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THE SENECA NATION OF INDIANS v. STATE OF NEW YORK

June 21, 2002

THE SENECA NATION OF INDIANS, PLAINTIFF,
V.
THE TONAWANDA BAND OF SENECA INDIANS, PLAINTIFF-INTERVENOR, UNITED STATES OF AMERICA, PLAINTIFF-INTERVENOR, V. THE STATE OF NEW YORK; GEORGE E. PATAKI, GOVERNOR, STATE OF NEW YORK; BERNADETTE CASTRO, COMMISSIONER, PARKS, RECREATION AND HISTORIC PRESERVATION; DR. RONALD W. COAN, DIRECTOR, ERIE COUNTY INDUSTRIAL DEVELOPMENT AGENCY; JOHN CAHILL, COMMISSIONER, NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION; JOSEPH BOARDMAN, COMMISSIONER, YORK DEPARTMENT OF TRANSPORTATION; JOHN R. PLATT, EXECUTIVE DIRECTOR, NEW YORK STATE THRUWAY AUTHORITY; THE NEW YORK STATE THRUWAY AUTHORITY; ERIE COUNTY; MOORE BUSINESS FORMS CORP.; INDUCON, INC.; RADOMAT HOLDINGS, U.S., INC.; ILONA H. LANG; ROBERT W. WEAVER; AND FRANCIS B. PRITCHARD; DEFENDANTS.



The opinion of the court was delivered by: Richard J. Arcara, United States District Judge.

    DECISION AND ORDER

Table of Contents

I. INTRODUCTION

II. PROCEDURAL BACKGROUND

III. CLAIMS OF THE PARTIES

IV. STATEMENT OF FACTS

A. Historical Sources

B. The Niagara River Region

1. The Niagara River

2. The Channels and the Islands

3. The River Boundary

C. The Aboriginal Inhabitants of the Niagara Region

1. The Neutrals

2. The Wenros and the Eries

3. The Senecos

4. Defeat of Wenros, Neutrals and Eries by the Senecas

D. French Control of the Niagara Region

1. French Plans to Control the Niagara Region

2. The Fur Trade

3. From La Salle to Denonville

4. Denonville's Expedition Against the Senecas

5. The First Fort at Niagara

6. King William's War (1689-1701)

7. The French Return to Niagara (1701-1710)

8. Joncaire and Queen Anne's War (1702-1713)

9. French Use and Occupancy of the Niagara Region Extended

10. The French Fortify Niagara

11. British Reaction to Fort Niagara

12. King George's War (1745-1748)

13. Fort Little Niagara

14. The Ohio Expedition and the French and Indian War

E. British Rule of the Niagara Region

1. British Indian Policy and the Royal Proclamation of 1763

2. Pontiac's Rebellion and the 1764 Treaties of Peace

3. Daniel Joncaire-Chabert's Claim to the Niagara Islands

4. The 1768 Treaty of Fort Stanwix

F. The Niagara Region during the Revolutionary War

G. The United States' Early Mechanisms for Dealing with the Indians

H. The Articles of Confederation

I. Recognition of New York's Boundaries

J. The 1783 Treaty of Pairs Ending the Revolutionary War

K. The 1784 Treaty of Fort Stanwix

1. Proposal for Treaty between the United States and the Iroquois

2. New York's Attempt to Treat with the Iroquois

3. The Confederal Treaty of Fort Stanwix

L. Seneca Discontent with the 1784 Treaty of Fort Stanwix

M. The 1786 Hartford Compact

N. The 1789 Treaty of Fort Harmer

O. The Constitution and the Nonintercourse Act

P. Geographical Error in the 1784 Treaty of Fort Stanwix

Q. Continued Seneca Dissatisfaction

R. The 1794 Treaty of Canandaigua

S. New York Advised that Federal Approval Required for Purchase of Indian Land

T. New York's 1802 Purchase of One-Mile-Wide Strip

U. New York's 1815 "Purchase" of the Niagara Islands

V. ICC Proceedings

V. DISCUSSION

A. Summary Judgement Standard

B. Elements of Plaintiffs' Nonintercourse Act Claim

C. Law of Indian Land Tenure

D. Canons of Indian Treaty Construction

E. The 1764 Treaties of Peace

1. The 1764 Treaties Extinguished Seneca Title to the Niagara Islands
2. The 1764 Treaties Did Not Simply Recognize Great Britain's Right of Preemption

3. The 1764 Treaties Did Not Violate the 1763 Royal Proclamation

4. The Land Grants in the 1764 Treaties Were Not Revoked by the 1768 Treaty of Fort Stanwix
5. Great Britain's Title to the Niagara Islands Passed to New York upon the Revolution

6. The Court's Conclusions are Consistent with Those of the ICC

F. The 1784 Treaty of Fort Stanwix

1. The 1784 Treaty of Fort Stanwix Extinguished Seneca Title to the Niagara Strip and the Niagara Islands
2. As a Result of the 1784 Treaty, New York, Not the United States, Obtained Fee Simple Absolute Title to the Niagara Strip and the Niagara Islands
a. The 1784 Treaty Did Not Pass the Seneces' Right of Possession to the United States
b. The 1784 Treaty Must Be Construed Consistently with the Articles of Confederation
c. The Continental Congress Did Not Intend to Infringe or Violate New York's Preemption Rights or Preexisting Title by Entering into the 1784 Treaty
3. Removal of the Senecas Was Not Required in Order to Effect an Extinguishment of Aboriginal Title under the 1784 Treaty of Fort Stanwix
4. The Constitution's Supremacy Clause Does Not Affect the Proper Construction of the 1784 Treaty of Fort Stanwix

G. The 1794 Treaty of Canandaigua

1. The 1794 Treaty of Canandaigua Cannot be Interpreted to Have Included the Niagara Islands
2. New York Retained Its Title Because It Was Never Paid Just Compensation

