F. P. C. v. TUSCARORA INDIAN NATION

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Argument of J. Lee Rankin

Chief Justice Earl Warren: Number 63, Federal Power Commission, Petitioner versus Tuscarora Indian Nation.

And Number 66, The Power Authority of the State of New York, Petitioner versus The Tuscarora Indian Nation.

Mr. Solicitor General.

Mr. J. Lee Rankin: Mr. Chief Justice and may it please the Court.

This action involves the right of the New York Power Authority to take the lands of the Tuscarora Indian reservation to carry out a project licensed by the Federal Power Commission in connection with the Niagara River Development.

In order to fully understand the problems that had to be dealt with by the Commission and the courts below, we have to turn back shortly to the situation as it was before 1950, when the treaty involved in this development was executed between the parties, Canada and the United States.

At that -- under the old agreements between the two countries, the provision was that Canada should -- should have the right to use 36,000 cubic feet per second for hydroelectric power and the United States, 20,000 cubic feet per second for such development.

This gave Canada a very distinct advantage and the United States was eager to have a -- an equal share in the waters of the Niagara River for hydroelectric purposes.

So that a new treaty was negotiated and finally executed in 1950, which provided that each country would have an equal share of the waters.

But it also specifically provided for protection of the scenic attractions in the Niagara Falls area and required that a certain number of cubic feet per second be released during certain hours of the day running from morning until -- rather, early evening during the tourist season and a reduction during the month of October to a slightly lower amount.

The Niagara Mohawk Power Company, a private power development had a Schoellkopf works so called, on the river which was using the power under the old agreement, and also, it was called the Adams works which was largely obsolete.

And they had been draw -- having the use of the project waters prior to the controversy involved here.

From 1950 to 1957, the United -- the Congress was unable to arrive at any agreement to develop the United States' share of this water, because of many conflicts that developed in the Congress.

One of the principle ones was the issue whether it would be done by private power or public power interest.

And that controversy flared for those -- practically that entire period.

It was also the question of whether there would be a preference for cooperatives and municipalities which is not provided for under the Federal Power Act, and whether adjacent States would be able to get a share of this power.

Finally, the Schoellkopf works that were operated by the private power interest, Niagara Mohawk, fell into the river in 1956, in the middle of a summer and that precipitated actions so that the Congress was able to resolve the whole thing very rapidly.

And they passed what is known as a Public Law 85-159.

Now, this law was different than many of the acts of the Congress in this area, because in it, Congress deliberately and carefully tried to resolve the great issues that had been troubling both sides of the controversy's purport.

And it first prescribed in definite terms that the New York Power Authority would develop this power and which should be -- should receive a license.

It also provided that the license should be granted under that Act, 85-159, and not the Federal Power Act.

It provided that there would be a preference as to the power for the municipalities and cooperatives of 50% of all of the power that was developed in the project.

And that 20% of that 50% would be made available to adjacent States that is -- it was contemplated and were not spelled out to Ohio and Pennsylvania.

Justice Charles E. Whittaker: (Inaudible), do you say that Congress directed the issue to be licensed under 1957 Act to be granted then by the Federal Power Commission?

Mr. J. Lee Rankin: Yes.

It said so in so many words.

It also says that the grant shall be made by conforming to the rules and regulations of the Federal Power Commission.

But, if there should be any conflict between the two, that conflict should be resolved by the superseding of the new law, the 85-159, over the Act.

And that is in expressed terms.

I think you might wish to turn to that on page 79 of the Government's brief, Federal Power Commission, Section 2 at the bottom of the page.

The license issued under the terms of this Act shall be granted in conformance with Rules of Practice and Procedure of the Federal Power Commission.

Now, that is in -- in conformance with that law to see it distinguishes between the law and the Rules of Practice and Procedure of the Federal Power Commission.

But in the event of any conflict, the provisions of this Act shall govern in respect with the project herein authorized.

Justice Felix Frankfurter: The conflict -- I thought it said -- it isn't a conflict between this Act and Rules of Practical and Procedure according to your statement.

