Federal Power Commission v. Tuscarora Indian Nation

Federal Power Commission v. Tuscarora Indian Nation
Federal Power Commission v. Tuscarora Indian Nation
	Supreme Court of the United States
Argued December 7, 1959; Decided March 7, 1960
Full case name	Federal Power Commission v. Tuscarora Indian Nation
Citations	362 U.S. 99 ( more ) 80 S. Ct. 543; 4 L. Ed. 2d 584
Prior history	United States Court of Appeals for the District of Columbia Circuit
Holding
	The Federal Power Commission did indeed have the right to seize land from the Tuscarora Indian Tribe with just compensation.
Court membership
	Chief Justice Earl Warren Associate Justices Hugo Black · Felix Frankfurter ; William O. Douglas · Tom C. Clark ; John M. Harlan II · William J. Brennan Jr. ; Charles E. Whittaker · Potter Stewart
Case opinions
Majority	Whittaker, joined by Warren, Frankfurter, Clark, Harlan, Stewart
Concurrence	Brennan
Dissent	Black, joined by Douglas
Laws applied
	Federal Power Act

Last updated March 31, 2019

Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99 (1960), was a case decided by the United States Supreme Court which determined that the Federal Power Commission was authorized to take lands owned by the Tuscarora Indian tribe by eminent domain under the Federal Power Act for a hydroelectric power project, upon payment of just compensation.

The Federal Power Commission (FPC) was an independent commission of the United States government, originally organized on June 23, 1930, with five members nominated by the president and confirmed by the Senate. The FPC was originally created in 1920 by the Federal Water Power Act, which provided for the licensing by the FPC of hydroelectric projects on the land or navigable water owned by the federal government. The FPC has since been replaced by the Federal Energy Regulatory Commission.

Eminent domain, land acquisition, compulsory purchase, resumption, resumption/compulsory acquisition (Australia), or expropriation is the power of a state, provincial, or national government to take private property for public use. However, this power can be legislatively delegated by the state to municipalities, government subdivisions, or even to private persons or corporations, when they are authorized by the legislature to exercise the functions of public character.

The Federal Power Act is a law appearing in Chapter 12 of Title 16 of the United States Code, entitled "Federal Regulation and Development of Power". Enacted as the Federal Water Power Act on June 10, 1920, and amended many times since, its original purpose was to more effectively coordinate the development of hydroelectric projects in the United States. Representative John J. Esch (R-Wisconsin) was the sponsor. Prior to this time and despite federal control of navigable waters and the necessary congressional approval to construct such facilities, Congress had left the regulation of hydroelectric power to the individual states. The first federal legislation broadly dealing with hydroelectric development regarded its competition with navigation usage; with the passage of the Rivers and Harbors Act of 1899 Congress made it illegal to dam navigable streams without a license from them. Until 1903, these congressional permits were given away on a 'first come first served' perpetual basis and controlled by the individual states. This would lead to a long debate between competing private and public development interests, and culminate in the act's passage in 1920.

Background

In 1950 the United States and Canada entered into treaty in respect to the Niagara Falls in order to properly split the use of an obviously huge natural resource. When approving the treaty, the Senate entered into force a provision that stated that no development of the areas was to occur without an Act of Congress. Because of this the Army Corps of Engineers reported to the Congress about the most feasible plans to use all of the waters afforded to it by the 1950 treaty. Also other studies were submitted to the Congress by the Federal Power Commission and Power Authority of New York.

Niagara Falls is the collective name for three waterfalls that straddle the international border between the Canadian province of Ontario and the US state of New York. They form the southern end of the Niagara Gorge.

An Act of Congress is a statute enacted by the United States Congress. It can either be a Public Law, relating to the general public, or a Private Law, relating to specific institutions or individuals.

The United States Army Corps of Engineers (USACE) is a U.S. federal agency under the Department of Defense and a major Army command made up of some 37,000 civilian and military personnel, making it one of the world's largest public engineering, design, and construction management agencies. Although generally associated with dams, canals and flood protection in the United States, USACE is involved in a wide range of public works throughout the world. The Corps of Engineers provides outdoor recreation opportunities to the public, and provides 24% of U.S. hydropower capacity.

