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CAYUGA INDIAN NATION OF NEW YORK v. CUOMO

February 15, 1990

THE CAYUGA INDIAN NATION OF NEW YORK, ET AL., PLAINTIFFS, AND THE SENECA-CAYUGA TRIBE OF OKLAHOMA, PLAINTIFF-INTERVENOR,
v.
MARIO M. CUOMO, ET AL., DEFENDANTS.



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.

BACKGROUND

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.

The plaintiffs' complaint seeks a declaration of their current ownership of and right to possess a tract of land in central New York State containing approximately 64,000 acres, an award of fair rental value for the almost two hundred years during which they have been out of possession of said land, and other monetary and protective relief.

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.

DISCUSSION

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.

25 U.S.C. § 177.

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 therein.

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 conveyances.*fn2

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 commissioner.

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, ...


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