H. New York's 1815 "Purchase" of the Niagara Islands

I. The Interests of Justice Support the Court's Conclusion

VI. SUMMARY AND CONCLUSION

MAP APPENDICES

I. INTRODUCTION

This action involves an Indian land claim under the Trade and Intercourse Act, 25 U.S.C. § 177 (the "Nonintercourse Act" or "Act) Plaintiff Seneca Nation of Indians (the "SNI", and plaintiff-intervenors Tonawanda Band of Seneca Indians (the Tonawanda Band") and the United States of America,*fn1 claim that an 1815 conveyance in which the State of New York purportedly purchased Grand Island and other islands in the Niagara River (hereinafter referred to collectively as the "Niagara Islands" or the "Islands") from the historic Seneca Nation of Indians*fn2 (hereinafter referred to as the "Seneca Nation" or the senecas") was invalid, because there was no United States treaty commissioner present at the negotiations and the agreement was never ratified by the United States Congress as required by the Act.

Currently before the Court are the parties' cross-motions for summary judgment on the issue of liability under the Nonintercourse Act. For the reasons stated herein, the Court finds that the purported conveyance of the Niagara Islands to New York in 1815 did not constitute a violation of the Act because at the time of the conveyance, the Islands were not Seneca Nation tribal land protected by the Act. Pursuant to various pre-1815 treaties, any title to the Islands that the Seneca Nation may have once held was extinguished, resulting in New York obtaining full fee title to the Islands Prior to the purported conveyance in 1815. Thus, plaintiffs cannot succeed on their Nonintercourse Act claim as a matter of law.

Accordingly, the Court: (1) denies plaintiffs' motions for summary judgment: (2) grants defendants' motion for summary judgment; and (3) dismisses the case in its entirety.

II. PROCEDURAL BACKGROUND

The SNI filed this suit in 1993. The Tonawanda Band intervened a plaintiff. Both the SNI and the Tonawanda Band are Indian nations whose tribal status is recognized by the federal government and which have a trust relationship with the United States. The SNI and Tonawanda Band are both recognized by the United States as successors-in-interest to the historic Seneca Nation.

The Plaintiff Tribes allege that New York's acquisition of the Niagara Islands by purchase in 1815 violated the Nonintercourse Act and therefore is void. The Plaintiff Tribes seek to establish their continuing interest in the Islands.

The defendants in this case include the State of New York, the New York State Thruway Authority,*fn3 various State officials, Erie County*fn4 and all other landowners on the Niagara Islands.*fn5 Defendants asserted various counterclaims and affirmative defenses, including latches, statute of limitations, political question, nonjusticabilty abatement, adverse possession, "surrounded by settlements," accord and satisfaction, estoppel, waiver and unclean hands.

The Plaintiff Tribes moved for certification of a defendant class and their motion was granted in May 1994. The Plaintiff Tribes also moved to dismiss defendants' counterclaims and affirmative defenses and that motion was also granted. The New York State Thruway Authority eventually moved to dismiss the complaint based on the Eleventh Amendment.

In September 1996, the Court stayed proceedings in this case pending the Supreme Courts decision in the case of Idaho v. Coeur d' Alene Tribe of Idaho. 521 US. 261 (1997), In Coeur d' Alene, the Supreme Court held that the Eleventh Amendment bars an Indian tribe from bringing a quiet title action against a state or state officials in federal court.

In March 1998 the United States moved to intervene as a plaintiff in this case and the Court granted the motion. Defendants moved to discuss the United States' complaint-in-intervention on the ground that the statue of limitations in 28 U.S.C. § 2415 precluded the action. The State of New York and the New York Thruway Authority (the "State defendants") also moved on Eleventh Amendment grounds to dismiss the Plaintiff Tribe's claims. The Court denied both motions. The State defendants filed an interlocutory appeal of the Courts order denying dismissal on Eleventh Amendment grounds. The Second Circuit Court of Appeals affirmed. See Seneca Nation of Indians v. New York, 178 F.3d 95 (2d Cir. 1999). The State defendants filed a petition for certiorari, which the Supreme Court denied in January 2000. See New York v. Seneca Nation of Indians, 528 U.S. 1073 (2000).

While the case was on appeal and immediately thereafter, the parties entered into lengthy settlement discussions. The settlement discussions ultimately proved unsuccessful and the parties cross-moved for summary judgment on the issue of liability. Following extensive briefing and oral argument, the matter was submitted for decision in March 2001.

III. CLAIMS OF THE PARTIES

Plaintiffs contend that a conveyance of the Niagara Islands by the Seneca Nation to the State of New York in 1815, violated the Nonintercourse Act. They claim that in 1815, the Seneca Nation had both aboriginal title to the Niagara Islands and recognized title granted to it by the United States pursuant to the 1794 Treaty of Canandaigua. Thus, plaintiffs argue, in 1815, the Niagara Islands were tribal land for purposes of the Act, and as such, federal approval was required before they could be sold. Plaintiffs claim that, because such federal approval was lacking, the 1815 conveyance is void under the Act and the Plaintiff Tribes therefore retain title to the Islands.

For purposes of the summary judgment motion, defendants do not dispute that there was no federal approval of the 1815 conveyance. Instead, defendants contend that no such approval was required because in 1815. the Islands were not tribal land subject to the requirements of the Nonintercourse Act. Defendants argue that as the result of various treaties, discussed below, the Senecas held neither aboriginal nor recognized title to the Niagara Islands in 1815, and that New York already held full fee title thereto.

Thus, the question before the Court is whether in 1815, the Seneca Nation actually held either aboriginal or recognized title to the Niagara Islands, or whether, instead, the State of New York already held full fee title to the Islands as a result of prior extinguishment of Seneca title.