The treaty limited the use of water during the nights and weekends. In order to overcome these times where water would not be as readily available all the plans submitted called for a reservoir to be built that could feed the power plant during these off times. However squabbling in Congress on whether the development should be public or private had delayed plans for several years. But June 7, 1956, a rock slide destroyed the Schoellkopf Power Station, creating a critical shortage of power in the Mid-Atlantic Region. Faced with this crisis Congress authorized the FPC to issue the Power Authority of New York a license to implement a plan that would utilize all available power that the 1950 treaty afforded the United States.

The Schoellkopf Power Station was built on land owned by Jacob F. Schoellkopf above the Niagara Gorge near the American Falls, 1,600 feet (490 m) downriver from Rainbow Bridge. Understanding the growing need for electricity and the role of harnessing the Falls, Schoellkopf purchased the land for the hydraulic canal on May 1, 1877 for $71,000. After Schoellkopf Sr.'s death in 1903, his sons took over the operation of the power business. In 1918, Schoellkopf's Niagara Falls Hydraulic Power and Manufacturing Company merged with the Niagara Falls Power Company, which was owned by Edward Dean Adams. The Plant was considered by some to be the greatest hydroelectric plant at the time. Much of the site is, as of 2014, occupied by the Maid of the Mist tour boat company as a maintenance area and off-season boat storage yard. The power station remains form a part of a fully accessible tourist attraction associated with Niagara Falls State Park and is connected with its Niagara Gorge hiking trail system.

In light of its new authority via an Act of Congress the Power Authority began its hearing process and notified all interested parties, including the Tuscarora Indian Nation. In the hearing the Tuscarora objected to the Power Authority’s plan and stated that "the applicant lacks the authority to acquire them." During the hearings it was stated that Power Authority would need about 1,000 acres (4.0 km²) of land from a roughly 4,000-acre (16 km²) parcel of land. The land in question was not part of the actual reservation as mandated by treaty, but purchased by the Tuscarora with assistance from the Secretary of War. After the hearings the FPC issued the license and found that the land in question was almost completely undeveloped. On May 5, 1958, the FPC issued its order approving the licensee's revised exhibit which precisely delineated the location, area, and acreage to be embraced by the reservoir, which included 1,383 acres (5.60 km²) of the Tuscaroras' lands. On May 16, 1958, the Tuscarora filed a petition at the Court of Appeals for the District of Columbia.

United States Court of Appeals for the District of Columbia Circuit current federal appellate court

The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all U.S. Courts of Appeals, are heard on a discretionary basis by the Supreme Court. It should not be confused with the United States Court of Appeals for the Federal Circuit, which is limited in jurisdiction by subject matter rather than geography, or with the District of Columbia Court of Appeals, which is roughly equivalent to a state supreme court in the District of Columbia, and was established in 1970 to relieve the D.C. Circuit from having to take appeals from the local D.C. trial court.

District Court

The Tuscarora Indian Nation contended that seizure of their lands was a violation under the Federal Power Act. Section 4 of the act declared that reservation land may not be acquired when it would "interfere or be inconsistent with the purpose for which such reservation was created or acquired." The Court of Appeals found that the land in question was indeed part of the Indian Reservation and could not be used and remanded the FPC. The Federal Power Act defined reservations as: "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 purpose; but shall not include national monuments or national parks."

Upon this decision the Commission held more hearings, studying both the court’s decision and exploring other locations for the reservoir. However the Commission found that other sites would cause significant delay to the project, cause unwanted community disruption, unreasonable expense and would reduce the capacity of the reservoir. This would lead to a violation of Public Law 85-159, which mandated that the commission use all of the possible energy that could be extracted from the falls. The Commission then appealed to the Supreme Court.

Opinion

Majority

Justice Whittaker wrote the opinion for the Court. The question as presented by Whittaker was "...may [the land] be taken for the storage reservoir of a hydroelectric power project, upon the payment of just compensation...". The court did not argue whether the land was part of the Tuscarora Reservation but whether it was a reservation as defined in the Federal Power Act.