But in the event -- but in the event of any conflict, from what you tell us, this is intended to preclude reference to the general Power Act if there'll be a conflict between that and this specific statute, is that right?

Mr. J. Lee Rankin: That's the position of --

Justice Felix Frankfurter: And to show --

Mr. J. Lee Rankin: -- of the Federal Power Commission.

But I think the language itself is open to the interpretation that if there is any conflict with regard to the Federal Power -- Federal Rules -- or Federal Power Commission's Rules of the Practice and Procedure that that conflict shall be resolved.

And then the Act itself says that this grant shall be under this particular Act, so it defines exactly what the nature of this grant shall be.

Justice Felix Frankfurter: I -- I understand your suggestion.

But since this is a grant of the -- this is a specialized -- making a special grant, this Act defines the -- the grant and its limitations, if I say that.

But that would be by implication but -- but if you call attention to the fact that Section 2 refers to a conflict, and I was just wondering whether the conflict referred to is not the conflict between this Act and Rules of Practice rather than conflict between this Act and the original Act.

Mr. J. Lee Rankin: Mr. Justice Frankfurter, I think that the Act in its nature in the fact that it took seven years developing it, tried to resolve that this Act would control any conflicts with any legislation.

Justice Felix Frankfurter: I'm not questioning -- I understand that argument.

Mr. J. Lee Rankin: Yes.

Justice Felix Frankfurter: But that rests on the -- the -- on the contention, the natural contention that this covers all there is to be covered regarding the scope of what is granted and what is denied in the grant as against the -- the generalized Act.

Mr. J. Lee Rankin: Yes, Mr. Justice.

Justice Felix Frankfurter: That's your position?

Mr. J. Lee Rankin: Yes sir.

Justice Felix Frankfurter: But I am merely suggesting that it couldn't be reinforced, that that couldn't be reinforced by referring to the specific suggestion that a conflict, if there'd be one, shall make this Act controlling, because if the conflict, as I read in Section 2, the conflict that's contemplated and the conflict in this Act and the Rules you're conforming it to which, this grant must be exercised.

Mr. J. Lee Rankin: Mr. Justice, I think that is a correct reading of the Section.

I think that the history shows that Congress was trying to resolve all questions where there was a conflict.

Justice Felix Frankfurter: This is a -- your argument is, this is a self-contained Act which must be looked -- which must be looked to ascertain what is granted, the conditions of it, the limitations of it, and the procedure required.

That's your general proposition.

Mr. J. Lee Rankin: Yes, except that the Congress did contemplate that the Federal Power Commission would issue the license and it would use its rules and regulations, and so, I think you do have to have some reasons to that.

Justice Felix Frankfurter: It's there -- the reasons there shall be -- shall be among the rules or something that would apply to what the Act does, then the rules would we'd have to live with.

Mr. J. Lee Rankin: That's right.

Now, there was a further provision to take care of this Schoellkopf Plant and the private power development there, the Niagara Mohawk, that they will be forming 45,000 kilowatts that would be supplied to Niagara Mohawk and that they should try to see that the industrial developments had been relying upon this low cost power would get that power at the rates -- low rates that they had previously.

And that the rates would be regulated by the Power Authority.

They would have the right to build transmission lines to the various places that they sold the power and that the rates for the power on resale should be the lowest reasonable rates that they could obtain.

In presenting this to the Congress over the seven-year period, the reservoir was -- generally was throughout the period located at the same point as is now in conflict.

But due to this -- the difference, the change brought about by the Schoellkopf disaster in 1956.

The share of the Power Authority of the water had to be increased and therefore, the reservoir in order to use all of the share of the United States of the water from Niagara River.

The Act itself is explicit in that the Power Commission's license should provide and print it, so that the Power Authority, in this license, should use all, and I emphasize “all”, of the share of the United States of the water of the Niagara River.

Congress was explicit that the plants that were developed and the license would use every drop of this water that was the United States' share.