IV. STATEMENT OF FACTS

A. Historical Sources

In order to understand fully the parties' respective claims in this case and the context in which these claims arise, it is necessary to examine in some detail the historical background of the Niagara River region, the relationship of the aboriginal inhabitants to the region, and the development of Indian policy, first by France and Great Britain and then by the United States.

Because of the important role of the Niagara River in travel by water between the lower and upper Great Lakes, and the role of the Niagara peninsula. located west of the River in present day Ontario, Canada, in travel by land between New York and Upper Canada, the Niagara region was traveled by European explorers, traders and missionaries well before most of the rest of the western New York area. Accordingly, the story of the Niagara region is a long and well-documented one.

For the most part, the relevant historical facts in this case are over 200 years old and are not in disputed. In that regard, the parties have entered into a Joint Stipulation of Undisputed Facts ("Joint Stip.").

Additionally, much of the region's history is documented in a report prepared in the 1960's for the United States Department of Justice by Donald H. Kent ("Kent Rep."). See Defendants' exhibit ("Defs. Ex.") 12. The United States engaged Kent to prepare this history of the Niagara region — and in particular the Senecas' relationship to the region — for use in proceedings before the Indian Claims Commission ("ICC").*fn6 Much of the following history of the area is taken from Kent's report.

The Court also relies extensively on the United States' Request for Findings of Fact in both the ICC case involving the Niagara Islands ("ICC Br."), see Defs. Ex. 25, and the ICC case involving the so-called Phelps Gorham Purchase ("PG Br."). See Defs. Ex. 23. These documents relied extensively on the Kent Report, as well as other primary sources, the authenticity of which is undisputed.*fn7

B. The Niagara River Region

1. The Niagara River

The Niagara River is actually a strait that connects Lakes Erie and Ontario. The River is comprised of waters flowing out of Lake Erie at present-day Buffalo, New York, running in a northerly direction for about 34 miles, and ending there with its waters flowing into Lake Ontario. See Appendix A.*fn8 From the outlet of Lake Erie, the River is navigable for about 20 miles to the upper rapids about one-half mile above Niagara Falls. After it plunges over Niagara Falls into a deep gorge, the River flows turbulently for about 7 miles though rocky cliffs to present-day Lewiston, New York, where it flows as a quiet river for about 7 miles to Lake Ontario. The River descends about 10 feet from Lake Erie to the upper rapids, 50 feet from the heed of the rapids to the Falls, 167 feet over the Falls, 98 feet in the lower rapids, and less than a foot in the final stretch from Lewiston to Lake Ontario — a total descent of about 326 feet. The River is comprised of fresh water and is unaffected by titles.

Despite the impediment of the Falls and rapids, the Niagara River and the land adjacent thereto have been an important avenue of communication since and prior to the earliest European contact with the Great Lakes region. At Lewiston on the east side of the River, a trail or "portage" extended to the south over the Niagara Escarpment*fn9 to a point about one-half mile above the Falls at the beginning of the rapids, in the present-day City of Niagara Falls. See Appendices B and C. This portage was used by Indians and early Europeans traveling the Great Lakes as an overland route to bypass the Falls and rapids.

2. The Channels and the Islands

About 5 miles north of Lake Erie the Niagara River divides into two channels, forming between them Grand Island. See Appendices A, B and C. This is the largest island in the Niagara River and encompasses approximately 19,000 acres of land. After passing Grand Island, the two channels again unite and resume the River's flow toward the Falls about 3 miles north.

Just prior to going over the Falls, the waters are again divided by a small island known as Goat Island. As a result, the Falls are divided into two separate falling waters, one west of Goat Island (the Canadian or "Horseshoe" Falls) and the other northeasterly of that Island (the American Falls). About 94% of the water flows over the Canadian Falls.

Besides Goat Island and Grand Island, there are about forty other islands situated between the Falls and Lake Erie. Some of these are larger than Goat Island, some are smaller. All of these together, however, contain a small fraction of the acreage contained in Grand Island. Today, approximately 18,000 people inhabit the Niagara Islands.

3. The River Boundary

Besides its various utilitarian purposes and great beauty, the Niagara River serves as part of the boundary line between the United States and Canada. This came about by virtue of the Treaty of Paris between the United States end Great Britain on September 3, 1783, ending the Revolutionary War. The boundary between the United States and British Canada established in that Treaty, however, was very long and much of it was not described in detail. This was true of the part of the boundary formed by the Niagara River and early writers usually believed that the international boundary cut through the center of Grand Island with half of that island belonging to the United States and half to Great Britain. ICC Br. at 6. However, in 1822, it was finally determined that the westerly channel was the main channel of the River and that the center of that channel was the actual boundary line between the two countries. This confirmed that all of Grand Island was part of the State of New York.

C. The Aboriginal Inhabitants of the Niagara Region

1. The Neutrals

At the time of the first European contact with the area, the land portion of the Niagara region was occupied, at least in part, by the Neutral Nation of Indians, an Iroquoian-speaking group.*fn10 During the first half of the seventeenth century, the Neutrals' territory encompassed the area immediately west of Lake Ontario and both sides of the Niagara River. See Appendix D. During that time, the Neutrals were one of the largest Indian groups in the Niagara region. Kent Rep. at 5. By 1641, the French were trading directly with the Neutrals.

Archaeological evidence confirms that the Neutral Indians once lived on Grand Island. Archaeologists have discovered a Neutral cemetery on Grand Island dating from 1635 to 1645. It contained at least 60 burial sites. Thus, it is likely there was a semi-permanent Neutral settlement on Grand Island or nearby. Several other archaeological sites on the east side of the River have also been identified as Neutral. In contrast, there is no archaeological evidence that the Senecas were ever actually present on Grand Island.

