Petitioner, ) ) Defendant. Defendant. 1. Decided: December 30, Appearances: Paul G. Reilly, Attorney of Record for -Petitioners

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1 20 Ind. C1. Corm. 177 BEFORE THE INDIAR CLAIFiS CO?NISSION THE SENECA NATION OF INDIANS, 1 Petitioner, v. THE UNITED STATES OF PMERICA, 1 Defendant. Docket Nos. 342-B C 34 2-D TONAWANDA BAND OF SENECA INDIANS, Petitioner, 1 v. 1 THE UNITED STATES OF AMERICA, 1 Defendant. 1 Docket No. 368 Decided: December 30, 1968 Appearances: Paul G. Reilly, Attorney of Record for -Petitioners Craig A. Decker, with whom was Mr. Assistant Attorney General Clyde 0. Martz, Attorneys for Defendant OPINION OF THE COMMISSION Yarborough, Commissioner delivered the opinion of the Commission. Docket Nos, 342-B, C, & D, combined.with Docket No. 368, are timely suits filed against the United States under Section 2

2 20 Ind. C1. Comm of the Indian Claims Commission Act of 194G (25 U.S.C. 70a. The Indian tribes which filed the suits are the Seneca Nation of Indians - 1 / and the Tonawanda Band of Seneca Indians. The lands involved consist of the bed of the Kiagara River, the islands in the River within the United States, and adjacent lands to the east of the River. These latter lands consist of a strip one mile wide (or four miles wide running along the Niagara River from Lake Ontario on the north to the mouth of Buffalo Creek on Lake Erie on the south. These lands will hereafter be referred to as the strip. The land claimed by petitioners in Docket No. 342-B is the southern half of the strip, together with all lands belonging to the United States lying in the bed of the River, said southern half being one mile wide commencing and extending from Buffalo Creek on Lake Erie to the mouth of Gill Creek. Docket No. 342-C concerns all the islands that lie in the Niagara River between Lake Erie and Lake Ontario, lying within the jurisdiction of the United States. Docket No. 342-D concerns a strip of land four miles wide, together with the adjacent river bed of the Niagara River commencing at Gill 1/ All four claims were consolidated for trial by order of the - Commission of February 7, 1957, znd were tried on July 18 and 19, The Commission granted defendant's motion to dismiss the cases for lack of prosecution on May 1, 1967, 18 Ind. C1. Comrn. 412; this order was set aside and petitioner was permitted to file proposed findings of fact and brief by order of June 19, 1967, 18 Ind. C1. Corn. 424.

3 20 Ind. C1. Comm Creek northerly to Lake Ontario. Docket No. 368 also deals with the lands cleimed in Docket Nos. 342-B and C, but states the claims - 2 / in somewhat different language. Petitioners base their claim first on Indian or aboriginal title to all the land claimed in Docket Nos. 342-B, C and D and 368 and the lack of fair and honorable dealings by its cession in the 1784 Treaty of Fort Stanwix. Without doubt, after the middle of the 17th century, the Senecas were the dominant tribe of the area. The European powers when in the Niagara area dealt with the Senecas exclusively, when not suffering their attacks. 2/ A table of the relevant treaties and areas: Treaty 1764 Treaties 1784 Treaty Area Seneca ceded four mile wide northern and southern strip to Great Britain. Seneca ceded four mile wide northern and southern strip to United States. (1786 Hartford Compact (New York retained one mile wide northern and southern strip in ceding preemption right to Massachusetts Treaty Treaty 1802 Sale Seneca ceded four mile wide northern and southern strip to United States. Seneca ceded four mile wide northern strip to United States, but was granted one mile wide southern strip. Seneca sold one mile wide southern strip to New York Sale Seneca sold islands to New York.

4 20 Ind. C1. Corni. 177 However, this particular tract in question, the Niagara River and a narrow strip on its east bank, was one of the key routes of travel during the colonial period. The fur trade with the Western Indians was conducted through it. There was virtually continuous European occupancy of the area after In the northern part of the strip, forts were built to protect the portage route around Niagara Falls. Whether these facts alone would defeat the claim of aboriginal title, the Indians did enter into treaties of cession to the British in 1764, as set out in our Findings. The evidence further shows that in later years, after American sovereignty.had attached, the Seneca recognized that they had ceded the strip area to the British. The treaties of cession of 1764 to the prior sovereign Great Britain are conclusive as evidencing an intent of the Seneca to abandon and relinquish any actual exclusive use and occupancy of the Niagara River strip after Their cession of the northern part of the strip, that containing the portage around the Falls, was repeated in the treaties of 1784, 1789 and 1794 and of the southern strip in the treaties of 1784 and As we find that the Seneca had no cornpensable interest in this Niagara area at the time of the Treaty of Fort Stanwix in 1784, no claim against the United States arises for any lack of fair and honorable dealings in obtaining the cession of the Niagara area. The claim in Docket No. 342-D will be dismissed.

