Tuscarora Indian Nation v. FPC

• Citation: 265 F.2d 338
• Decision Date: 14 November 1958
• Docket Number: No. 14475.,14475.
• Parties: TUSCARORA INDIAN NATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Power Authority of the State of New York, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

265 F.2d 338 (1958)

TUSCARORA INDIAN NATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Power Authority of the State of New York, Intervenor.

No. 14475.

United States Court of Appeals District of Columbia Circuit.

Argued October 28, 1958.

Decided November 14, 1958.

Order March 24, 1959.

Certiorari Granted June 22, 1959.

Mr. Arthur Lazarus, Jr., Washington, D. C., with whom Mr. Eugene Gressman, Washington, D. C., was on the brief, for petitioner.

Mr. John C. Mason, Deputy General Counsel, Federal Power Commission, with whom Mr. Willard W. Gatchell, General Counsel, Federal Power Commission, and Mr. Joseph B. Hobbs, Attorney, Federal Power Commission, were on the brief, for respondent. Mr. Howard E. Wahrenbrock, Solicitor, Federal Power Commission, also entered an appearance for respondent.

Mr. Thomas F. Moore, Jr., New York City, with whom Mr. Frederic P. Lee, Washington, D. C., was on the brief, for intervenor.

Before PRETTYMAN, Chief Judge, and EDGERTON and DANAHER, Circuit Judges.

Certiorari Granted June 22, 1959. See 79 S.Ct. 1435.

PRETTYMAN, Chief Judge.

The issue here is whether the New York Power Authority has a valid license from the Federal Power Commission to build a dam that will flood certain lands of the Tuscarora Indians. We are of opinion that the case must be remanded to the Federal Power Commission for further consideration. In order that the litigation may not be delayed more than is necessary, we shall state in this memorandum the propositions which lead to our conclusion, without taking the time to complete an opinion in the customary form.

I

The relationship of the United States to the Tuscarora Indians resembles a guardianship, and control over the alienation of their lands is in the United States. A long-existing statute¹ provides: "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 equity, unless the same be made by treaty or convention entered into pursuant to the Constitution." (Emphasis added.) The point is further made specific in regard to lands within Indian reservations in the State of New York by a statute adopted by the Congress in 1950,² which conferred upon the courts of New York jurisdiction of certain actions involving Indians but contained the proviso "That nothing herein contained shall be construed as authorizing the alienation from any Indian nation, tribe, or band of Indians of any lands within any Indian reservation in the State of New York". The United States Court of Appeals for the Second Circuit held that the lands involved here are protected by that provision.³ It makes no difference how title to the land may have been acquired by the tribe.⁴

The statement in the letter of the Assistant Secretary of the Interior, referred to in the Commission's order denying rehearing, that these reservation lands are under state jurisdiction, is patently in error in so far as alienation is concerned.

To validate the taking of these lands by the Power Authority of New York for reservoir purposes, the consent of the United States must be found in some manner.

II

We have jurisdiction. The Federal Power Commission issued the license for this project (Project No. 2216, Niagara Project) by an order dated January 30, 1958. It did not in that order designate the land upon which the reservoir here involved should be located.⁵ In an order dated May 5, 1958, the Commission approved for inclusion in the license a map showing the location of the project works authorized by the license. The Tuscarora Nation petitioned for review of the January order. It did not separately or specifically petition for review of the May order. The Power Authority argues that the only order as to which the Tuscaroras are aggrieved is the May order and that we have no jurisdiction over that order because no appeal was taken from it. We treat the May order as the Commission treated it, i.e., that the map which it approved became a part of the license for the project, which license was issued by the January order. As a matter of fact, some time prior to April 18, 1958, the State of New York, on behalf of the Power Authority, for purposes of condemnation filed with the County Court of Niagara County a map and a description of the project as to which it claimed to be a licensee of the Federal Power Commission, and that map included these Tuscarora lands. The January order of the Commission and all its parts are before us on this petition for review.