And that is, it's particularly clear in this case because prior to that time, all it got through the law, it contemplated that Niagara Mohawk would get enough of the water to handle the same share of the power development that it had done as a private development before.

But with the disaster of falling into the river, they decided to turn it all over to the public Power Authority of New York and that it should use all of the water that was the United States' share.

Now, mere presentations of how this would be done, they -- they have the benefit of the Bureau of Power or the Federal Power Authority back in 1949 in which it developed how this should be done and located the reservoir at the same general point, recommending a 22,000 acre-foot -- acre-feet reservoir at that point.

And then they referred it to the Corps of Engineers for its recommendation and the Corps of Engineers came up with a 30,000 acre-foot reservoir at the same point.

And then, the New York Power Authority, before the Schoellkopf disaster and they were given the additional water, recommended one of 41,000 acre-feet at the same point.

Now, it was clearly the Congress, throughout this whole period when these committees met time after time in regard to this matter and studied the project that there had to be a pump-generating reservoir and pump-generating plant in order use these waters properly, because there are -- when the peak demand is during the daylight hours through the week and over the weekend and during the night time hours, there isn't a demand for the power.

So, in order to get the benefit for the people of the country in that area of the greatest production of power possible, they devised the -- and all these -- there is no controversy between the engineers as to doing this.

There was a general agreement by all of them that presented anything, that this was the way to take the greatest advantage of this water development on the Niagara River and produce the most power for the benefit of the people in the area.

Now, this is the Niagara River and this is the fall, and this is the Schoellkopf Plant that fell into the river.

And here is the water intake.

That's where they take out of the river down this conduit near the railroad yard.

We'll come into the controversy later down here along the conduit, and here is the proposed reservoir.

There is no issue about this particular area.

This is the portion of the Tuscarora Reservation that's in issue, 13,083 acres.

This is the scaffold for the -- the land falls away sharply 150 to 200 feet and this -- it slopes down through this area and this is all the gulf, it would be like (Inaudible).

And I'll tell you why this can't be used for the reservoir as stated.

Here, the pump-generating plant, and that device is a very expensive and elaborate one, but in principle, it involves the running of the water through generators.

And then, also, these generators can be reversed and have pumps on them to push the water during the period that they can't use it for the greatest advantage to produce electricity because of the demand into this reservoir.

And then take the water back at the times that they can use it and run it down here through this generating plant and through this, the general generating plant, to get the highest production possible.

Justice William O. Douglas: Now, the Commission, in its opinion as I remember, said that if the Indian lands were not available, that there were alternative lands.

Could you point out where those are?

Mr. J. Lee Rankin: They didn't say what the alternative lands were in the first time.

And they finally said that they -- there were no alternative lands that were feasible, either engineering wise or otherwise.

It was just in the first time before that matter was sent back to them when they --

Justice William O. Douglas: That was at the first hearing.

Mr. J. Lee Rankin: That's right.

And when -- Mr. Justice, and when it -- it came back after the Court of Appeals sent it back to them, they determined the question of interference under 4 (e).

They then examined four different possibilities of reservoirs in the area making sure that none of them were feasible engineering wise or otherwise, economically and community disruptions.

And therefore, that the only place that it could be put was on the reservation and if they couldn't do that, they would have to reduce it accordingly.

Justice John M. Harlan: Was that because they made a mistake initially or because they'd allowed to break the procedure to point where in order to reserver to alternative lands, they would have -- it'd cost them a lot more money?

Mr. J. Lee Rankin: No.

It's -- I think it's quite clear that they examined exhaustively on the return -- remand of the matter to see whether the other places were practical and the other places -- at first, they didn't consider anything in here.

There's a very elaborate airport development there.

They didn't consider anything down in the industrial area or in the main part of Niagara Falls, as it means taking large parts of the city, or in part -- but they did consider all of this area and four different one that extended up here probably.

Four different projects among that came over in here has been thought.

