Syllabus.

FEDERAL POWER COMMISSION v. TUSCARORA INDIAN NATION.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

No. 63. Argued December 7, 1959. Decided March 7, 1960.*

Under § 21 of the Federal Power Act, certain lands purchased and owned in fee simple by the Tuscarora Indian Nation and lying adjacent to a natural power site on the Niagara River may be taken for the storage reservoir of a hydroelectric power project, upon payment of just compensation, by the Power Authority of the State of New York under a license issued to it by the Federal Power Commission as directed by Congress in the Act of August 21, 1957, 71 Stat. 401. Pp. 100-124.

(1) Inasmuch as the lands here involved are owned in fee simple by the Tuscarora Indian Nation and no "interest" in them is "owned by the United States," they are not within a "reservation," as that term is defined in §3 (2) of the Federal Power Act, and, therefore, a Commission finding under § 4 (e) “that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired" is not necessary to the issuance of a license embracing the lands in question. Pp. 110-115.

(2) By the broad general terms of § 21 of the Federal Power Act, Congress has authorized the Federal Power Commission's licensees to take lands owned by Indians, as well as those of all other citizens, when needed for a licensed project, upon payment of just compensation; the lands in question are not subject to any treaty between the United States and the Tuscarora Indian Nation; and 25 U. S. C. § 177, forbidding a transfer of lands from Indians unless made by a treaty or convention entered into pursuant to the Constitution, does not apply to the United States itself nor prohibit it or its licensees under the Federal Power Act from taking such lands in the manner provided by § 21, upon payment of just compensation. Pp. 115-124.

105 U. S. App. D. C. 146, 265 F. 2d 338, reversed.

*Together with No. 66, Power Authority of the State of New York v. Tuscarora Indian Nation, also on certiorari to the same Court.

Opinion of the Court.

362 U.S.

Solicitor General Rankin argued the cause for petitioner in No. 63. With him on the brief were Assistant Attorney General Doub, Samuel D. Slade, Lionel Kestenbaum, Willard W. Gatchell, John C. Mason, Leonard D. Eesley and Joseph B. Hobbs.

Thomas F. Moore, Jr. argued the cause for petitioner in No. 66. With him on the brief were Samuel I. Rosenman, Frederic P. Lee and John R. Davison.

Arthur Lazarus, Jr. argued the causes for respondent. With him on the brief was Eugene Gressman.

MR. JUSTICE WHITTAKER delivered the opinion of the Court.

The ultimate question presented by these cases is whether certain lands, purchased and owned in fee simple by the Tuscarora Indian Nation and lying adjacent to a natural power site on the Niagara River near the town. of Lewiston, New York, may be taken for the storage reservoir of a hydroelectric power project, upon the payment of just compensation, by the Power Authority of the State of New York under a license issued to it by the Federal Power Commission as directed by Congress in Public Law 85-159, approved August 21, 1957, 71 Stat. 401.

The Niagara River, an international boundary stream and a navigable waterway of the United States, flows from Lake Erie to Lake Ontario, a distance of 36 miles. Its mean flow is about 200,000 cubic feet per second. The river drops about 165 feet at Niagara Falls and an additional 140 feet in the rapids immediately above and below the falls. The "head" created by these great falls, combined with the large and steady flow of the river, makes the Lewiston power site, located below the rapids, an extremely favorable one for hydroelectric development.

99

Opinion of the Court.

For the purpose of avoiding "continuing waste of a great natural resource and to make it possible for the United States of America and Canada to develop, for the benefit of their respective peoples, equal shares of the waters of the Niagara River available for power purposes," the United States and Canada entered into the Treaty of February 27, 1950,' providing for a flow of 100,000 cubic feet per second over Niagara Falls during certain specified daytime and evening hours of the tourist season (April 1 to October 31) and of 50,000 cubic feet per second at other times, and authorizing the equal division by the United States and Canada of all excess waters for power purposes.2

In consenting to the 1950 Treaty, the Senate imposed the condition that "no project for redevelopment of the United States' share of such waters shall be undertaken until it be specifically authorized by Act of Congress." 1 U. S. T. 694, 699. To that end, a study was made and reported to Congress in 1951 by the United States Army Corps of Engineers respecting the most feasible plans for utilizing all of the waters available to the United States under the 1950 Treaty, and detailed plans embodying other studies were prepared and submitted to Congress prior to June 7, 1956, by the Bureau of Power of the Federal Power Commission, the Power Authority of New

11 U. S. T. 694.

2 The excess flow of water available for power purposes under the 1950 Treaty was estimated to fluctuate between 44,000 and 210,000 cubic feet per second, depending on the flow, the time of year, and the time of day. S. Rep. No. 539, 85th Cong., 1st Sess., p. 4.