5 20 Ind. C1. Comm. 177 The 1794 Treaty, hokrever, we hold to have the effect of a treaty of recognition, or grant of the U. S. interest in the southern strip and the - 3 / islands. The words of the treaty grant are clear and unequivocal, and it is not material that the Seneca no longer had aboriginal title to that tract. Miami Tribe of Oklahoma v. U. S., 146 Ct. Cls. 421 (1959. Colonel Timothy Pickering, the United States negotiator for the 1794 Treaty, wrote of his embarrassment at making the ostensible relin- quishment to the Indians of land of which he felt the United States did not have the power of disposition (see Finding No. 12. Fortunately, it is within the purpose of the Indian Claims Commission Act to cure any deception that may have been visited on the Indians. We find that the words of grant in the 1794 Treaty are sufficient to -- create an equitable estoppel against the United States to deny that these were then Indian lands in which the Seneca had a compensable interest equivalent to a recognized title. Any subsequent disposition of the lands by the Seneca would be under the protection of the Trade and Intercourse Act: "In the light of its language, contemporaneous construction, and history, we hold that the Trade and Intercourse Act created a special relationship between the Federal Government 3/ "Now, the United States acknowledge all the land within the - aforementioned boundaries, to be property of the Seneka Nation; and the United States will never claim the same, nor disturb the Seneka nation,...but it shall remain theirs..." (See Finding NO. 11.

6 20 Ind. C1. Comm. 177 and those Indians covered by the legislation, with respect to the disposition of their lands, and that the United States assumed a special responsibility to protect and guard against unfair treatment in such transactions. The Oneida Tribe of Indians v. United States, 165Ct. C (1964, cert. denied, 379 U.S This responsibility was not merely to be present at the negotiations or to prevent actual fraud, deception, or duress alone; improvidence, unfairness, the receipt of an unconscionable consideration would likewise be of federal concern It necessarily follows, we think, that wherever this Act applies the United States is liable, under the Indian Claims Commission Act, for the receipt by the Indians of an unconscionably ~ O V consideration." Seneca Nation of Indians V. 173 Ct. Cls. 917, (1965. k/ G., In testing whether the United States is responsible in damages under the.- -.-!Indian Claims Cormnission Act, it is of no concern whether the Indians' -*- vendee was a private party, a State, or what actual powers the United States may have possessed or exercised or failed to exercise in super- Cf. vising a.particular sale. The United States has made itself responsible under the Indian Claims Commission Act for any failure of the Indians to receive a conscionable consideration for their lands. - 4/ Most of the other land con irmed to the Seneca by the 1794 Treaty was purchased from them by Robert Morris in Ruling that the United States had a fiduciary obligation and that the Seneca had a compensable interest, the Court of Claims has remanded the question of the adequacy of the consideration received to the Commission. Seneca Nation of Indians v. U.S., supra. -

7 20 Ind. C1. Comn. 177 The Seneca acquired t?lr same interest in the islands adjacent to the southern strip as they did to the shore. The 1794 Treaty boundary description, "...to that river;... then the line runs along the River Niagara to Lake Erieithen along Lake Erie...," by construction includes the adjacent islands so far as United States ownership went, or to the main channel of the river. i "Thus, descriptions of a boundary line running 'to the river, and thence up the river,' 'to the river and thence up and along the same' to a beginning monument on the bank of the river, or even 'thence on the river shore' carry title to, and fix the boundaries of, the grantee's at the thread of the stream." 8 Am. Jur., Boundaries 525, p.763, also 4 Tiffany, Real Property, NO showing of a contrary intent of the parties is made. The 1802 sale to New York, however, is clearly only of a one mile wide strip on the shore. No portion of the riverbed adjacent to the southern strip can be said to have been granted by the 1794 Treaty. The rule is well established that there is a presumption against the sovereign's alienation of title to the land under navigable waters: "It is a principle derived from the English common law and firmly established in this country that the title to the soil under navigable waters is in the sovereign, except so far as private rights in it have been acquired by express grant or prescription. Shivley v. Bowlby, 152 U.S. 1. The rule is

8 20 Ind. C1. Cornm. 177 applied both to the territory of the United States (Shivley v. --- Bowlby ' supra and to land within the confines of the States whether they are original States; Johnson v. FIcIntosh, [8 Wheat. 5431;?/artin v. Maddell, 116 Pet. 3671, or States admitted into the Union since the adoption of the Constitution. United States v. Holt State Bank, 270 U.S. 49. The dominion over navigable waters, and property in the soil under them, are so identified with the exercise of the sovereign powers of government that a presumption agafnst their separation from sovereignty must be indulged, in construing all grants by the sovereign, of lands to be held in private ownership. Martin v. Waddell; Shivley v. Bowlby, supra. Such grants are peculiarly subject to the rule, applicable generally, that all grants by or to a sovereign government, as distinguished from private grants, must be construed so as to diminish the public rights of the sovereign only so far as is made necessary by an unavoidable construction. Charles River Bridge v. Warren Bridge, 11 Peters, 420, ; Shivley v. Bowlby, supra." Massachusetts v. New York, 271, U.S. 65, 89 (1926 construing the Hartfords Compact's effect on lands under Lake Ontario; see accord Cherokee Nation v. Oklahoma, I?. 2d (10th Cir. 1968, U.S. grant to Indians not passing title to riverbeds. In summary, the Commission holds that although the Seneca had no compensable interest in the Niagara lands prior to 1794, the 1794 Treaty created a compensable interest in the Senecas to the southern strip and the islands. Under the fiduciary re- lationship required by the Trade and Intercourse Act the United States will owe compensation under our Act if the Seneca received less than a proper consideration for these lands in their sales

9 20 Ind. C1. Comnl to NCY: York in 1802 and The exact acreage involved, its fair market value, and the consideration received will be deter- mined in further proceedings. John T. Vance, Chairman. - Theodore R. McKeldin, Commissioner

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