2. The Wenros and the Eries

To the east of the Neutral Nation, along the south shore of Lake Ontario, somewhere between the Niagara and Genesee Rivers,*fn11 lived the Wenros. See Appendix D. They are sometimes regarded as a subgroup or component of the Neutral Nation, but more properly seem to have been a separate group allied or associated with the Neutrals.

To the south of the Neutrals and southwest of the Wenros were the Eries. The Eries occupied land south of the present-day City of Buffalo along the southeast shore of Lake Erie. Id.

3. The Senecas

In aboriginal times, the Senecas comprised the westernmost tribe of the Iroquois Confederacy but were still located a considerable distance to the east of the Niagara River.*fn12 See Appendices D and E. The Iroquois initially consisted of five nations: the Senecas, the Cayugas, the Onondagas. the Oneidas and the Mohawks. In the first part of the eighteenth century, the Iroquois were joined by the Tuscaroras and were then often referred to as the Six Nations of the Iroquois or simply the Six Nations.

At the time of first European contact, the villages of the Senecas were all east of the Genesee River, extending eastward from the Genesee Valley to Cayuga territory at the watershed between Seneca Lake and Cayuga Lake. The Senecas, like the rest of the Iroquois. did not lead a nomadic existence. They maintained substantial permanent settlements, raised agricultural crops in the vicinity of their villages, and hunted widely for meat and pelts throughout an extensive area extending on both sides of Lakes Erie and Ontario. In addition to hunting, the Senecas fished extensively in Lakes Erie and Ontario, and for such purposes maintained temporary villages at generally permanent locations adjacent to the Lakes and the Niagara River. Other Indians, however, both Iroquois and nonIroquois, also used the Niagara River and adjacent land as an avenue of communication and transportation.

4. Defeat of Wenros, Neutrals and Erie, by the Senecas

At some point prior to 1638, the Neutrals terminated their relationship with the Wenros, leaving the Wenros vulnerable to enemy attack. In 1638, the Senecas defeated the Wenros and drove them from their territory. The Wenros eventually took refuge among the Huron Indians, who were located in present-day southern Ontario, Canada.

A similar fate befell the Neutral Nation. The Neutral Nation was named by the French because they kept themselves "equally in peace with both" the Hurons and the Iroquois, even though the Neutral country was "the ordinary land route" between these two hostile groups. ICC Br. at 12. Though strong themselves, the Neutrals never attacked either the Hurons or the Iroquois. who were constantly at war with each other. As the warfare between the Hurons and Iroquois intensified in the 1640's, however, the Neutrals found it increasingly difficult to avoid involvement. By 1649, the Neutrals found themselves in open warfare against the Senecas. The war raged evenly for several years, until the Senecas were able to obtain the assistance of the Mohawks. In 1651, with the aid of the Mohawks, the Senecas defeated the Neutral Nation. The remnants of the Neutrals scattered to the north and south, while those captured by the Iroquois were either killed or incorporated by adoption into various nations. Similarly, between 1654 and 1680, the Senecas defeated the Eries and drove them from the Niagara region.

After the withdrawal of the Wenros and the defeat of the Neutrals and the Eries in the 1650's, the territory between the Genesee River and the Niagara River remained an unoccupied wilderness. Kent Rep. at 15-19. According to historians, the Senecas may have had some small villages as bases for hunting and fishing, but there was no permanent occupancy of the country west of the Geneses River for almost a century. Id. Historians have theorized that the reason for this might have been that the area was too vulnerable to attack from enemies of the Senecas. Id. During that time, the Senecas were under constant attack by tribes from the west and the south. According to Kent:

[The] expulsion or destruction of the original inhabitants [of the Niagara region], which was later to be turned a "conquest" when the British were seeking a basis for claiming the lands around the Great Lakes. was not followed by any appreciable resettlement or use of the Niagara land by the Senecas, and it does not appear that they made any effort to keep others away. On the contrary, the Niagara remained a relatively deserted locality for many years, open to all corners, Indian or white.

Id. at 164 (footnotes omitted). Thus, until the time of the Revolutionary War, it appears that the main body of the Senecas lived between the Genesee River and Seneca Lake. Id.; see also Appendices D and E.

D. French Control of the Niagara Region

1. French Plans to Control the Niagara Region

The French presence in the Niagara region began in the seventeenth century. Recognizing the strategic importance of the Niagara region, the government of French Canada, or New France, began to consider fortifying and controlling the Niagara portage. In 1873, Count Frontenac, Governor of French Canada, proposed that a fort be bulk at the mouth of the Niagara River, and that a vessel be built on Lake Erie in order to extend French control of the Great Lakes.

These plans for the expansion of New France began to take shape in the fall of 1678 when the explorer Rene Robert Cavilier, Sieur de La Salle sent an advance party to establish a post and prepare for building a ship above Niagara Falls to sail the upper Lakes. With his advance party was Father Louis Hennepin, a Franciscan missionary, whose memoirs, A New Discovery of a Vast Country in America, indicate that there were but a few Senecas in the Niagara area at that time, who seemed to be there only on temporary fishing, trading or hunting expeditions.

In 1678, La Salle traveled to the present site of Lewiston, New York, where his party built a palisaded storehouse, the first European structure in the Niagara region. That same year, La Salle discovered a Seneca fishing village at the mouth of the Niagara River. The nearest permanent Seneca village, however, was five days' journey to the east.

In 1679, La Salle established a shipyard at the mouth of Cayuga Creek on the Niagara River above Niagara Falls and began building a ship. See Appendices B and C. La Salle employed two Indians from a western Indian tribe to hunt for his party. They were able to operate without any interference from the Senecas. During the construction of the ship, La Salle had to leave the Niagara area in order to get supplies and try to satisfy his creditors. Before leaving on February 1, 1679, he gave orders for the building of a fort at the mouth of the River, to be called Fort Conty or Conti. See Appendix C. A small fortification was built, but was accidentally destroyed by fire so that only a storehouse was left.