Charles Evans Whittaker was an Associate Justice of the United States Supreme Court from 1957 to 1962. After working in private practice in Kansas City, Missouri, he was nominated for the United States District Court for the Western District of Missouri. In 1956, President Dwight D. Eisenhower nominated Whittaker to the United States Court of Appeals for the Eighth Circuit. In 1957, he won confirmation to the Supreme Court of the United States, thus becoming the first individual to serve as a judge on a federal district court, a federal court of appeals, and the United States Supreme Court. During his brief tenure on the Warren Court, Whittaker emerged as a swing vote. In 1962, he suffered a nervous breakdown and resigned from the Court. After leaving the Supreme Court, he served as chief counsel to General Motors and frequently criticized the Civil Rights Movement and the Warren Court.

The court found that for the purposes of the law, a reservation was any land owned by the Federal Government of the United States. This would thus exclude Indian Reservations from its definition.

Dissent

Justice Black wrote a dissent. He argued that the definition of reservation was trivial and should not have been analyzed by the court. In his dissent Black wrote of a string of injustices by the United States Government and violations of treaties. He added that this ruling was another broken promise. He finished with:

Hugo Lafayette Black was an American politician and jurist who served in the United States Senate from 1927 to 1937, and as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. A member of the Democratic Party and a devoted New Dealer, Black endorsed Franklin D. Roosevelt in both the 1932 and 1936 presidential elections. Having gained a reputation in the Senate as a reformer, Black was nominated to the Supreme Court by President Roosevelt and confirmed by the Senate by a vote of 63 to 16. He was the first of nine Roosevelt nominees to the Court, and he outlasted all except for William O. Douglas.

Great nations, like great men, should keep their word.

Interpretation of the Nonintercourse Act

Although the Court found that the Nonintercourse Act did not bar condemnation under the Federal Power Act, it laid down an expansive interpretation of the Act:

As to the Tuscaroras' contention that [25 U.S.C. § 177] prohibits the taking of any of their lands for the reservoir ‘without the express and specific consent of Congress,’ one thing is certain. It is certain that if s 177 is applicable to alienations effected by condemnation proceedings under s 21 of the Federal Power Act, the mere ‘expressed consent’ of Congress would be vain and idle. For s 177 at the very least contemplates the assent of the Indian nation or tribe. And inasmuch as the Tuscarora Indian Nation withholds such consent and refuses to convey to the licensee any of its lands, it follows that the mere consent of Congress, however express and specific, would avail nothing. Therefore, if s 177 is applicable to alienations effected by condemnation under s 21 of the Federal Power Act, the result would be that the Tuscarora lands, however imperative for the project, could not be taken at all.
But s 177 is not applicable to the sovereign United States . . . .^[1]

George C. Shattuck, who successfully litigated the Oneida I (1974) decision more than a decade later cited Tuscarora as the "key that helped me see the legal issues in the correct perspective."^[2] In his report to his firm, persuading them to take the case on a contingency fee basis, Shattuck repeated several arguments against Indian land claims and concluded: "Before the Tuscarora case we might have backed away for one or more of the above reasons."^[3] Shattuck notes that, "[i]ronically, the state's brief in the Tuscarora case . . . gave me my first real understanding of how the Nonintercourse Act worked and how it might be used to press the Oneida claim."^[4] Explaining the Oneida I holding, Shattuck states that "[t]he prophesy of the 1960 Tuscarora case became reality in 1974."^[5]

Related Research Articles

The Tuscarora are a Native American tribe and First Nations band government of the Iroquoian-language family, with members today in North Carolina, New York, and Ontario. They coalesced as a people around the Great Lakes, likely about the same time as the rise of the Five Nations of the historic Iroquois Confederacy, also Iroquoian-speaking and based then in present-day New York.

Indian Territory U.S. 17th-, 18th- and early-20th-century territory set aside by the United States Government for the relocation of the indigenous peoples of the Americas

As general terms, Indian Territory, the Indian Territories, or Indian country describe an evolving land area set aside by the United States Government for the relocation of Native Americans who held aboriginal title to their land. In general, the tribes ceded land they occupied in exchange for land grants in 1803. The concept of an Indian Territory was an outcome of the 18th- and 19th-century policy of Indian removal. After the Civil War (1861–1865), the policy of the government was one of assimilation.

