Federal Power Commission v. Tuscarora Indian Nation/Dissent Black

Mr. Justice BLACK, whom the CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting.

The Court holds that the Federal Power Act authorizes the taking of 22% (1,388 acres) of the single tract which the Tuscarora Indian Nation has owned and occupied as its homeland for 150 years. Admittedly this taking of so large a part of the lands will interfere with the purpose for which this Indian reservation was created-a permanent home for the Tuscaroras. I not only believe that the Federal Power Act does not authorize this taking, but that the Act positively prohibits it. Moreover, I think the taking also violates the Nation's long-established policy of recognizing and preserving Indian reservations for tribal use, and that it constitutes a breach of Indian treaties recognized by Congress since at least 1794.

Whether the Federal Power Act permits this condemnation depends, in part, upon whether the Tuscarora Reservation is a 'reservation' within the meaning of the Act. For if it is, § 4(e) forbids the taking of any part of the lands except after a finding by the Federal Power Commission that the taking 'will not interfere or be inconsistent with the purpose for which such reservation was created or acquired * *  * .' There is no such finding here. In fact, the Commission found that the inundation of so great a part of the Tuscarora Reservation by the waters of the proposed reservoir 'will interfere and will be inconsistent with the purpose for which such reservation was created or acquired.' 21 F.P.C. 146, 148. If these Tuscarora homelands are 'tribal lands embraced within' an Indian reservation as used in § 3(2) they constitute a 'reservation' for purposes of § 4(e), and therefore the taking here is unauthorized because the requisite finding could not be made.

I believe the plain meaning of the words used in the Act, taken alone, and their meaning in the light of the historical background against which they must be viewed, require the conclusion that these lands are a 'reservation' entitled to the protections of § 4(e) of the Act. 'Reservation,' as used in § 4(e), is defined by § 3(2), which provides:

"reservations' means national forests, tribal lands embraced     within Indian reservations, military reservations, and other      lands and interests in lands owned by the United States, and      withdrawn, reserved, or withheld from private appropriation      and disposal under the public land laws; also lands and      interests in lands acquired and held for any public purposes;      but shall not include national monuments or national parks *      *  * .' (Emphasis supplied.)

The phrase 'tribal lands embraced within Indian reservations' surely includes these Tuscarora lands. They are tribal lands. They are embraced within the Tuscarora Indian Nation's reservation. The lands have been called a reservation for more than 150 years. They have been so described in treaties, Acts of Congress, court decisions, Indian agency reports, books, articles, and maps. In fact, so far as I can ascertain, they have never been called anything else, anywhere or at any time-until today. Even the Court of Appeals and the Federal Power Commission, and the briefs and record in this Court, quite naturally refer to this 10-square-mile tract of land as an Indian reservation. The Court itself seems to accept the fact that the Tuscarora Nation lives on a reservation according to (in its words) the 'generally accepted standards and common understanding' of that term.

The Court, however, decides that in the Federal Power Act Congress departed from the meaning universally given the phrase 'tribal lands embraced within Indian reservations' and defined the phrase, the Court says, 'artificially.' The Court believes that the words 'other lands * *  * owned by the United States,' which follow, were intended by Congress to limit the phrase to include only those reservations to which the United States has technical legal title. By the Court's 'artificial' interpretation, the phrase turns out to mean 'tribal lands embraced within Indian reservations-except when 'the lands involved are owned in fee simple by the (Indians)."

Creating such a wholly artificial and limited definition, so new and disruptive, imposes a heavy burden of justification upon the one who asserts it. We are told that many tribes own their reservation lands. The well-known Pueblos of New Mexico own some 700,000 acres of land in fee. All such reservation lands are put in jeopardy by the Court's strained interpretation. The Court suggests no plausible reason, or any reason at all for that matter, why Congress should or would have sought artificially to place those Indians who hold legal title to their reservation lands in such a less-favored position. The fact that the Tuscarora Nation holds technical legal title is fortuitous and an accidental circumstance probably attributable to the Indian land policy prevailing at the early date this reservation was established. Their lands, like all other Indian tribal lands, can be sold, leased or subjected to easements only with the consent of the United States Government. Congress and government agencies have always treated the Tuscarora Reservation the same as all others, and there is no reason even to suspect that Congress wanted to treat it differently when it passed the Federal Power Act.

It is necessary to add no more than a word about the legislative history of this section which the Court relies on. The Court points out that the House version of the 1920 Federal Water Power Act (now called the Federal Power Act) defined 'reservations' as meaning only 'lands and interests in lands owned by the United States.' In this definition of 'reservations' the Senate inserted new words which included the present phrase 'tribal lands embraced within Indian reservations.' If the only Indian lands Congress sought to cover by this section were those to which the United States had title, the Senate addition served no purpose. For the House bill covered all 'lands * *  * owned by the United States.' The only reason for the Senate additions, it seems to me, was to cover lands, like those of the Tuscarora Nation here, title to which was not in the United States Government.

