The opinion of the court was delivered by: McCURN, Chief Judge.
MEMORANDUM-DECISION AND ORDER
The plaintiffs and the defendants have moved for summary
judgment concerning the issue of whether defendants' legal
defense of abandonment effectively precludes the plaintiffs
from maintaining the instant action. The plaintiffs contend
that abandonment is not a viable defense to this lawsuit, and
that they can succeed in the present action even though they no
longer live on the land at issue in this dispute. The
defendants argue that the plaintiffs cannot prevail in this
action because they allegedly abandoned the land which is the
subject of plaintiffs' claims. For the reasons stated below,
this court grants the plaintiffs' motion for partial summary
judgment and denies the defendants' motion.
This is the fourth memorandum-decision and order issued by
this court concerning the present action, and familiarity with
the background of 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") and Cayuga Indian Nation of New York et al. v.
Cuomo et al., 730 F. Supp. 485 (N.D.N.Y. 1990) ("Cayuga III").
However, a brief review of the facts concerning plaintiffs'
claims is in order.
Plaintiff Cayuga Indian Nation of New York and
plaintiff-intervenor Seneca-Cayuga Tribe of Oklahoma
(collectively referred to as "the plaintiffs" or "the Cayugas")
both seek a declaration from this court concerning their
current ownership of and right to possess a tract of land in
central New York State containing approximately 64,000 acres
("the subject land"), an award of fair rental value for the
almost two hundred years during which they have been out of
possession of the subject land, and other monetary and
This court has previously held that the plaintiffs can
present evidence in support of the above claims. Cayuga I, 565
F. Supp. at 1330. In Cayuga II, this court denied both parties'
motions for summary judgment on plaintiffs' claims. Id., 667
F. Supp. at 949. In Cayuga III, this court granted the
plaintiffs' motion for partial summary judgment and held that
agreements entered into in the years 1795 and 1807 between the
plaintiffs and New York State, wherein the plaintiffs
purportedly conveyed to the State of New York the plaintiffs'
interest in the subject land, were invalid. Id., 730 F. Supp. at
By the instant motion, the plaintiffs seek an order from this
court holding that the defendants' affirmative defense alleging
abandonment is insufficient as a matter of law to preclude
recovery on plaintiffs' claims. The defendants contend that
this defense bars the plaintiffs from succeeding on their
claims against defendants, and have therefore moved for summary
judgment on plaintiffs' complaint.
(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.
The United States acknowledge the lands reserved
to the Oneida, Onondaga and Cayuga Nations, in
their respective treaties with the state of New
York, and called their reservations, to be their
property; and the United States will never claim
the same, nor disturb them or either of the Six
Nations, nor their Indian friends residing thereon
and united with them, in the free use and
enjoyment thereof: but the said reservations shall
remain theirs, until they choose to sell the same
to the people of the United States, who have the
right to purchase.
The land of the Seneka nation is bounded as
follows: [Article III continues by describing in
detail the boundaries of the Seneka nation's land,
and concludes by stating:] Now, the United States
acknowledge all the land within the aforementioned
boundaries, to be the property of the Seneka
nation; and the United States will never claim the
same, nor disturb the Seneka nation, nor any of
the Six Nations, or of their Indian friends
residing thereon and united with them, in the free
use and enjoyment thereof: but it shall remain
theirs, until they choose to sell the same to the
people of the United States, who have the right to
The United States having thus described and
acknowledged what lands belong to the Oneidas,
Onondagas, Cayugas and Senekas, and engaged never
to claim the same, nor disturb them, or any of the
Six Nations, or their Indian friends residing
thereon and united with them, in the free use and
enjoyment thereof: Now, the Six Nations, and each
of them, hereby engage that they will never claim
any other lands within the boundaries of the
United States; nor ever disturb the people of the
United States in the free use and enjoyment
In witness whereof, [Federal Treaty Commissioner]
Timothy Pickering, and the sachems and war chiefs of
the Six Nations, have ...