The Tuscarora Reservation is an Indian reservation in Niagara County, New York. The population was 1,152 at the 2010 census. The Tuscarora are a federally recognized tribe and the Sixth Nation of the Haudenosaunee or Iroquois Confederacy active before the American Revolutionary War.

Indian reservation land managed by Native American tribes under the US Bureau of Indian Affairs

An Indian reservation is a legal designation for an area of land managed by a federally recognized Native American tribe under the U.S. Bureau of Indian Affairs rather than the state governments of the United States in which they are physically located. Each of the 326 Indian reservations in the United States is associated with a particular Native American nation. Not all of the country's 567 recognized tribes have a reservation—some tribes have more than one reservation, while some share reservations. In addition, because of past land allotments, leading to some sales to non–Native Americans, some reservations are severely fragmented, with each piece of tribal, individual, and privately held land being a separate enclave. This jumble of private and public real estate creates significant administrative, political, and legal difficulties.

The Nonintercourse Act is the collective name given to six statutes passed by the Congress in 1790, 1793, 1796, 1799, 1802, and 1834 to set Amerindian boundaries of reservations. The various Acts also regulate commerce between Americans and Native Americans. The most notable provisions of the Act regulate the inalienability of aboriginal title in the United States, a continuing source of litigation for almost 200 years. The prohibition on purchases of Indian lands without the approval of the federal government has its origins in the Royal Proclamation of 1763 and the Confederation Congress Proclamation of 1783.

The Oneida Indian Nation (OIN) or Oneida Nation is a federally recognized tribe of Oneida people in the United States. The tribe is headquartered in New York, where the tribe originated and held its historic territory long before European colonialism. It is an Iroquoian-speaking people, and one of the Five Nations of the Iroquois Confederacy, or Haudenosaunee. Three other federally recognized Oneida tribes operate in locations where they migrated and were removed to during and after the American Revolutionary War: one in Wisconsin in the United States, and two in Ontario, Canada.

United States v. Kagama, 118 U.S. 375 (1886), was a United States Supreme Court case that upheld the constitutionality of the Major Crimes Act of 1885. This Congressional act gave the federal courts jurisdiction in certain cases of Indian-on-Indian crimes, even if the crimes were committed on an Indian reservation. Kagama, a Yurok Native American (Indian) accused of murder, was selected as a test case by the Department of Justice to test the constitutionality of the Act.

United States v. Sandoval, 231 U.S. 28 (1913), was a United States Supreme Court case deciding whether the federal government's law prohibiting liquor on the land of Santa Clara Pueblo impermissibly infringed on the State of New Mexico's police power under the equal footing doctrine. In a unanimous decision, the Court upheld the law and Congress' ability to recognize and regulate Tribes. Citing broad Congressional authority in Kagama, recognition of Tribes subject to the guardianship of the federal government falls on Congress, not the Court, as long as recognition is not "arbitrary" and actually reflects "distinctly Indian communities."

City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005), was a US Supreme Court case in which the Court held that repurchase of traditional tribal lands 200 years later did not restore tribal sovereignty to that land.

The United States was the first jurisdiction to acknowledge the common law doctrine of aboriginal title. Native American tribes and nations establish aboriginal title by actual, continuous, and exclusive use and occupancy for a "long time." Individuals may also establish aboriginal title, if their ancestors held title as individuals. Unlike other jurisdictions, the content of aboriginal title is not limited to historical or traditional land uses. Aboriginal title may not be alienated, except to the federal government or with the approval of Congress. Aboriginal title is distinct from the lands Native Americans own in fee simple and occupy under federal trust.

Oneida Indian Nation of New York v. County of Oneida, 414 U.S. 661 (1974), is a landmark decision by the United States Supreme Court concerning aboriginal title in the United States. The original suit in this matter was the first modern-day Native American land claim litigated in the federal court system rather than before the Indian Claims Commission. It was also the first to go to final judgement.

County of Oneida v. Oneida Indian Nation of New York State, 470 U.S. 226 (1985), was a landmark United States Supreme Court case concerning aboriginal title in the United States. The case, sometimes referred to as Oneida II, was "the first Indian land claim case won on the basis of the Nonintercourse Act."

