The opinion of the court was delivered by: McCURN, Chief Judge.
MEMORANDUM-DECISION AND ORDER
By this motion, the plaintiff Cayuga Indian Nation and the
plaintiff-intervenor Seneca-Cayuga Tribe of Oklahoma
(collectively referred to as "the plaintiffs" or "the Cayugas")
seek a declaration that two conveyances of land, one occurring
in 1795, and the other occurring in 1807, are invalid under the
Nonintercourse Act (or "Act"), 25 U.S.C. § 177. The defendants
oppose said motion, claiming that questions of fact exist
concerning the circumstances surrounding these conveyances. For
the reasons stated below, this court grants the plaintiffs'
motion for partial summary judgment, and declares that the
conveyances at issue were never properly ratified by the
federal government as required by the Nonintercourse Act.
This is the third memorandum-decision written by this court
concerning the instant action, and familiarity with this case
is presumed. See Cayuga Indian Nation of New York et al. v.
Cuomo et al., 565 F. Supp. 1297 (N.D.N.Y. 1983) ("Cayuga I"),
Cayuga Indian Nation of New York et al. v. Cuomo et al.,
667 F. Supp. 938 (N.D.N.Y. 1987) ("Cayuga II"). Nevertheless, a
brief review of the facts surrounding this lawsuit is in order.
This court has previously held that the plaintiffs can
present evidence in support of the above claim, see Cayuga I,
565 F. Supp. at 1330, and in Cayuga II both parties' motions for
summary judgment were denied. Id., 667 F. Supp. at 949.
The most recent pronouncement of the Nonintercourse Act,
which has been in effect in various versions for nearly two
hundred years, provides as follows:
§ 177. Purchases or grants of lands from Indians
No purchase, grant, lease, or other conveyance
of lands, or of any title or claim thereto, from
any Indian nation or tribe of Indians, shall be of
any validity in law or equity, unless the same be
made by treaty or convention entered into pursuant
to the Constitution. Every person who, not being
employed under the authority of the United States,
attempts to negotiate such treaty or convention,
directly or indirectly, or to treat with any such
nation or tribe of Indians for the title or
purchase of any lands by them held or claimed, is
liable to a penalty of $1,000. The agent of any
State who may be present at any treaty held with
Indians under the authority of the United States,
in the presence and with the approbation of the
commissioner of the United States appointed to
hold the same, may, however, propose to, and
adjust with, the Indians the compensation to be
made for their claim to lands within such State,
which shall be extinguished by treaty.
As stated in Cayuga II, to establish a violation of the
Nonintercourse Act, a plaintiff must prove that: (1) it is or
represents an Indian tribe within the meaning of the Act; (2)
the parcels of land at issue are covered by the Act as tribal
land; (3) the United States has never consented to the
alienation of the tribal land; and (4) the trust relationship
between the United States and the tribe has never been
terminated.*fn1 Cayuga II, 667 F. Supp. at 941 and cases cited
This court has found that the plaintiffs have, as a matter of
law: (1) established for purposes of the Nonintercourse Act
that they represent an Indian tribe within the meaning of the
Act; (2) proven that the land in question is covered by the Act
as tribal land, and (3) demonstrated that the requisite trust
relationship concerning the fourth requirement of a
Nonintercourse Act suit exists between the plaintiffs and the
federal government. Id., 667 F. Supp. at 943.
In that decision, it was noted that the factual record
concerning the circumstances surrounding the 1795 and 1807 land
conveyances was, at the time, incomplete. Id. at 945.
Consequently, this court could not determine whether the United
States had ever consented to the conveyances at issue, and both
parties' motions for summary judgment were denied. Id. at 949.
Since that order, the parties have been afforded more than
two years of additional discovery. Thus, this court is
confident that the parties have had ample time to discover any
and all relevant documents concerning these conveyances, and
will now consider the merits of plaintiffs' contention that the
United States never consented to either of these land
For a treaty to be valid under the Nonintercourse Act, it
must be (1) made in the presence of a federal treaty
commissioner, and (2) entered into pursuant to the
Constitution. See 25 U.S.C. § 177.
The plaintiffs assert that no federal treaty commissioners
were present at either the 1795 or the 1807 land conveyances.
Additionally, they claim that neither of these New York
treaties were approved by the President with the advice and
consent of the United States Senate, and therefore neither
conveyance was entered into pursuant to the Constitution.
Defendants claim that federal treaty commissioners were
present at the time of both land conveyances, and that the
federal government ratified both of these treaties in a manner
consistent with the Nonintercourse Act.
(1) The presence of federal treaty commissioners.
For a conveyance to be valid under the Nonintercourse Act,
the sale must be made "in the presence and with the approbation
of the commissioner of the United States to hold [treaties]."
25 U.S.C. § 177. Thus, the New York treaties could only be
valid if they were made in the presence of a federal treaty
The plaintiffs contend that there is no evidence that any
such commissioner was present at the time of either of the two
conveyances. The defendants argue that both Jasper Parrish and
Israel Chapin Jr. were present at the time the agreements at
issue were made, and that these individuals were official
representatives of the United States.
In light of the differing views held by the parties
concerning the role these men played with respect to these
conveyances, this court, with the assistance of testimony from
historians provided by both parties, has examined the actions
taken by both Jasper Parrish and Israel Chapin, Jr., in order
to determine whether either of these individuals, ...