Indians derives from Article IX(1) or Article IX(4). The dispute is important because the plaintiffs, relying on clause 1, contend that the national power to make peace treaties with the Indians included the power to extinguish Indian title, whereas the defendants, relying on clause 4, contend that the national power to make treaties with the Indians in the course of "managing all affairs" with them was subject to the Legislative Rights Proviso in that clause, a proviso the defendants contend confirmed state authority to extinguish Indian title to lands within state borders. As a fallback ...