III

The Commission was expressly directed by the Congress to issue a license to the Power Authority of New York for the construction of a power project with capacity to utilize all of the United States share of the water of the Niagara River.⁶ That statute provided, inter alia: "The Federal Power Commission shall include among the licensing conditions, in addition to those deemed necessary and required under the terms of the Federal Power Act, the following: describing seven conditions." (Emphasis supplied.) Thus the special statute required the Commission to include in the license all those conditions required by the Federal Power Act. The statute (Sec. 2, 16 U.S.C.A. § 836a) also required that the rules of practice and procedure of the Commission should apply to the granting of the license.

Moreover the record is quite clear that Congress was not advised of the possibility that Indian reservation lands might be sought as the site of part of the project.⁷ The Committee reports make no mention of the location of the project works, except, of course, that they would be in this area. During the hearings in 1956, on bills relating to the Niagara power project, witnesses represented to the House Committee that the lands to be acquired for the project belonged to the Niagara Mohawk Power Company. Senator Chavez, Chairman of the Committee in charge of the bill, told the Senate: "No dams or provisions for storage of water are necessary."⁸ This testimony related to the project as planned prior to the Schoellkopf disaster, but we are not advised that the impression given was ever withdrawn or changed.

Congress did not by the special statute of 1957 license the Power Authority for this project. It directed the Commission to issue the license. It did not specify the works (dams, reservoirs, etc.) of which the project was to consist or the property upon which the project works were to be located. It left all those matters to the Commission. It did not specify all the licensing conditions; it specified some and left the others to the Commission. It contemplated, and explicitly said, that there would be a proceeding before the Commission in the process of granting the license. We think Congress clearly meant that the license should be issued under the Federal Power Act and according to the terms of that Act; save only that Congress itself named the licensee, described the scope of the license, and specified seven conditions to be included in the license by the issuing Commission.

As a matter of fact the Federal Power Commission did not understand when it issued its license order of January 30, 1958, that the taking of these reservation lands was necessary for the project or that it was authorizing the taking of such lands. In its order the Commission referred to the objection of the Tuscaroras to the use of their land for reservoir purposes and said: "However, we do not attempt to pass on that question since other lands are available for reservoir use if the Applicant is unable to acquire the Indian lands, although alternative lands may be more expensive."

We conclude on this point that Congress did not in the special statute consent to or authorize the taking of this Indian land for this project.

We have given careful consideration to the possibility that Congress, in adopting the 1957 legislation, was exercising for the United States the totality of its sovereign capacity in respect to this resource, and that the exercise of this power by Congress might be said to be without limitations. This might be in furtherance of a policy of Congress so to govern disposal of rights to develop hydroelectric power that the development would be in the manner the Congress, not an administrative agency or the courts, might select.⁹ Accordingly it might be argued that Congress in the 1957 Act made provision, by a single stroke, for the immediate development by the Power Authority of one of the nation's greatest resources, with all the concomitant factors of necessary works, seizure of property, and conditions of operation. Of course, had the Federal Government chosen to develop the power through its own plant, it could have done so without the slightest reference to the Power Authority. And, it may be argued, it did precisely that and the Authority is an agent of the United States as well as of the State of New York. Under that view there need be no reference to Part I of the Federal Power Act and hence none to Section 4(e), much less to Section 3(2). Part I of that Act, in short, might be said to have applicability only in the event that an application by an entity essentially private in origin was made for a license in accordance with the terms of the Act. If Congress, on the other hand, wished to speak directly in the premises — and in behalf of the United States, — it was free to do so in complete disregard of limitations to be found in the Act which would apply in the case of others. Such a course, had Congress adopted it, would have the advantage of short-circuiting restrictions and conditions to be found in the Power Act, to the end that the Power Authority might immediately get on with the business.

We have considered that approach, but even as we have considered it we must reject it, for we find no escape from the language of the 1957 Act. As we have already pointed out, Congress did not issue a license; it authorized and directed its established agency to issue...