October 1981

8 ILR 3107

Examination of the language of Article IX, Cl. 4, its legisla tive history, contemporaneous interpretation of the provision by those entrusted with its enforcement, and pertinent case law, reveals insufficient support for any of the three proposed constructions based upon asserted definitive interpretations of the two limiting provisos. However, the foregoing provides ample basis for a finding by the court that because of the unresolved internal inconsistencies in Article IX, Cl. 4 of the Articles of Confederation regarding the management of Indian affairs, the provision may not be construed as an express delegation to the federal government of the sole and exclusive power to extinguish Indian title to land located within the states during the Confederacy period. Therefore, it cannot provide a legal basis for plaintiffs' claim that the Treaties of 1785 and 1788 violated the Articles of Confederation.

(The court agrees with some of the defendants that the legis lative history of Article IX, Cl. 4 "does not clearly show any thing." except that the final version was a compromise reached between the "landless" and "landed" states. More cohesive drafts that would have given the federal government greater powers were rejected by the Continental Congress.)

The Indian Claims Commission in Oneida Nation of New York v. United States, supra., 37 Ind. Cl. Comm. at 544, concluded that the proviso must have been designed to protect the states' right of pre-emption since that was the only legislative right which was asserted by the Crown with respect to the Indians and, therefore, the only right which, the states inherited at their independence. While that may be true, the legislative history does not provide an answer to the question of whether the legislative right which was preserved was limited to the right of preemption as defined by the plaintiffs or, as claimed by the defendants, was meant to include the power to extinguish Indian title.

Thus, as previously concluded by the court, while the legis lative history does not offer much support for any of the proposed constructions of the two limiting provisos of Article IX, Cl. 4, it does make it clear that there was a serious conflict between those favoring a strong central government in the management of Indian affairs and those interested in protecting the sovereign power of the states. The lack of consensus over the management of Indian affairs resulted in a compromise by which the drafters "endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete sovereignty in the states, to subvert a mathematical axiom by taking away a part and letting the whole remain." The Federalist No. 42, supra.

(According to the court, Article IX, CI. 4 did not effectively delegate the state's sovereign power to extinguish Indian title to land to the federal government. The court rejects plaintiffs' argument that the Treaties of 1785 and 1788 violated the Proclamation of September 22, 1783 and the Treaty of Fort Stanwix of 1784. The court finds that the Proclamation indicated only that the Continental Congress was so uncertain of its power to regulate land cessionș within the states that it did not attempt to assert that authority. All of the circumstances surrounding the negotiations for the Treaty of Fort Stanwix seem 10 the court to indicate that the states were not required to obtain congressional approval of land acquisitions from the Indians.)

As previously pointed out, no court has yet had to construe Article IX, CI. 4 for the purpose of determining the validity of treaties entered into between the states and Indian tribes for the purchase of land located within the geographical boundaries of those states during the Confederacy period. How

ever, the Supreme Court has on occasion referred to the provi sion in dicta and has consistently recognized that regardless of what may have been the intent of the drafters, the ambiguous language of Article IX, CL. 4 placed serious restrictions on federal power to regulate Indian affairs during the Confederation period.

For example, Chief Justice Marshall in Worcester v. Georgia, supra at 558-59 wrote the following in reference to Article IX, CI. 4:

[the Articles of Confederation) also gave the United States in congress assembled the sole and exclusive right of regulating the trade and managing all the affairs with Indians, not members of any of the states; provided that the legislative power of any state within its own limits be not infringed or violated."

The ambiguous phrases which follow the grant of power to the United States, were so construed by the states of North Carolina and Georgia as to annul the power itself. The discontents and confusion resulting from these conflicting claims, produced representations to congress, which were referred to a committee, who made their report in 1787. The report does not assent to the construction of the two states, but recommends an accommodation, by liberal cessions of territory, or by an admission, on their part, of the powers claimed by congress. The correct exposition of this article is rendered unnecessary by the adoption of our existing constitution. That instrument confers on congress the powers of war and peace; of making treaties, and of regulating commerce with foreign nations, and among the several states, and with the Indian tribes. These powers comprehend all that is required for the regulation of our intercourse with the Indians. They are not limited by any restrictions on their free actions; the shackles imposed on this power, in the confederation, are discarded. (Emphasis added.)

Some time later, in U.S. v. 43 Gallons of Whiskey, supra. at 194, the Supreme Court recognized that while

[u]nder the articles of confederation, the United States had the power of regulating the trade and managing all affairs with the Indians not members of any of the States; provided that the legislative right of a State within its own limits be not infringed or violated, folf necessity, these limitations rendered the power of no practical value. (Emphasis added.)

More recently, the Second Circuit in Mohegan Tribe v. State of Connecticut, supra at 615, observed that:

[t]he limitations on federal authority to deal with Indian affairs contained in Article IN of the Articles of Confederation created uncertainty over the relative sphere of federal and state authority and were removed in the Constitution.

While none of these decisions is controlling on the issue, the quoted dicta regarding Article IX, Cl. 4 clearly lends support to the court's conclusion that the provision, because of the internal ambiguities which were not resolved during the Confederacy period, may not now be construed as an express delegation to the federal government of the states' sovereign power to extinguish Indian title to land within its borders.

(The court considers the Proclamation of September 22. 1783 to be limited by its language to purchases "without the limits or jurisdiction of any particular state." Since the court has determined that Article IN, CI 4 "did not constitute an effective delegation of the states' sovereign power to extinguish Indian title within its boundaries to the federal government," to attribute such power to the Continental Congress through the Proclamation would have been an ultra vires act. Similarly, since the Articles of Confederation did not give

October 1981

8 ILR 3109

claim upon which relief may be granted in the federal courts."