The Court also undertakes to support its 'artificial' definition of 'tribal lands embraced within Indian reservations' by saying that the Congress knew, by a prior decision of this Court, that it was acting under Art. IV, § 3, cl. 2, of the Constitution, which gives Congress power, as the Court says, 'to deal only with 'the Territory or other Property belonging to the United States." In the first place I do not understand how the Court can say with such assurance that the Congress was acting only under that clause, as there is no evidence whatsoever that Congress expressed itself on this matter. Moreover, it seems far more likely to me that in this phrase regulating Indian tribes Congress was acting under Art. I, § 8, cl. 3, which empowers Congress 'To regulate Commerce with * *  * the Indian Tribes.'

Even accepting for a moment the Court's 'artificial' definition, I think the United States owns a sufficient 'interest' in these Tuscarora homelands to make them a 'reservation' within the meaning of the Act. Section 3(2) does not merely require a finding in order to take 'tribal lands embraced within Indian reservations'; the same finding is required in order to take 'other * *  * interests in lands owned by the United States' whether tribal or not. Or, again accepting the Court's conception, if the phrase 'tribal lands embraced within Indian reservations' must be modified by the words which follow 'lands owned by the United States,' it must also be modified by the words 'interests in lands owned by the United States,' which also follow. Read this way, the section defines 'reservations' as tribal lands in which the United States owns 'interests.' Thus again a finding under § 4(e) is required even under the Court's own technical approach if the United States owns 'interests' in the lands. I think it does.

Certainly the words Congress used, 'interests in lands,' are not surplusage; they have some meaning and were intended to accomplish some purpose of their own. The United States undoubtedly controls (has 'interests in') many lands in this country that it does not own in fee simple. This is surely true as to all Indian tribal lands, even though the Indians own the fee simple title. Such lands cannot be sold or leased without the consent of the United States Government. The Secretary of the Interior took this position about this very reservation in 1912 when the Tuscaroras desired to lease a part of their lands to private individuals for limestone quarrying. And, of course, the long-accepted concept of a guardian-ward relationship between the United States and its Indians, with all the requirements of fair dealing and protection that this involves, means that the Indians are not free to treat their lands as wholly their own. Anyone doubting the extent of ownership interest in these lands by the United States would have that doubt rapidly removed should he take a deed from the Tuscarora Nation without the consent of the Government. I cannot agree, therefore, that this all but technical fee ownership which the United States has in these lands is inadequate to constitute the kind of 'interests in lands owned by the United States' which requires a § 4(e) finding before condemnation.

After the Court concludes that because of its interpretation of the definition of 'reservations' in § 3(2) a finding is not required by § 4(e) to take the Tuscarora lands, it goes on to find the necessary congressional authorization to take these lands in the general condemnation provisions of § 21. 16 U.S.C. § 814, 16 U.S.C.A. § 814. I believe that this is an incorrect interpretation of the general power to condemn under § 21, both because Congress specifically provided for the taking of all Indian reservation lands it wanted taken in other sections of the same Act, and because a taking under § 21 is contrary to the manner in which Congress has traditionally gone about the taking of Indian lands such as Congress here carefully prescribed in § 4(e). Congress has been consistent in generally exercising this power to take Indian lands only in accord with prior treaties, only when the Indians themselves consent to be moved, and only by Acts which either specifically refer to Indians or by their terms must include Indian lands. None of these conditions is satisfied here if § 21 is to be relied upon. The specific and detailed provisions of § 10(e), 16 U.S.C. § 803(e), 16 U.S.C.A. § 803(e), upon which the Court relies, only emphasize to me the kind of care Congress always takes to protect the just claims of Indians to reservations like this one.

