United States v. National Gypsum Co., 97.

• Decision Date: 31 March 1944
• Docket Number: No. 97.,97.
• Citation: 141 F.2d 859
• Parties: UNITED STATES v. NATIONAL GYPSUM CO. et al.
• Court: U.S. Court of Appeals — Second Circuit

141 F.2d 859 (1944)

UNITED STATES v. NATIONAL GYPSUM CO. et al.

No. 97.

Circuit Court of Appeal, Second Circuit.

March 31, 1944.

Finck & Huber, of Buffalo, N. Y. (Elmer E. Finck and John F. Huber, Jr., both of Buffalo, N. Y., of counsel), for defendant-appellant National Gypsum Co.

Nathaniel L. Goldstein, Atty. Gen. (Orrin G. Judd, Sol. Gen., of Albany, N. Y., and Henry S. Manley, Asst. Atty. Gen., of counsel), for defendant-appellant People of New York.

Norman M. Littell, Asst. Atty. Gen., and Vernon L. Wilkinson and Roger P. Marquis, Attys., Department of Justice, and George L. Grobe, U. S. Atty., all of Washington, D. C., for the United States.

Before SWAN, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The United States brought suit at the request of the Secretary of the Interior on behalf of the Tonawanda Tribe or Band of Seneca Indians to have two leases of lands in their Reservation in Western New York which are held by the defendant, National Gypsum Company, declared void. The People of the State of New York were made a party to the suit. Both the National Gypsum Company and the State interposed answers praying that the complaint be dismissed.

The District Court held that the leases and Section 85 of the Act of the New York Legislature approved February 17, 1909, Indian Law, Consol. Laws, c. 26, § 85, under which the leases purported to be made, were void, granted judgment in favor of the United States to that effect and ordered the National Gypsum Company to account for the value of minerals mined and removed from the leased lands. Both the Gypsum Company and the State have appealed from the judgment. In our opinion the leases and the Act of the New York Legislature under which they were authorized were valid. The judgment should, therefore, be reversed and the complaint dismissed.

The Tonawanda Band of the Seneca Nation was one of the Indian tribes of the Six Nations. In 1784, 1789 and 1794, the United States concluded three treaties with the Six Nations. 7 Stat. 15, 33, 44. Under these treaties certain described lands in the United States were recognized as the Reservation of the Indians to "remain theirs, until they choose to sell the same to the people of the United States, who have the right to purchase." By the treaties the United States agreed to pay an annuity to the Indians. The Treaty of 1794 described the Reservation of the Senecas.

Thereafter it was proposed to move the Tonawanda Band to a reservation in Kansas, but they did not accede to the proposal and as a result, under a subsequent treaty between the Band and the United States made on November 5, 1857, and ratified by the Senate on June 4, 1858, 11 Stat. 735, the Tonawandas relinquished to the United States all claim to the lands in Kansas for $256,000.

It was provided by the Treaty of 1857 that the Tonawanda Band might purchase a Reservation in New York for the sum of $256,000, or such part as they might choose to use for that purpose. Under Article III of this Treaty title to the lands so purchased was to be taken by deed to the Secretary of the Interior "to be held by him in trust for the said Tonawanda Band of Indians and their exclusive use, occupation and enjoyment, until the legislature of the State of New York shall pass an act designating some persons, or public officer of that State, to take and hold said land upon a similar trust for said Indians; whereupon they shall be granted by the said Secretary to such persons or public officer." The Tonawandas expended $165,000 of the moneys they received from the Kansas lands in acquiring about 7,549 acres in the New York Reservation, the title being taken in the name of the Secretary of the Interior. He held the lands thus acquired for the tribe until February 14, 1862, when he conveyed them to the Comptroller of the State of New York "in trust, for the said Tonawanda Band of Indians and for their exclusive use, occupation and enjoyment, in the manner particularly defined in said Treaty". This disposition of the lands was authorized by the New York Legislature under Chapter 439 of the Laws of 1860.

In 1873 the New York Legislature enacted the law which as amended now constitutes Section 85 of the Indian Law of that State. This statute purported to authorize the attorney for the Tonawandas, who is now appointed by the State Board of Charities, pursuant to Section 81 of the Indian law, to sell gypsum on the Tonawanda Reservation, the proceeds to be paid to the United States Indian Agent for the New York Indian Agency for distribution with the annuities paid by the United States. In 1922 a twenty year lease was executed by the attorney for the Indians pursuant to Section 85 and the National Gypsum Company subsequently succeeded to the rights of the lessee thereunder. In 1936 another lease was granted to the National Gypsum Company for a period of fourteen years, to begin at the expiration of the first lease. It was to avoid these leases that the United States brought the present suit.

The decision by the District Court was rendered upon a motion by the United States for summary judgment. Prior to the making of this motion, the United States had moved for judgment on the pleadings, declaring Section 85 of the New York Indian Law and the leases to the National Gypsum Company void; thereupon the People of the State of New York were joined as a party-defendant, filed its answer, as the National Gypsum Company had already done, and National Gypsum Company made a cross-motion on the pleadings for a dismissal of the complaint on the ground that it failed to state a claim against the Company. These motions were followed by a motion on behalf of the United States for leave to withdraw its motion for judgment on the pleadings and for summary judgment. The next thing that occurred was the filing of the opinion of the District Judge, 49 F.Supp. 206, in which he upheld the position of the United States and declared the provisions of the Indian Law of the State of New York authorizing the leases, and the leases themselves, null and void. His decision was chiefly based on 25 U.S.C.A. § 177, R.S. § 2116, which provides that: "No purchase, grant, lease or other conveyance of lands * * * from any Indian nation or tribe of Indians, shall be of any validity in law or in equity, unless the same be made by treaty or convention entered into pursuant to the Constitution." Thereupon the Attorney General of the State of New York moved upon affidavits for a reargument or a new trial on the issues raised by the pleadings, or such other relief as might be appropriate, and filed affidavits in support of his position. The District Judge thereafter filed a further opinion in which he denied the motion for a reargument or new trial and held that the determining question was "What the legal effect of the deed to the Comptroller of the State of New York was in so far as it gave authority to the State to enact legislation providing for the leasing of the gypsum lands in question; and next whether the statute of the United States forbids the execution of such lease. If the execution of the deed gave the authority aforesaid, the statute would not apply. On the other hand, if the deed did not give such authority in my view, the statute controlled. * * * Admitting all the matters set out in the moving affidavits, the conclusions heretofore arrived at must stand."

The State contends that upon the proofs before the court summary judgment was improper and that the parties should be afforded an opportunity "to present either by trial or affidavits, the factual and historical setting of the New York Indian Law, Sec. 85." In reply, it is argued on behalf of the United States, that "the question is purely one of law and, to the extent that the facts asserted in the affidavits are material, they will be considered on the appeal. A trial would serve no purpose. Hence this was obviously an appropriate case for summary judgment. The appellant company recognizes this fact for it contends (Brief 3) that its motion for judgment on the pleadings should have been granted."

From the above contentions of the parties it seems obvious that the United States in moving for summary judgment does and can raise no question as to the propriety of that mode of procedure, nor do we think the defendants in whose favor we are deciding this appeal are in a position to complain since they are obtaining a dismissal of the complaint. Indeed they both ask among other things that the judgment of the District Court be reversed and the complaint dismissed.

The Tonawanda Indians were determined to resist the arrangement to remove them to the West, and were intent upon retaining a reservation in the State of New York, and in carrying out this...