(The court comments that the Oneidas understood the 1788 Treaty to be a lease, not a trust. Discussing perpetual leases briefly, the court notes that such a lease constituted, in essence, a conveyance from the tribe to the state of New York, leaving the Indians no more than a right to future rental paymenis.)

In deciding that the plaintiffs' have failed to state a claim under the Nonintercourse Act, this court has not reached any conclusions with regard to the merits of their argument that the 1788 Treaty constituted a lease under New York State law, nor does it have jurisdiction to do so. Relying on the decision of the Supreme Court in Oneida Indian Nation v. County of Oneida, supra, this court initially concluded that it had jurisdiction over these actions under both 28 U.S.C. §§ 1331 and 1362. The court's finding of jurisdiction was based upon the fact that the plaintiffs in these actions asserted claims "arising under the Constitution, laws [and] treaties of the United States." 28 U.S.C. §§ 1331 and 1362.

However, the court has since determined that the plaintiffs have failed to state a claim under the Articles of Confederation, the Proclamation of September 22, 1783, the Treaty of Fort Stanwix and the Constitution. Having now concluded that the plaintiffs' lease argument does not state a claim for relief under the Nonintercourse Act, they are left without any federal basis for their otherwise state law lease claim.

Furthermore, it is the opinion of this court, that the decision of the Supreme Court in the Oneida Indian Nation case does not either require or provide a basis for it to assume jurisdiction over a purely state law claim solely because it involves an Indian land transaction. The plaintiffs in that action challenged the validity of a 1788 Treaty with New York State, alleging that it violated the federal guarantees contained in treaties entered into between the Six Nations and the United States as well as the Nonintercourse Act. In finding jurisdiction, the court concluded that the plaintiffs had "asserted a current right to possession conferred by federal law, wholly independent of state law."'"' Oneida Indian Nation, supra at 666, 94 S.Ct. 777. Plaintiffs herein also asserted a right to possession under federal law, and this court assumed jurisdiction over their claims. However, now that those federal claims have been dismissed, plaintiffs' lease claim is "wholly" dependent upon state law and may not be pursued in this Court."

"Plaintiffs' lease and trust arguments do not raise the same justiciability problem as did their claims based on allegations of fraud and deceit. Although the court may not inquire into the justness of the method used to extinguish title, it is not precluded from determining whether the treaty in question actually purported to extinguish title. See United States v. Santa Fe Pacific, supra (Court made determination as to whether Congress had intended to extinguish the rights which an Indian tribe had in its ancestral home, while acknowledging that if Congress had intended to do so, the judiciary could not inquire as to the method used).

"The issue of the extent of federal authority over Indian land transactions during the Confederacy period was not before the Supreme Court in the Oneida Indian Nation case and was obviously not consid. ered by them. In explaining its finding that the plaintiffs' complaint was based on federal law, the Court having recognized that fee title was at one point vested in the state, stated that "[o]nce the United States was organized and the Constitution adopted,... tribal rights to Indian lands became the exclusive province of federal law." Id. at 667, 94 S.Ct. 777. (Emphasis added.)

"If any of the plaintiffs' federal claims had survived these motions to dismiss, the court might have been able to exercise pendent jurisdiction over their state law lease claim. However, when the claims upon which federal jurisdiction is based are dismissed on a Rule 12(b)(6) motion, the pendent state claims must be . well. United Mine Workers of America v. Gibbs, supra.

Vagueness Claim

(The court finds that the Treaty of 1788 is not void for vagueness. Although plaintiffs allege that there was a verbal agreement providing for increases in rental payments, such a clause is not contained in the Treaty and the court concludes that it cannot rewrite the treaty to include such a clause.)

Conclusion

For the reasons given above, this court finds that the plaintiffs in these actions have failed to state any claims upon which relief may be granted in the federal courts. Therefore, the defendants' Rule 12(b)(6) motions to dismiss are granted, and the complaints in 78-CV-104 and 79-CV-798 are hereby dismissed. Having dismissed the complaint in 79-CV-798, the action in which the Six Nations and its constituent members have moved to intervene, the court now denies that intervention motion.

It is so ordered.

Counsel for Oneida Indian Nation of Wisconsin and Oneida of the Thames Band

Arlinda Locklear and L.A. Ashenbrenner, Native American Rights Fund, Washington, D.C.; Francis Skenandore, Oneida, Wisconsin, of counsel

Counsel for Oneida Nation of New York, et al.

Bertram E. Hirsch, Bellerose, New York

Counsel for the state of New York and state agencies and Officials

Robert Abrams, New York State Attorney General, Albany, New York

Counsel for Defendant Counties and Defendant Ryan, individually and as class representatives

Alan van Gestel, Goodwin, Proctor & Hoar, Boston, Massachusetts

Counsel for St. Regis Paper Company, individually and as class representative and Georgia-Pacific Corp., as class repre⚫sentative

Richard D. Davidson, Hiscock, Lee, Rogers, Henley &
Barclay, Syracuse, New York

Counsel for Georgia-Pacific Corp., individually

Arnold Bauman and Thomas M. Geisler, Shearman & Sterling, New York, New York

Counsel for Defendant-Intervenor New York State Electric & Gas Company

Howard M. Schmertz and Frederic H. Lawrence, Huber, Magill, Lawrence & Farrell, New York, New York

Counsel for the Six Nations, amicus curiae

Robert T. Coulter, Indian Law Resource Center, Washington, D.C.