Seneca Nation of Indians v. Christy, 162 U.S. 283 (1896), was the first litigation of aboriginal title in the United States by a tribal plaintiff in the Supreme Court of the United States since Cherokee Nation v. Georgia (1831). It was the first such litigation by an indigenous plaintiff since Fellows v. Blacksmith (1857) and its companion case of New York ex rel. Cutler v. Dibble (1858). The New York courts held that the 1788 Phelps and Gorham Purchase did not violate the Nonintercourse Act, one of the provisions of which prohibits purchases of Indian lands without the approval of the federal government, and that the Seneca Nation of New York was barred by the state statute of limitations from challenging the transfer of title. The U.S. Supreme Court declined to review the merits of lower court ruling because of the adequate and independent state grounds doctrine.

Confederation Congress Proclamation of 1783 was a proclamation by the Congress of the Confederation dated September 22, 1783 prohibiting the extinguishment of aboriginal title in the United States without the consent of the federal government. The policy underlying the proclamation was inaugurated by the Royal Proclamation of 1763, and continued after the ratification of the United States Constitution by the Nonintercourse Acts of 1790, 1793, 1796, 1799, 1802, and 1833.

The Narragansett land claim was one of the first litigations of aboriginal title in the United States in the wake of the U.S. Supreme Court's landmark Oneida Indian Nation of New York v. County of Oneida (1974), or Oneida I, decision. The Narragansett claimed a few thousand acres of land in and around Charlestown, Rhode Island, challenging a variety of early 19th century land transfers as violations of the Nonintercourse Act, suing both the state and private land owners.

Fellows v. Blacksmith, 60 U.S. 366 (1857), is a United States Supreme Court decision involving Native American law. John Blacksmith, a Tonawanda Seneca, sued agents of the Ogden Land Company for common law claims of trespass, assault, and battery after he was forcibly evicted from his sawmill by the Company's agents. The Court affirmed a judgement in Blacksmith's favor, notwithstanding the fact that the Seneca had executed an Indian removal treaty and the Company held the exclusive right to purchase to the land by virtue of an interstate compact ratified by Congress.

New York ex rel. Cutler v. Dibble, 62 U.S. 366 (1858), was a companion case to the more well-known Fellows v. Blacksmith (1857). At the time Fellows was decided, this case had reached the U.S. Supreme Court but had not yet been argued.

Aboriginal title in New York refers to treaties, purchases, laws and litigation associated with land titles of aboriginal peoples of New York, in particular, to dispossession of those lands by actions of European Americans. The European purchase of lands from indigenous populations dates back to the legendary Dutch purchase of Manhattan in 1626, "the most famous land transaction of all." More than any other state, New York disregarded the Confederation Congress Proclamation of 1783 and the follow-on Nonintercourse Acts, purchasing the majority of the state directly from the Iroquois nations without federal involvement or ratification.

South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498 (1986), is an important U.S. Supreme Court precedent for aboriginal title in the United States decided in the wake of County of Oneida v. Oneida Indian Nation of New York State (1985). Distinguishing Oneida II, the Court held that federal policy did not preclude the application of a state statute of limitations to the land claim of a tribe that had been terminated, such as the Catawba tribe.

United States v. Forty-Three Gallons of Whiskey, 108 U.S. 491 (1883), is a United States Supreme Court case in which the Court held that Congress has the power to regulate the possession and sale of liquor in the lands of and near Native American tribes and upheld an order to seize barrels containing forty-three gallons of whiskey that were being traded on Native American land.

References

↑ 362 U.S. at 119--20.
↑ Shattuck, The Oneida land claims: a legal history (1991), p. 7.
↑ Shattuck, p. 8.
↑ Shattuck, p. 21.
↑ Shattuck, p. 31.

External links

Text of Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99(1960) is available from: Justia Library of Congress Oyez

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.

[1] 362 U.S. at 119--20.

[2] Shattuck, The Oneida land claims: a legal history (1991), p. 7.

[3] Shattuck, p. 8.

[4] Shattuck, p. 21.

[5] Shattuck, p. 31.