At this time, the Iroquois were coming to the Niagara region from a distance to trade with the French, bartering their furs for trade goods. In August 1679, La Salle returned to the Niagara River and found that his ship, the Griffon, was built and ready to sail. After exploring farther west in his ship, La Salle returned east to Fort Frontenac in present-day Quebec, Canada. In the spring of 1681, Father Hennepin, returning from his missionary travels in the far West, came to the Niagara River and found Fort Conty deserted and the seasonal Seneca fishing camp unoccupied.

2. The Fur Trade

While Spain and Portugal aggressively exploited their new world colonies for gold, France and England early recognized an entirely different valuable commodity in the Americas to the north. This was the fur trade. The demand for furs In Europe was great. and since the northern woods abounded with fur-bearing animals, there remained only the job of gathering the furs and transporting them to Europe. The most effective way of doing this was with the help of the various Indian tribes. The Indians trapped the animals and brought the pelts in to trade for other wares. Thus, there grew a valuable fur trade-valuable to both the Indians and the French and English, each of whom vied to dominate the trade.

As time went on, the fur-bearing animals in New York became scarce and the Iroquois recognized that they would soon be left out of the fur trade. Seeing their main trading resource disappearing, the Iroquois began to develop the role as middlemen between the western Indian fur gatherers and the European fur buyers in the East. France and England, competing for the western fur market, needed avenues to and from the western areas. The Niagara region was the all-important link to the West. Thus, control of the Niagara region became crucial to both France and England.

3. From La Salle to Denonville

Following La Salle's abandonment of the Niagara region, the area was visited repeatedly in succeeding years by French traders and soldiers going to and returning from posts further west. The area was also visited by various transient Indian tribes, including large parties of western Indians coming east to reinforce the French in their wars with the Senecas and other Iroquois which broke out in 1684.

The British also were becoming increasingly aware of the Niagara River and the portage, and of the fact that this area was a key to the interior of the continent. In May 1686, Governor Thomas Dongan of the New York Colony wrote to the Marquis de Denonville, the new Governor of French Canada, protesting about rumored intentions of the French to build a fort at the mouth of the Niagara River. By February 1887, Dongan was urging the British to build a fort at the same location.

4. Denonville's Expedition Against the Senecas

The increasing number of British trading expeditions through the area alarmed the French. Even while renewing their war with the Senecas, the French decided to fortify the post at the mouth of the Niagara against possible British attack.

5. The First Fort at Niagara

After defeating the Senecas, Denonville moved to the mouth of the Niagara River and there constructed a substantial log fort which was called Fort Denonville. The Fort fell upon hard times however, and was abandoned the following year. In 1690, Governor Andros of the New York Colony protested the building of a French fort "at Oniagra (Niagara) in the Senneka's [sic] Country." Joint Stip. at ¶ 31.

6. King William's War (1689-1701)

In 1689, following the assent of King William III to the throne of England in 1688, hostilities broke out between France and England. Upon learning of the hostilities between the French and the British, the Iroquois sided for the most part with the British and began to attack the French. They repeatedly raided French settlements on the St. Lawrence River near Montreal, while the French successfully invaded and ravaged the Mohawk country in 1693, and the Onondaga and Oneida country in 1696. The war took a large toll on the Iroquois and they eventually entered a peace treaty with the French in 1701.

From 1889, the beginning of King William's War, until the peace treaty between the French and the Five Nations of Iroquois in 1701, the Niagara region continued to be an unguarded gateway open in both directions. ICC Br. at 25. The Senecas used it in attacking the western tribes allied with the French, and the western tribes also used it in attacking the Senecas.

The Treaty of Peace of 1701 provided that the Iroquois would remain neutral in any further wars between the French and the British. This was a significant concession to the French, and by the same token a disappointment to the British in New York, who not only lost an ally, but also lost control of and any claim to lands which the Iroquois might claim. In an effort to avoid this result, the British took 8 deed from the Iroquois that allegedly ceded them all the Iroquois title in a vast area of land that included the Niagara region.

7. The French Return to Niagara (1707-1710)

It was not long after King William's War before the French were again using the Niagara region regularly. During that time, there was a steady flow of French officers, soldiers, settlers and their families over the Niagara portage to Detroit and other western posts. Indians of various western tribes also continued to come and go by way of Niagara usually for the purpose of trading, but occasionally with hostile intentions toward the Senecas. The French were using and occupying the Niagara region without a fort and felt no particular urgency about refortifying the Niagara portage.

8. Joncaire and Queen Anne's War (1702-1713)

The gradual process through which the French established firm control of the Niagara portage following the peace of 1701 was carried out by several individuals who enjoyed particularly close and friendly relations with the Iroquois and had been adopted into various tribes. The most important of these individuals was Louis Thomas Joncaire, Sieur de Chabert, the dominant figure in the Niagara region for more than thirty years.

Joncaire was a French-born soldier who was captured in the 1890's by pro-English Senecas and adopted by his Seneca captors. Following the peace of 1701, when the Iroquois were formally declared neutral in the rivalry between England and France, Joncaire began promoting Seneca-French rapprochement.

In 1704, Joncaire sent word to the French Governor that the British had called a meeting of the Iroquois at Onondaga in order to counteract French influence among them, and also to persuade them to let the western Indians pass through their country and trade at Albany. This alarmed the French for it was important to hold the Iroquois to their promise of neutrality, now that war had broken out again between France and Great Britain — the War of the Spanish Succession or Queen Anne's War. The French Governor ordered Joncaire to attend the meeting at Onondaga, where he successfully persuaded the Iroquois to remain neutral. Down to the end of Queen Anne's War in 1713, the British repeatedly attempted to get the Iroquois to join in hostile action against the French, but the Iroquois remained neutral.

