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, or both, were
federal treaty commissioners at the time of the 1795 and 1807
(a) Jasper Parish.
At the time New York entered into the 1795 and 1807 treaties
with the Cayugas, Jasper Parrish was an interpreter employed by
the federal government. He was present at treaty negotiations
in both 1795 and 1807, and signed the 1795 treaty between New
York and the plaintiffs as a witness and as an interpreter in
the federal service.*fn3
On February 15, 1803, Parrish was appointed to the position
of Indian sub-agent to the Six Nations.*fn4 On February 26,
1807, Parrish travelled with Cayuga representatives to a
negotiation session in Albany, New York wherein New York agreed
to purchase any remaining land-use rights the plaintiffs still
possessed.*fn5 Parrish signed and witnessed the final 1807
agreement between the Cayugas and the defendants. Additionally,
Parrish transmitted the consideration paid by New York State
for the acquisition of the Cayuga land under the
(b) Israel Chapin Jr.
General Israel Chapin, Sr. was an appointed U.S. agent to the
Six Nations and was specifically authorized by both the
President and Secretary of War Timothy Pickering to facilitate
negotiations between the Cayugas and New York State for the
sale of the land at Cayuga Lake.*fn7 After Chapin Sr.'s death,
Pickering appointed Israel Chapin Jr. to succeed his father as
a U.S. Agent.*fn8
In claiming that Chapin, Jr. had no authority to treat with
the Indians on behalf of the federal government, the plaintiffs
submit a letter written by Pickering to General Israel Chapin,
Sr., which stated that "unless a commissioner of the U. States
holds the [Buffalo Creek] treaty neither you nor Mr. Parish are
to give any countenance to it."*fn9 The plaintiffs contend
that this proves that Chapin Sr. was himself not a federal
As further support for this contention, the plaintiffs cite
a letter Israel Chapin Jr. wrote to Pickering about the New
York treaties. This letter stated that Chapin, Jr. had
"supposed the Commissioners [present at the 1795 treaty] were
fully authorized by the Government of the United States as well
as that of their own with full powers to transact the
While the plaintiffs contend that this is proof that Israel
Chapin Jr. did not believe himself to be a federal treaty
commissioner, the defendants proffer this letter as proof that
Chapin Jr. assumed he was so authorized, and this letter was
sent merely to confirm his beliefs.
Additionally, the defendants have proffered testimony which
indicates that Israel Chapin Jr. was in attendance with the
Cayugas at Cayuga lake as an official representative of the
United States when the 1795 New York treaty was signed."*fn11
Further, Chapin's signature appears on the 1795 conveyance as
the first among ten witnesses.*fn12
Since there is conflicting testimony concerning whether
Jasper Parrish or Israel Chapin, Jr. were officials
representing the federal government at the time of the
conveyances at issue, it would be inappropriate for the court,
on a motion for summary judgment, to resolve this dispute in
favor of the moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
Accordingly, for purposes of this motion, this court will
assume that federal treaty commissioners were present at the
time of the 1795 and 1807 conveyances.
(2) Federal ratification of the 1795 and 1807 conveyances.
The mere presence of federal treaty commissioners at treaty
negotiations, or signatures of such individuals as witnesses to
conveyances of land between New York State and the Cayugas,
does not amount to federal ratification of treaties under the
Nonintercourse Act. Rather, the United States must consent to
the alienation of tribal land by way of a "treaty or convention
entered into pursuant to the Constitution." 25 U.S.C. § 177.
The parties in this action have widely differing
interpretations of this portion of the Act. The plaintiffs
maintain that the language "pursuant to the constitution"
requires all Indian land conveyances be entered into in
accordance with the treaty
making powers of the federal government as set forth in Article
II, Section 2 of the Constitution. The defendants argue that
the words in this statute are vague, and that the federal
government may ratify an Indian treaty in any manner which
demonstrates the federal government's clear and unambiguous
consent to the conveyance.
In Mashpee Tribe v. Watt, 542 F. Supp. 797 (D.Mass. 1982),
aff'd707 F.2d 23 (1st Cir. 1983), cert. denied 464 U.S. 1020,
104 S.Ct. 555, 78 L.Ed.2d 728 (1983), the court, in discussing
the requirements of the Nonintercourse Act, held that:
[u]nder the Nonintercourse Acts, the restraint on
alienation could be released only by treaty or
convention. Treaties and conventions are made by
the President with the advice and consent of the
Id. 542 F. Supp. at 805.
This interpretation of 25 U.S.C. § 177 was confirmed by the
United States Supreme Court in County of Oneida v. Oneida
Indian Nation, 470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d 169
(1985). In this case, the Supreme Court discussed, inter alia,
the requirements of federal ratification of treaties under the
Indian Trade and Intercourse Act.*fn13 The Court noted that
all conveyances of Indian land under this Act were prohibited
"except where such conveyances were entered into pursuant to
the treaty power of the United States." Id. at 231-32, 105
S.Ct. at 1250.
Additionally, since this court's decision in Cayuga II, the
plaintiffs have proffered evidence which demonstrates that
Timothy Pickering, whom the defendants concede was "the senior
federal official, under the President, in charge of Indian
affairs",*fn14 unequivocally believed that ratification under
the Nonintercourse Act required a treaty signed by the
President with the advice and consent of the Senate.*fn15
Therefore, at the present time, it is clear that the 1795 and
1807 land conveyances could only be valid if they were entered
into pursuant to the treaty power of the United States. This
power, found in Article II, Section 2 of the U.S. Constitution,
provides that "[the President] shall have the power, by and
with the Advice and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present concur. . . ." U.S.
Const., Art. II, Sec. 2.
In discussing whether the defendants have provided this court
with any evidence of such an express federal treaty, this court
has already noted that:
[a]lthough the parties are in vehement
disagreement on the issue of whether ratification
of the 1795 and 1807 conveyances occurred, they do
not appear to disagree on the issue of whether the
conveyances were accomplished by treaties made by
the President with the consent of the Senate.
Stated simply, the record is completely void of
any indication that the president made the 1795
and 1807 treaties with the consent of the Senate.
Thus, if it is ultimately decided that such
requirements must be met before a valid conveyance
of Indian land must be made, then the plaintiffs
have established a prima facie case of a violation
of the Nonintercourse Act.
Cayuga II, 667 F. Supp. at 944-45.