As -- and they concluded that the -- there's just wasn't any feasibility engineering wise and that they were so costly that it was impractical and also that they put this reservoir in here that it would cut the City of Lewiston into two pieces in such a way that it would destroy their whole sewage and water and environment program and everything else.

So, that they did examine very carefully the various possibilities.

They also considered a plan that came down here in this slope area.

When they get down here in the slope area, that is considerably lower and some of that would be discharged, because the whole series of pump-generating reservoir is that you pump it up on an elevation.

And then you use gravity to let it flow down through the generators and produce the electricity.

And when you get down here on some of these slope, it's down at a level where it doesn't contribute anything to the fall or the header -- hydro when electric engineers speak of it.

And therefore, it gets no benefit of that and it's just as though you had so much level ground there that if you'd pour the water on, you try to hold it there, and then you have to get to head from the rest of the water, so that you lose all of the benefit of that water as far as producing electricity.

Now, the Commission also concluded that it was necessary to have 60,000 acre-feet of reservoir in order to fully use the United States' share.

And that determination was made by them after this exhaustive hearing.

Now, the question probably occurs to the Court as to whether or not the Congress had brought to its attention in explicit terms whether this would take the Tuscarora Reservation lands.

And we -- we do not think that as far as the Federal Power Commission is concerned that it did that it -- we think it's there by implication that from -- and I'll try to develop that, but it was not on any of the maps shown this is Tuscarora or Tuscarora written over to show that the reservoir as proposed would extend over the Tuscarora Indian Reservation lands.

Justice Felix Frankfurter: Did the engineers in their -- in their plan or programs go into the details of what reservoirs would be needed as the source of the land in which the reservoir is to be got?

Mr. J. Lee Rankin: Yes, Mr. Justice.

Justice Felix Frankfurter: But did they consult with the Tuscarora?

Mr. J. Lee Rankin: They did not.

They referred to --

Justice Felix Frankfurter: And what provision did they make for the reservoir?

Mr. J. Lee Rankin: They made provision for reservoirs in this area because it was smaller at that point.

Justice Felix Frankfurter: Do you mean, they -- they made provision for a smaller reservoir?

Mr. J. Lee Rankin: Yes.

At first, they made provision for one -- the Bureau of Power made one for 20,000 acre-feet.

And then, the Corps of Engineers recommended one for 32,000.

That's before Schoellkopf and before they would get all the water.

And then when the New York Power Authority made recommendation for 41,000.

And that was before Schoellkopf.

But, at the time of the New York Power Authority, they did describe it with particularity in this regard.

They didn't say Tuscarora.

Justice Felix Frankfurter: They be who, The New York --

Mr. J. Lee Rankin: The New York Power Authority in they're showing and their engineers.

They didn't say that it would be bounded by the Witmer Road here, that this road out here to the south.

So you won't be confused, in this mop -- map, north was over here.

It's an unusual map in that way, but that's where the north was under this map according to engineers.

And, so this was in the south border, which is described, which is also described that it would be bordered by Military Road on this side and that it would run to the Tuscarora Reservation.

That's for the 41,000 acre-feet.

Well, then, the Congress considered the fact that in -- after the Schoellkopf disaster, they would have to be -- the New York Power Authority would be given all the water then.

There would have to be a larger reservoir according to all of the showing by the engineers in order to take care of the full share of the United States.

And, the only implication would be that it would have to take some of the Tuscarora Reservation, because it was up to it at that time from the showing made.

Justice Felix Frankfurter: Would you mind explaining to me the -- what the bearing of the displacement or the rebuttal of the -- shows that the plant was the need of a larger reservoir.

Mr. J. Lee Rankin: Well, because it was contemplated that under the first -- under the law up to that time that Congress was considering that some 20,000 cubic-feet per second would be given to Schoellkopf Plant, because they had -- up to that time Niagara Mohawk could have that share.

And therefore, they would run it through this plant and the New York Power Authority just wouldn't have that much water to come down to this conduit and run through this so that you have much water to put in the reservoir and you have -- in order to make full usage of what Congress was going to allow.