9. French Use — Occupancy of the Niagara Region Extended

Joncaire's influence over the Senecas had been an important factor in keeping them neutral and friendly to the French during Queen Annes War. It was to be equally effective in consolidating the French control of the Niagara River portage.

In June 1708, Joncaire met with French officials at the mouth of the Niagara River at the site of the former Fort Denonville. There they discussed the possibility of a new military post being constructed. Joncaire stated the advantages to be derived from building and garrisoning a fort at that location. He was sure that if the fort were built, many Iroquois would move from the east and establish villages around the fort, thereby reducing the opportunity for British influence. Plans for a fort, however, were delayed.

In the early part of the eighteenth century, the Niagara River portage was a well-established operation. Both European traders and Indians used the portage regularly during this time period. As a supplement to a French troop garrison in the Niagara region, local help was required. Joncaire proposed that the pro-English Senecas be allowed to work on the Niagara portage and told French officials that the Senecas would be under his personal influence and control. He pointed out the benefits to be derived from having at least some Iroquois on the French side. Portaging supplies and pelts between the River below the Falls and the River above provided work to many Senecas. These Senecas lived near their work at the toot of the portage in camps and cabins along the road.

During this time, the British constantly complained to the French about French trespass on territory which the British claimed belonged to them because the Senecas and other Iroquois were British subjects. The French replied that the Indians believed themselves to be independent and that the French right to the Niagara region had been established by actual occupation by La Salle and Denonville.

10. The French Fortify Niagara

With continued efforts by the British to secure a foothold in the Niagara region, the French decided to augment the Royal Store with additional fortifications. In 1726 and 1727, the French constructed Fort Niagara at the mouth of the Niagara, at the same site where Fort Denonville had been erected. See Appendices B and C. By the building of Fort Niagara, the French established open military control of the Niagara River and the Niagara portage, and thereby made more effective their control and supervision over the Niagara region.

Fort Niagara served several important functions for the French. It protected and regulated the movement of traders, settlers, military forces and Indians over this important avenue of communication between Lake Ontario and the upper Great Lakes. With the aid of sailing vessels on Lake Ontario, it sought with varying success to prevent both Indians and French traders from taking their furs and skins to the British post at Oswego, New York, located at the eastern end of Lake Ontario, and it was a barrier to keep British traders from penetrating to the upper Great Lakes region. Its own trading store was intended to intercept the trade of the Indians coming from the west and to attract the trade of the Senecas to the east. It was also a base for various French military expeditions.

In relation to the Senecas, Fort Niagara was the center from which the French influenced and "overawed" them. ICC Br. at 35. Fort Niagara and the portage road which it guarded attracted Senecas from their villages in the Genesee Valley. The Senecas sought to profit by carrying goods over the portage and to maintain friendly relations with their powerful new neighbor. The Seneca understood that so long as they remained on good terms with the French and avoided warring on France's Indian allies, the Fort served to protect them also against possible raids from the west.

As noted, a few Senecas had begun to profit by carrying goods for French traders and military forces over the Niagara portage early in the 1700's, and by 1718 this work was sufficiently steady and productive to provide employment for a little village of about ten cabins which was reported there in that year. In fact, from 1720 until 1750 the few Frenchmen who resided at Niagara were readily outnumbered by the Senecas who had come to live there in the hope of profiting by supplying the French with food and labor.

11. British Reaction to Fort Niagara

The construction of Fort Niagara by the French caused the British great alarm, The British were concerned that western Indians wishing to bring furs to Fort Oswego and Albany to trade via Lake Erie might be intercepted at the Niagara portage and convinced to trade with the French. In the fall of 1727, the British summoned representatives of the Iroquois to Albany and inquired into their reasons for allowing the French to build the fort at Niagara. The British were unable, however, to convince the Iroquois to take any action against the French. In the end, the British took a deed from the Iroquois which ceded any title they might have had to certain lands, including the Niagara region.

Joncaire died at Fort Niagara on June 29, 1739. He was succeeded by his sons, Philippe and Daniel de Joncaire-Chabert.

12. King George's War, (1745-1748)

In 1745, with the outbreak of King George's War between the French and the British, the British Governor, George Clinton, recommended that a fort be built in the Seneca country, that two or three vessels be built, and that Fort Niagara be captured. The British hoped that by capturing Fort Niagara it would bring the Iroquois firmly onto the British side. The Iroquois, however, seeing that neutrality continued to serve their best interests, were still insistent that neither the French at Fort Niagara nor the British at Fort Oswego be attacked. The Senecas lived east of Fort Niagara and west of Fort Oswego and could trade at either place. To them, Fort Niagara was no obstacle, but rather a place to gain profitable employment by carrying on the portage.

During King George's War, goods became scarcer and higher in price at French posts, and consequently trade at Fort Niagara fell off. The Indians wanted more in return for their furs and could secure higher payment from the British at Fort Oswego.

13. Fort Little Niagara

In order to ensure even better control of the fur trade and of the Indians, the French decided to build, in addition to Fort Niagara, a fort at the landing above Niagara Falls. In 1750 and 1751, the French, under the direction of Joncaire's son, Daniel, built Fort Little Niagara, later called Fort Schlosser by the British, a mile and a half above the Falls. See Appendices B and C. Daniel Joncaire-Chabert used all his talents of persuasion to keep the Indians from going to Fort Oswego to trade with the British and was generally successful in this endeavor,

During this time, the French also worked to improve the portage route. The French constructed a new road in 1752, that made it easier to haul goods over the Niagara Escarpment.

14. The Ohio Expedition and the French and Indian War

In 1753, the Niagara region bustled with activity in preparation for a great French expedition being readied to occupy and fortify the Ohio country. Between 1753 and 1754, thousands of soldiers and craftsmen, and tons of supplies and equipment, moved through the Niagara region westward toward the Ohio River Valley. The French plan was to conquer that area and to build tour forts there. In 1754, the Ohio expedition ultimately led to open warfare between France and Great Britain. This has commonly been referred to as the French and Indian War.