The 1950 Treaty superseded the Boundary Waters Treaty of January 11, 1909 (Treaty Series 548, 36 Stat. 2448) which limited diversions of water by Canada to 36,000, and by the United States to 20,000, cubic feet per second. Beginning in 1921, the waters available to the United States under that treaty were utilized by Niagara Mohawk Power Corporation in its Schoellkopf hydroelectric plant, under a federal license expiring in 1971. The rated capacity of that plant was 360,000 kilowatts.

Opinion of the Court.

362 U.S.

York, and the Niagara Mohawk Power Corporation.3 To enable utilization of all of the United States' share of the Niagara waters by avoiding waste of the nighttime and week-end flow that would not be needed at those times for the generation of power, all of the studies and plans provided for a pumping-generating plant to lift those waters at those times into a reservoir, and for a storage reservoir to contain them until released for use-through the pumping-generating plant, when its motors (operating in reverse) would serve as generators—during the daytime hours when the demand for power would be highest and the diversion of waters from the river would be most restricted by the treaty. Estimates of dependable capacity of the several recommended projects varied from 1,240,000 to 1,723,000 kilowatts, and estimates of the needed reservoir capacity varied from 22,000 acre-feet covering 850 acres to 41,000 acre-feet covering 1,700 acres. The variations in these estimates were largely due to differing assumptions as to the length of the daily period of peak demand.

Although there was "no controversy as to the most desirable engineering plan of development," there was serious disagreement in Congress over whether the project should be publicly or privately developed and over marketing preferences and other matters of policy. That disagreement continued through eight sessions of Committee Hearings, during which more than 30 proposed bills were considered, in the Eighty-first to Eighty-fifth Congresses, and delayed congressional authorization of the project for seven years.

3 S. Rep. No. 539, 85th Cong., 1st Sess., pp. 5–6.

4 Ibid.

Hearings were held before the Senate Committee on Public Works, or its Subcommittee, in the Eighty-second, Eighty-third and Eightyfourth Congresses, and in the first session of the Eighty-fifth Congress; before the House Committee on Public Works in the first

99

Opinion of the Court.

On June 7, 1956, a rock slide destroyed the Schoellkopf plant. This created a critical shortage of electric power in the Niagara community. It also required expansion of the plans for the Niagara project if the 20,000 cubic feet per second of water that had been reserved for the Schoellkopf plant was to be utilized. Accordingly, the Power Authority of New York prepared and submitted to Congress a major revision of the project plans. Those revised plans, designed to utilize all of the Niagara waters available to the United States under the 1950 Treaty, provided for an installed capacity of 2,190,000 kilowatts, of which 1,800,000 kilowatts would be dependable power for 17 hours per day, necessitating a storage reservoir of 60,000 acre-feet capacity covering about 2,800 acres.

sessions of the Eighty-first and Eighty-second Congresses, and in the first and second sessions of the Eighty-fourth Congress. Joint hearings were held by the House Committee and a Subcommittee of the Senate Committee in the Eighty-third Congress, first session. Reports on these bills were S. Rep. No. 2501, 83d Cong., 2d Sess.; H. R. Rep. No. 713, 83d Cong., 1st Sess.; S. Rep. No. 1408, 84th Cong., 2d Sess.; H. R. Rep. No. 2635, 84th Cong., 2d Sess. The Committee Reports on the bill which was finally enacted were S. Rep. No. 539, 85th Cong., 1st Sess.; H. R. Rep. No. 862, 85th Cong., 1st Sess. • See note 2.

The Report of the Senate Committee on Public Works of June 27, 1957, reporting out the bill that was finally adopted, contained the following statement:

"The proposals by the Power Authority of the State of New York at present contemplate a project with a total installed capacity of 2,190,000 kilowatts. Of this 1,800,000 will constitute firm power on a 17-hour-day basis. They anticipate that in order to achieve this amount of firm capacity pump-storage and pumping-generating facilities will be required." S. Rep. No. 539, 85th Cong., 1st Sess., p. 5.

The Report of the House Committee on Public Works of July 23, 1957, contained the following statement:

"As a result of the [Schoellkopf] disaster, the redevelopment project will be enlarged so as to develop the water formerly utilized in the destroyed plant. The proposal now contemplates a project.

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