Justice Felix Frankfurter: So, this release for water to be used by the -- by the by the New York project?

Mr. J. Lee Rankin: That's right.

And in order to be able to use it during the 17 hours that they figured for the dependable power when they have this load of use when people wanted the power, they had to have more space to hold this water back during the hours that they didn't -- people didn't want the power and because of this additional 20,000 cubic-feet.

And that meant, they had to have a larger reservoir and there is a detailed showing the engineers made of the peak hours and how you would -- during the seven hours of the day, you keep pumping it up into this reservoir and during the weekends, you pump it up and they showed just how it levels off so that you get the highest possible production which Congress described, there were 1,800,000 kilowatts during the 17 hours of dependable power.

That's how they described it as being done by the Committee.

And the Committee said that there would have to be a pump-generating plant and a pump-generating reservoir in precise words.

And that's all that was ever considered for seven years about this matter.

Now the difference that's involved is that at first, people were considering that the New York Power Authority couldn't have it all, because it would be unfair to take it away from Niagara Mohawk, but they'd have all the time and this was expensive plant therefore and not give them shares, so they would get their share of 20,000 and then the rest of it with New York Power Authority.

And then it didn't take as large.

And it's clear that up to that time, they were told that it would be this smaller reservoir, but the New York Power Authority even then told exactly what it was and that it is extended to the Tuscarora Reservoir.

And then, it's clear that the Congress increased the amount, said, they'd get all the water.

They would use every bit of it, and that they could only do it by the larger reservoir and Congress contemplated the larger reservoir under the Act that it could.

Justice Felix Frankfurter: But it's a matter of interest, am I right in inferring that when the Schoellkopf thing fell into the bottom of the river, Niagara Mohawk was out.

Not only physically out but (Inaudible).

Isn't that right?

Mr. J. Lee Rankin: Well, I think that's right from the history of it.

There was apparently the opposition in as to whether the private power or public power would do it and it went down in -- and they were to get their full share out of this without having to put the industrial units, so I don't see why they -- they weren't pretty well satisfied.

But that's my own conclusion from history.

Justice Felix Frankfurter: Yes.

Am I wrong in -- in leading of members that then uphold, the engineers, when they go into these details of such a project, they really go into these details with some particularity?

Mr. J. Lee Rankin: Oh, they're very elaborate --

Justice Felix Frankfurter: That's my -- and if that been so, how do you come to the fact that what the engineers -- or, is it the time that they didn't go into the -- into the requirements of Tuscarora lands?

Mr. J. Lee Rankin: Well, I --

Justice Felix Frankfurter: Because of the time element?

Mr. J. Lee Rankin: I think it came down sort of to the last, when everything -- all the contest was falling out of the way and everybody seemed to agree that this project would be entirely brought by the Power Authority and that it had to be used all the -- it was always contemplated that that they'd use all the water of the United States' share.

And that was the whole thing about the treaty that you try to get a better division of this water that -- when they got down to that point, they expressly said, they should have 1,800,000 dependable power in 17 hours.

And it was just assumed by everybody that it would -- the reservoir would just be extended and so, with all the detail, nobody went into the question of the Indians.

Now, there is --

Justice Felix Frankfurter: When did -- when did the requirement of taking Indian land explicitly first emerge?

Mr. J. Lee Rankin: Well, it came up first in regard to the Senators which is not this controversy.

And before one of the Committees of Congress, the Senators came in and said, this project would generally interfere with some of their rights.

And, one of the Congressmen said, “Well, this is the wrong form.

If you've got any claims, you should go to the courts because there'll be condemnation, you'll get paid whatever you're entitled to, and that's all there is to it.”

Now, the Tuscarora didn't bring that to the Congress at all and --

Justice Felix Frankfurter: They won't get -- you haven't yet mentioned when the Tuscarora by name emerged as --

Mr. J. Lee Rankin: In the Congress?

Justice Felix Frankfurter: As a potential -- potential taking, when did that first emerge?

Either in Congress or out of it?