The intensive use of Fort Niagara as a military base and of the Niagara portage as an important military road was continued by the French until 1759. From 1753 to 1759, Fort Niagara was greatly improved, enlarged and strengthened. As a result, France dominated and controlled the Niagara region during this period.

Despite initial successes against the British, including the capture and destruction of the British fort at Oswego, France's domination of the Niagara region was soon to end. In 1759, the French were on the defensive on all fronts. The British had raided and destroyed Fort Frontenac in August 1758, making it more difficult to send supplies to Fort Niagara. Fort Duquesne, at the forks of the Ohio River near present-day Pittsburgh, Pennsylvania, was captured by the British in November 1758. In December 1758, the British planned an expedition against Fort Niagara. Sir William Johnson, who was second-in-command of the proposed expedition under Brigadier General John Prideaux, was able to win over the Iroquois and gain their assistance and support. He was even able to win over the "Chenossia Indians," or Genesee Senecas, who had been strongly under French influence. Now that the French were losing, the Genesee Senecas agreed to join the alliance against them. After a long siege, Fort Niagara surrendered to the British on July 25, 1769.

French rule on the Niagara River had ended and was succeeded by British rule. The surrender of Fort Niagara was soon followed by the surrender of Quebec in September 1759, and then by the surrender of all of Canada in September 1760. In 1783, France and Great Britain entered into the Treaty of Paris whereby France ceded to Great Britain all its claims to territories east of the Mississippi River.

E. British Rule of the Niagara Region

1. British Indian Policy and the Royal Proclamation of 1763

The British Crown, having conveyed the fee title to land to the colonists by various charters and patents, initially permitted the colonists to purchase and extinguish Indian title, either individually or through the colonies. Many of the colonies, in order to minimize disputes with the Indians, enacted laws requiring colonial approval for individually negotiated land cessions. Unauthorized and unrestricted encroachments on Indian lands continued, however, causing military frictions with the Indians.

The Crown eventually recognized the need to devise plans for a comprehensive, centralized Indian policy. In 1754, for example, the Lords of Trade in England proposed a plan by which "the sole direction of Indian affairs [would] be placed in the hands of some single person." Robert N. Clinton & Margaret Tobey Hotopp, Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims, 31 Me. L. Rev. 17, 21 (1979) (quoting 6 Documents Relative to the Colonial History of the State of New York 903-95 (E. B. O'Callaghan ed. 1855)).

At the outbreak of the French and Indian War in 1754, the British government tried to assume direct control over colonial dealings with the Indians. Felix S. Cohen, Handbook of Federal Indian Law 57 (1982 ed.). Two superintendents of Indian affairs were appointed, one each for the northern and southern colonies. The superintendents were, in effect. ambassadors whose duties consisted of negotiating treaties, reporting events to the home government, and keeping peace generally among the Indian tribes and the border settlers.

The efforts of the Crown culminated on October 7, 1763 with the issuance of the Royal Proclamation by King George III. The 1763 Proclamation forbade the purchase or settlement of Indian lands west of the crest of the Appalachian Mountains by anyone, including the colonial governors without permission of the Crown.*fn13 See Clinton & Hotopp, supra, 31 Me. L. Rev, at 22; see also Appendix F. It also reaffirmed the requirement of imperial approval prior to the issuance of patents to Indian lands lying east of the demarcation line. See Clinton & Hotopp, supra, 31 Me. L. Rev, at 22. The 1763 Proclamation was the first attempt to delineate an "Indian country" by drawing a boundary line separating Indians and settlers.

During the pre-revolutonary period, the colonies were expanding their settlements and trying to consolidate their charter land claims. They saw the Proclamation of 1763 and Great Britain's centralization of Indian affair an attempt to give favored traders and land speculators western lands to the colonies detriment. Oneida Indian Nation of New York v. New York, 649 F. Supp. 420, 425 (N.D.N.Y. 1986), aff'd, 860 F.2d 1145, 1167 (2d Cir. 1988), cert. denied, 493 U.S. 871 (1989). The colonists considered the Proclamation of 1763 an unwarranted intrusion into colonial affairs. Great Britain's centralization of Indian affairs eventually became one of the grievances which led to the American Revolution. Id.

2. Pontiac's Rebellion and the 1764 Treaties of Peace

Following the French and Indian War, part of the Senecas became hostile toward the British and there was a gradual development of unrest in the years after 1760. Sir William Johnson, now Superintendent of Indian Affairs for the Northern Colonies, was successful in containing the unrest until 1763, when actual open warfare broke out. Johnson managed to hold five and a half of the Six Nations of Iroquois friendly to the British, but the western Senecas allied themselves with the western Indians attacking British posts. This insurrection is commonly referred to as "Pontiac's Rebellion" or "Pontiac's War."

There was no attack on Fort Niagara by the Indians, but there was a damaging attack on a British army convoy passing over the Niagara portage on its way to send reinforcements and supplies to Fort Detroit, which was under siege by the Ottawa Indians. On September 14, 1763, some 500 Senecas hiding in ambush beside the Niagara portage drove a number of British soldiers and a convoy of wagons over a precipice and down into the Niagara River Gorge onto the jagged rocks below. It was a bloody fight and the place is still called "Devils Hole" or "Bloody Run" because of it. See Appendix C.

At the time of the attack at Devil's Hole, the British did not know which Indians had attacked them, ICC Br. at 48-49. In fact, they speculated that it might have been Mississauga Indians, who were also present in the area at that time, Id. It was not until later that the British found out that the western element of the Senecas was involved in the attack.

After learning that the Senecas were responsible for the attack at Devil's Hole, the British prepared to retaliate against them unless they could be brought to seek terms of peace. Sir William Johnson applied pressure to the other five nations and the Senecas that remained friendly to the British so that they, in turn, would apply pressure to the western Senecas to seek peace.