The cases which the Court cites in its opinion do not justify the broad meaning read into § 21. Many of those cases deal with taxation-federal and state. The fact that Indians are sometimes taxed like other citizens does not even remotely indicate that Congress has weakened in any way its policy to preserve 'tribal lands embraced within Indian reservations.' Moreover, cases dealing with individuals who are not Indians are not applicable to tribal reservations. For example, Shaw v. Gibson-Zahniser Oil Corp., 276 U.S. 575, 48 S.Ct. 333, 72 L.Ed. 709, cited by the Court, did not involve tribal lands. That case only held that a State may tax the production of an oil company even though it was derived from oil company lands leased from an Indian. The owner there was an individual Indian, not a tribe, and the lands were not and never had been a part of an Indian reservation, but rather had been purchased for this single Indian with the royalties he obtained from his own original restricted allotted lands. In Henkel v. United States, 237 U.S. 43, 35 S.Ct. 536, which involved the taking of Indian lands for the vast western reclamation project, the Court not only found that it had been 'well known to Congress' that Indian lands would have to be taken, 237 U.S. at page 50, 35 S.Ct. at page 539, but the treaty with the Indians involved in that case contained a specific consent by the Indians to such a taking. 29 Stat. 356, quoted 237 U.S. at 48, 49, 35 S.Ct. at 538. There was no provision even resembling this in the Treaty of 1794 with the Tuscaroras. Other cases relied on by the Court, such as Spalding v. Chandler, 160 U.S. 394, 16 S.Ct. 360, 40 L.Ed. 469, and Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 10 S.Ct. 965, all involved statutes that made it clear that Congress was well aware it was authorizing the taking of Indians' lands-unlike the history of § 21 of the Federal Power Act and the 1957 Niagara Power Act, 71 Stat. 401, 16 U.S.C. §§ 836, 836a, 16 U.S.C.A. §§ 836, 836a, involved here.

All that I have said so far relates to what the Court calls the 'plain words' of the statute. I interpret these 'plain words' differently than the Court. But there are other more fundamental and decisive reasons why I disagree with the Court's interpretation of the Federal Power Act as it relates to Indians. The provisions in § 4(e) which protect Indian reservations against destruction by condemnation cannot be properly construed unless considered as a part of a body of Indian laws built up throughout this Nation's history, and extending back even to the Articles of Confederation. It is necessary to summarize briefly a part of that history.

The experience of the Tuscarora Nation illustrates this history as well as that of any Indian tribe. When this country was discovered the Tuscaroras lived and owned their homelands in the area that later became North Carolina. Early settlers wanted their lands. The Tuscaroras did not want to give them up. Numerous conflicts arose because of this clash of desires. Finally, about 1710, there was a war between the Tuscaroras and the colonists in North and South Carolina. The Indians were routed. A majority of their warriors were killed. Hundreds of their men, women and children were captured and sold into slavery. Nearly all of the remainder of the tribe fled. They found a home in distant New York with the Iroquois Confederation of Nations. With their acceptance into the Confederation about 1720 it became known as the Six Nations. Historical accounts indicate that about 1780 those Tuscaroras who had supported America in the Revolution were compelled to leave their first residence in New York because of the hostility of Indians who had fought with the British against the Colonies. They migrated to the Village of Lewiston, New York, near Niagara Falls and settled in that area as their new home. They have remained there ever since-nearly 180 years. When their legal right to this land came into question about 1800 the Seneca Indians and the Holland Land Company both 'thought their claim so just' that they gave the Tuscarora Nation deeds to three square miles of the area they had been occupying for about 20 years. With the assistance of Presidents Washington and Jefferson and the Congress, the Tuscaroras were able, through the Secretary of War, to sell their vast North Carolina lands for $15,000. With this money, held by the Secretary of War as trustee, additional lands adjoining those received from the Seneca Indians and the Holland Land Company were obtained for the Tuscarora Nation and the title held in trust by the Secretary of War from 1804 to 1809. The Secretary supervised the payments to the Holland Land Company, from which the additional 4,329 acres were obtained, and when payments were completed he conveyed these lands to the Tuscarora Nation. The 1,383 acres of the Tuscarora Reservation involved today is a part of this purchase. Despite all this and the Government's continuing guardianship over these Indians and their lands throughout the years the Court attempts to justify this taking on the single ground that the Indians, not the United States Government, now own the fee simple title to this property.

In 1838 the Government made a treaty with the Tuscaroras under which they were to be removed to other parts of the United States. The removal was to be carried out under the authority of a Congressional Act of 1830, 4 Stat. 411, which provided a program for removing the Indians from the Eastern United States to the West. Section 3 of that Act provided authority 'for the President solemnly to assure the tribe or nation with which the exchange is made, that the United States will forever secure and guaranty to them, and their heirs or successors, the country so exchanged with them * *  * .' The same Act also provided 'That nothing in this act contained shall be construed as authorizing or directing the violation of any existing treaty between the United States and any of the Indian tribes.' Id., § 7.

The Tuscarora Nation then had such a treaty with the United States, which had been in existence since 1764 and is still recognized by Congress today. The treaty was made with all the Six Nations, at a time when the Tuscarora Nation had been a member for over 70 years, and one of their representatives signed the treaty. In Article III of the Treaty the United States Government made this solemn promise:

'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 purchase.'