Mr. J. Lee Rankin: Oh, outside -- it didn't emerge in Congress.

Justice Felix Frankfurter: First formed, no.

Mr. J. Lee Rankin: Outside of Congress, it came up in the early part of 1957.

This law was passed in August of 1957.

In 1956 they told me, it came up for the first time when -- and then it was brought explicitly to their attention by publication in the newspapers of the map and where it would go with --

Justice Felix Frankfurter: By the New York Authority?

Mr. J. Lee Rankin: Yes.

Justice Felix Frankfurter: By New York Authority?

Mr. J. Lee Rankin: Yes.

And also, they requested in the early part of 1957, the right to survey and so forth so that the -- and then the exhibit 191 in the New York Power Authority that was presented in 1957 was clearly indicated, although it didn't say Tuscarora on it, but it had to go by, if you look at the roads and other identification items on that presentation of the diagram, it clearly showed that it had to go into the Tuscarora lands in a substantial amount.

But --

Chief Justice Earl Warren: Why couldn't it go up to the right?

Mr. J. Lee Rankin: Well, that is the problem that the Power Commission examined in great deal are the remand and I want to try to show what's involved here.

There's 17,021 acres here and there are 439 homes.

In the Indian area, there are 37 homes and 1383 acres.

Now, the -- the number of homes involves a very great problem of trying to move those as they're recently built.

Justice Felix Frankfurter: Were these villages or --

Mr. J. Lee Rankin: It's an -- it's an addition to the Town of Lewiston as part of that general area.

And there are two cemeteries, here and here with 3,000 graves.

They figured it'd cost $400 a grave to move those cemeteries.

And this land all together in order to take them and bring this satisfactory even then, because you have to take a main road that goes up to this community here, I think it's Lockport and a bunch from here, and you have to move that entirely.

It would take around $27 million to try to take this area and use it for the reservoir in place of the others.

And you would have a less satisfactory engineering wise project by doing it.

Now, this land is, considerable of it is -- it hasn't -- wasn't farmed during 1958.

Some of it is -- was appeared -- appeared to be abandoned as far as the fields are concerned not actively farmed at all, and the housing developments there of the 37 homes that there are is -- is not very elaborate.

The total cost that the Power Authority offered to -- they offered $1,100 an acre for the land.

And they agreed to move the houses and give them very advantageous rate on power and employ them.

And the total value of all of that for the 13,083 acres was figured at $2,400,000.

Chief Justice Earl Warren: Well, didn't they all come before the Congress, didn't they -- didn't they balance off those things? It seems to me that the project of that kind -- any familiarity with the character of the lands to be submerged and -- and what they're to cost -- there's a great bearing on the feasibility of the -- of the project.

Mr. J. Lee Rankin: Well --

Chief Justice Earl Warren: I'm -- I'm just surprised that Congress never knew about -- about this Indian reservation land it was to -- it was to take that before it enacted the Public Law.

Mr. J. Lee Rankin: Well, Mr. Chief Justice, we think that the Congress must have known that it was involved generally, although this came up in 1957, and -- and after 1956 disaster of the Schoellkopf matter where they increased the size of it.

But every map of this area shows this Indian -- Indian reservation right here.

All the Government maps and the -- in fact the --

Justice Felix Frankfurter: Showed it as being contemplated to be --

Mr. J. Lee Rankin: No.

It shows it -- as Indian land right at this point in the Americana Encyclopedia and Rand McNally Maps.

So that anyone that was looking in this area at all would seem like they'd have to know.

Justice Felix Frankfurter: Now, if this -- if this merely square, that the Tuscarora square there.

Mr. J. Lee Rankin: Yes.

Justice Felix Frankfurter: But, in the same kind of ownership that the land to the right about, as Mr. Chief Justice is asking you.

But, we wouldn't be here in the question, would we?

Mr. J. Lee Rankin: No.

If that -- that was --

Justice Felix Frankfurter: Because then it would be a question of -- of judgment before the Commission as to which one it should be.

Mr. J. Lee Rankin: That's right.

