(1) The Cayugas' title concerning the subject land.
The first aspect of these motions which this court must
consider in arriving at its decision relates to the form or
type of title held by the plaintiffs regarding the subject
There are two distinct types of title to Indian land;
"aboriginal" title and "recognized" or "reserved" title. An
Indian tribe obtains aboriginal title in land when it
continually uses and occupies said property to the exclusion of
other Indian tribes or persons. Conversely, where Congress has,
by treaty or statute, conferred upon an Indian tribe, or
acknowledged to the Indians, the right to permanently occupy
and use certain land, an Indian tribe is said to possess
recognized or reserved title in such land. Bennett County v.
United States, 394 F.2d 8, 11 (8th Cir. 1968); Miami Tribe of
Oklahoma v. United States, 175 F. Supp. 926, 936, 146 Ct.Cl. 421
Differentiating between these two forms of title is critical
in resolving the issues before this court. Since aboriginal
title is dependent upon actual, continuous and exclusive
possession of the land, proof of a tribe's voluntary
abandonment of such property constitutes a defense to a
subsequent claim concerning the land. See e.g. F. Cohen,
Handbook of Federal Indian Law (1982 ed.) at 492 and cases
cited therein.*fn2 However, if an Indian tribe possesses
recognized title in certain land, then Congress, and only
Congress, may divest the tribe of its title to such land. Cf.
Solem v. Bartlett, 465 U.S. 463, 470, 104 S.Ct. 1161, 1166, 79
L.Ed.2d 443 (1984), reh'g denied 466 U.S. 948, 104 S.Ct. 2148,
80 L.Ed.2d 535 (1984) ("only Congress can divest a reservation
of its land and diminish its boundaries. Once a block of land
is set aside for an Indian reservation and no matter what
happens to the title of individual plots within the area, the
entire plot retains its reservation status until Congress
explicitly indicates otherwise") (citing United States v.
Celestine, 215 U.S. 278, 285, 30 S.Ct. 93, 94-95, 54 L.Ed.2d
195 (1909)); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584,
587-88, 97 S.Ct. 1361, 1363-64, 51 L.Ed.2d 660 (1977); De
Coteau v. District County Ct. for Tenth Jud. Dist.,
420 U.S. 425, 444, 95 S.Ct. 1082, 1092-93, 43 L.Ed.2d 300 (1975), reh'g
denied 421 U.S. 939, 95 S.Ct. 1667, 44 L.Ed.2d 95 (1975); Mattz
v. Arnett, 412 U.S. 481, 504-05, 93 S.Ct. 2245, 2257-58, 37
L.Ed.2d 92 (1973); see also F. Cohen, Handbook of Federal
Indian Law (1982 ed.) at 493.
Central to the plaintiffs' argument that the defense of
abandonment is insufficient as a matter of law with respect to
their claims is their contention that the 1794 Treaty of
Canandaigua ("the Treaty"), entered into between the federal
government and the Six Nations, afforded the plaintiffs
recognized title to the subject land.
This Treaty contained, inter alia, the following provisions:
Peace and friendship are hereby firmly
established, and shall be perpetual, between the
United States and the Six Nations.