This article of the 1794 Treaty substantially repeated the promise given the Tuscaroras in the prior 1784 Treaty, 7 Stat. 15, made before our Constitution was adopted, that 'The Oneida and Tuscarora nations shall be secured in the possession of the lands on which they are settled.'

Of course it is true that in 1794, when the Treaty was signed, the Tuscarora Nation did not yet have the technical legal title to that part of the reservation which the Government was later able to obtain for it. But the solemn pledge of the United States to its wards is not to be construed like a money-lender's mortgage. Up to this time it has always been the established rule that this Court would give treaties with the Indians an enlarged interpretation; one that would assure them beyond all doubt that this Government does not engage in sharp practices with its wards. This very principle of interpretation was applied in the case of The New York Indians, 5 Wall. 761, 768, 18 L.Ed. 708, where the Court said, about this treaty:

'It has already been shown that the United States have     acknowledged the reservations to be the property of the      Seneca nation-that they will never claim them nor disturb      this nation in their free use and enjoyment, and that they      shall remain theirs until they choose to sell them. These are     the guarantees given by the United States, and which her      faith is pledged to uphold.'

After the Treaty of 1838 was signed, in which the Tuscaroras agreed to go west, they decided not to do so, and the Government respected their objections and left them with their land. They have, since that time, held it as other Indians have throughout the Nation. This has been in accord with the settled general policy to preserve such reservations against any kind of taking, whether by private citizens or government, that might result in depriving Indian tribes of their homelands against their will. President Jackson, in 1835, explained the purpose of the removal and reservation program as meaning that, 'The pledge of the United States has been given by Congress that the country destined for the residence of this people shall be forever 'secured and guaranteed to them." This policy was so well settled that when the Missouri compromise bill was being discussed in Congress in 1854 Texas Senator Sam Houston used this picturesque language to describe the Government's promise to the Indians:

'As long as water flows, or grass grows upon the earth, or     the sun rises to show your pathway, or you kindle your camp      fires, so long shall you be protected by this Government, and      never again removed from your present habitations.'

It was to carry out these sacred promises made to protect the security of Indian reservations that Congress adopted § 4(e) which forbids the taking of an Indian reservation for a power project if it will 'interfere * *  * with the purpose for which such reservation was created or acquired *  *  * .' But no such finding was made or could be made here.

There can be no doubt as to the importance of this power project. It will be one of the largest in this country and probably wil have cost over $700,000,000 when it is completed. It is true that it will undoubtedly cost more to build a proper reservoir without the Tuscarora lands, and that there has already been some delay by reason of this controversy. The use of lands other than those of the tribe will cause the abandonment of more homes and the removal of more people. If the decision in this case depended exclusively upon cost and inconvenience, the Authority undoubtedly would have been justified in using the Tuscarora lands. But the Federal Power Act requires far more than that to justify breaking up this Indian reservation.

These Indians have a way of life which this Government has seen fit to protect, if not actually to encourage. Cogent arguments can be made that it would be better for all concerned if Indians were to abandon their old customs and habits, and become incorporated in the communities where they reside. The fact remains, however, that they have not done this and that they have continued their tribal life with trust in a promise of security from this Government.

Of course, Congress has power to change this traditional policy when it sees fit. But when such changes have been made Congress has ordinarily been scrupulously careful to see that new conditions leave the Indians satisfied. Until Congress has a chance to express itself far more clearly than it has here the Tuscaroras are entitled to keep their reservation. It would be far better to let the Power Authority present the matter to Congress and request its consent to take these lands. It is not too late for it to do so now. If, as has been argued here, Congress has already impliedly authorized the taking, there can be no reason why it would not pass a measure at once confirming its authorization. It has been known to pass a Joint Resolution in one day where this Court interpreted an Act in a way it did not like. See Commissioner of Internal Revenue v. Estate of Church, 335 U.S. 632, 639-640, 69 S.Ct. 322, 326, 93 L.Ed. 288. Such action would simply put this question of authorization back into the hands of the Legislative Department of the Government where the Constitution wisely reposed it.

It may be hard for us to understand why these Indians cling so tenaciously to their lands and traditional tribal way of life. The record does not leave the impression that the lands of their reservation are the most fertile, the landscape the most beautiful or their homes the most splendid specimens of architecture. But this is their home-their ancestral home. There, they, their children, and their forebears were born. They, too, have their memories and their loves. Some things are worth more than money and the costs of a new enterprise.

There may be instances in which Congress has broken faith with the Indians, although examples of such action have not been pointed out to us. Whether it has done so before now or not, however, I am not convinced that it has done so here. I regret that this Court is to be the governmental agency that breaks faith with this dependent people. Great nations, like great men, should keep their word.