Justice Felix Frankfurter: And we're here because this free land existed --

Mr. J. Lee Rankin: That's right.

Justice Felix Frankfurter: -- that has a -- has a quality namely it belongs to Indians.

Mr. J. Lee Rankin: Yes, sir.

Justice Felix Frankfurter: So, that's it.

That really raises the legal question, doesn't it?

Mr. J. Lee Rankin: That's right.

It gets down to the basic question of whether -- that it's contemplated to be a restraint on alienation that the United States cannot overcome unless they expressly name the Tuscarora as being the interested party.

And we would think that for several reasons that does not apply.

In the first place, we think Congress is the sovereign -- the United States as a sovereign has the power to take for a general public purpose.

Justice Felix Frankfurter: I don't fully contend that Congress, or is it, that Congress couldn't having to have drawn upon Indian lands as part of the lands to be condemned for the purpose of this project?

Mr. J. Lee Rankin: No, it's agreed by --

Justice Felix Frankfurter: It's also a question of statutory construction, is it?

Mr. J. Lee Rankin: That, it's whether it was intended by the Congress.

And as we read --

Justice Felix Frankfurter: And what was that thing?

Mr. J. Lee Rankin: As we read the decisions of whenever Congress is -- authorizes a project where the taking of Indian lands as necessary, and there is a specific authorization, that, in itself, is enough.

That is, if the Congress is deciding that there's a public use for which there must be a taking of Indian property and it authorized that public use and it just couldn't do it reasonably otherwise, then, that is enough.

Or, if the Congress had knowledge, noticed --

Justice Felix Frankfurter: Arguably, does that mean there's clearly no agreeable alternative?

Mr. J. Lee Rankin: No -- no feasible alternative.

I think in the TVA case you said, you don't have to waste public money in order to take one alternative against another, and improperly the way you want against the other.

And then decide what is feasible.

And then, in the other case, if the Congress knows that Indian lands are in the area that might be taken, that is enough under the whole.

Now, there are several cases that we referred to in which the Congress was not explicit in saying that certain Indian lands should be taken.

It said that lands along this line or such a line as we maybe redeveloped.

Justice Felix Frankfurter: Well, that's a kind of a geographic definition, isn't it?

Mr. J. Lee Rankin: Yes.

And none, however that a -- other lines might be established later in as -- in order to carry out this project and of course, this is an exercise by the New York Power Authority --

Justice Felix Frankfurter: I suppose that that's -- are you as close to that in this case namely the longest line -- it's the general kind of a geographic identification of these lands?

Mr. J. Lee Rankin: Well, yes.

Justice Felix Frankfurter: And rightly.

Mr. J. Lee Rankin: Well, I think it's very close because of this.

This is the line that they said was going to border, the Military Road and Witmer and extends to the Tuscarora.

Now, if you assume that this is infeasible and this is not because of a community disruption on the --and a very great compared to the cost.

Then, the only way that anybody could reasonably assume you were going, would be to take some of the Tuscarora lands.

That had to follow.

If you are going to enlarge the reservoir and if you're going to hope, use the whole share.

Nobody ever at any time contemplated not using the whole share of the United States water.

Part of it was to go to Niagara Mohawk, part of it to Power Authority but they're going to use it at all.

Now that they're going to put it all on the Power Authority, you'd got to go with some place with the reservoir under what they've been talking all this time about with the pump-generating program and trying to make as much power than we already -- and people could use it.

Justice Felix Frankfurter: You said that earlier that the -- the land the right.

You said that take that that involved a disruption on the City of Lewiston, is that right?

Mr. J. Lee Rankin: Yes.

Justice Felix Frankfurter: And later on you said that it would mean -- mean the displacement of 327 homes or others.

Is that what you mean by that?

Mr. J. Lee Rankin: No, 439.

But --

Justice Felix Frankfurter: How many?

Mr. J. Lee Rankin: 439.

Justice Felix Frankfurter: 439?

Does that mean that I should -- are those two identical statements in the instruction of its immunity?