In April 1764, delegates of the Seneca Nation and Sir William Johnson on behalf of Great Britain met at Johnson Hall, New York, to consider treaty arrangements. On April 3, 1764, Johnson signed the Preliminary Articles of Peace, Friendship and Alliance" with the Seneca Nation ending hostilities after the French and Indian War. Article 3 of the April 3, 1764 Preliminary Articles of Peace provided that the Senecas:

cede to His Maj'ty and his successor for ever, in full Right, the lands from the Fort of Niagara, extending easterly along Lake Ontario, about four miles . . . and running from thence southerly, about fourteen miles to the Creek above Fort Schlosser or little Niagara, and down the same to the River, or Strait and across the same, at the great Cataract; thence Northerly to the Banks of Lake Ontario, at a Creek or small Lake about two miles west of the Fort, thence easterly along the Banks of the Lake Ontario, and across the River or Strait to Niagara, comprehending the whole carrying placer with the Lands on both sides the Strait, and containing a Tract of [about] fourteen miles in length and four in breath. — And the Senecas do engage never to obstruct the passage of the carrying place, or the free use of any part of the said Tract. . . .

7 Documents Relative to the Colonial History of the State of New York ("NYCD") 821 (E. B. O'Callaghan ed. 1855); Joint Stip. at ¶ 47.

In the margin of Article 3, the instrument states as follows: "Agreed to, provided the Tract be always appropriated to H.M's sole use, that at the definite Treaty, the lines be run in presence of Sr. Wm Johnson and some of the Seneca's [sic] to prevent disputes hereafter." 7 NYCD, supra, at 821; Joint Stip. at ¶ 48.

Thus, under the April 3rd treaty, the Senecas agreed to cede to the British Crown a four-mile wide strip of land running along each side of the Niagara River, from Lake Ontario to a point just above Niagara Falls. This has been referred to in this case and in the ICC proceedings as the "northern Niagara strip." See Appendix G.

Preparations were made for a multi-tribal peace conference at Fort Niagara in July of 1784. A final peace treaty with the Senecas was to be concluded in this context.

Prior to the July 1764 peace conference, Sir William Johnson had been in frequent correspondence with British military authorities about threats to the security of the Niagara portage and the degree of security necessary to guarantee its safety. See 3 The Papers of Sir William Johnson 162-63 (Milton W. Hamilton ed. 1921). His anxiety was increased when the Senecas were late reaching the July 1764 peace conference at Fort Niagara. Johnson wrote: "It has been a happy Circumstance for you that you came in Yesterday, otherwise the Army would certainly have gone against you. I hope for your own sakes you are sufficiently prepared for answering, and fulfilling all your Engagements." Id. at 318: Joint Stip. at 151.

Johnson called for an expansion of the Preliminary Articles of Peace of April 3, 1764:

With regard to your present Promises, I wish you may be sincere in them: — it is for your Interest, and Security that you should be so — You have so often broke them that we can only Judge by your future Conduct. . . . What remains for you yet to perform is to acknowledge your perfect Agreement with the Articles concerning the Carrying Place, the Posts at the Rapids . . . also that you repeat your Engagements for the Security of this Carrying Place against all them, who would Obstruct it; — all which must be fully performed. else all your Promises must be considered as nothing. — I would further recommend it to you to give a higher Proof [of] your friendship, — that you should cede to his Majesty the Lands from above your late Gift, to the Rapids at Lake Erie on both Side the Straights (sick in Breadth as the former, and to include all the Islands. — If you do this, I have reason to think his Majesty will be well pleased. & consider you for it.

3 The Papers of Sir William Johnson, sup's, at 318-19; Joint Stip. at ¶ 52.

On August 6, 1764, Johnson signed a "Treaty of Peace and Alliance" with the Seneca Nation. Article S provided that:

7 NYCD, supra, at 852; Joint Stip. at ¶ 53.

The August 6th treaty was a continuation of the April 3rd treaty and under it, in addition to the land ceded in the previous treaty (i.e., the northern Niagara strip), the Senecas agreed to cede a four-mile wide strip of land on each side of the Niagara River, from the southern-end of the northern Niagara strip to Lake Erie. This has been referred to in this case and in the ICC proceedings as the "southern Niagara strip." See Appendix H.

On August 30, 1764, Johnson transmitted the August 6, 1764 Treaty to the Earl of Halifax, with a cover letter describing the 5th Article of the Treaty and his acceptance of the Niagara Islands as follows:

The Senecas gave me all the Islands laying in the straits, between the two Lakes Ontario and Erie, one of which I know to be very fine Land, and computed at about 15 thousand acres, there are several others, which with the former, have a good deal of clear land, and vast large meadows of grass on them, and will prove absolutely necessary for the Oxen, Horses, etc. [sic] to be employed in His Maj'ty's service, as well as the Cattle of the Garrisons, there being no land fit for Meadow or grain near the Fort. I could not agreeable to the Custom of Indians refuse their offer, without giving great offence, and the great addition themselves had made to what their Deputies had agreed to, last April, together with their other proposals induced me to accept them, that I might have it in my power, to make an [sic) humble offer of them to His Maj'ty for such uses as he may think proper, I must beg leave to entreat your Lord'p to present my most profound duty to His Maj'ty on this occasion and to assure him, that I should not presume to make this offer, but that I know these Islands will prove of importance within a little time & may be extremely useful at present.

7 NYCD, supra, at 847; Joint Stip. at ¶ 54. That same day, Johnson also wrote the following to the Lords of Trade:

My sole motive, for accepting of the Islands, which they so earnestly pressed on me, was to have it in my power humbly to offer them to His Majesty; one of them contains near 15000 acres and has much Grass land, ...

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