Mr. J. Lee Rankin: No.

No.

There -- the 439 homes involves cost.

And it would involve the -- the removal of those or replacement in value.

Justice Felix Frankfurter: It would not involve splitting the city into two, would it?

Mr. J. Lee Rankin: That the putting of a reservoir would, because when you put the reservoir over in there, then, you get into all of their sewer, water, fire and everything else.

Now, that's comparable to what came up about the Congress.

The Power Authority wanted to have open conduits run down here through the city.

And the Federal Power Commission decided that they're -- they have to be cut and covered as they cut the conduit and then they covered over it so that they -- people could pass back and forth and even with the conduit at least, they offered to put bridges and other approaches to get back and forth, but the Power Commission said, well, that would just tear the community up and there would only be a few areas, and the community objected very violently to it.

So they insisted that they could cut the community up that way.

Now, if you have a big reservoir like this, it would be quite impossible to try to bridge it and it just couldn't be done.

So, everybody -- everything would have to go around.

And that's what I mean by community disruption.

Justice Felix Frankfurter: Would you be (Inaudible) what taking these Tuscarora lands means to the Tuscarora tribe?

Mr. J. Lee Rankin: Well --

Justice Felix Frankfurter: And any physical in --

Mr. J. Lee Rankin: There is one plan that you could see from this town operates for about sections, 640 acres.

The properties as far as the buildings and homes that are involved and the barns are concerned, there are only I think one substantial barn and four or five others are not elaborate at all.

And they could be replaced to consider -- some of them -- many of them wouldn't -- you wouldn't even rebuild.

You'd build the new homes in this offer in order to have them -- have better homes than they have.

Justice John M. Harlan: Where does the Government see?

Mr. J. Lee Rankin: Well, wherever land could be obtained in that general area and there is ample in the area that could be obtained for the reservation.

Justice Felix Frankfurter: What's the total population of the Tuscarora?

Mr. J. Lee Rankin: There are around 600 and then there are others living with them I think that rounds it up to around 1000 in the area.

Justice Felix Frankfurter: Now are there any -- is there any bearing in taking these lands under feelings of what their reservation is, what they've got?

Mr. J. Lee Rankin: Well --

Justice Felix Frankfurter: That can enjoy the kind of impossible way when people enjoy in the State?

Mr. J. Lee Rankin: I think there is -- they make that claim and I think there might be something to that.

But I think that it doesn't have the legal merit as to -- when the United States tries to do something in behalf of all the people.

Justice Felix Frankfurter: I'm not --

Mr. J. Lee Rankin: And that's the difference.

But I think --

Justice Felix Frankfurter: And that's a logical question.

It's very important particularly in the life Indian tribes.

Mr. J. Lee Rankin: Yes.

Justice Felix Frankfurter: To the contrary.

Mr. J. Lee Rankin: Yes.

And that is a factor that they --

Justice Felix Frankfurter: And when you say, they have no legal merits, the question is whether those factors have a legal relevance in the -- in the (Inaudible)

Mr. J. Lee Rankin: Well, I think that that is involved in the Congress' action in deciding on a public use.

Justice Felix Frankfurter: (Inaudible) contemplate -- contemplate in this Court and yet there's no problem there.

Mr. J. Lee Rankin: Yes.

Justice Felix Frankfurter: There's no constitutional power problem on it.

Justice John M. Harlan: Was there any effort in the last Congress after this dispute arose that's been going on since the day that I was connected with it, with the stay, are you active at that time?

Is there any effort made to get this ambiguity cleared up?

Mr. J. Lee Rankin: I don't known of any Mr. Justice.

Justice John M. Harlan: The Congress claimed that we know there's no dispute about that.

They get right at a task and show its statute and so the litigation disappear wouldn't it if they chose to do this?

Mr. J. Lee Rankin: Well, there is no question about that.

Justice John M. Harlan: No -- no there's no doubt about that.

Mr. J. Lee Rankin: It's just a belief of everybody on Power Authority on the Commission's side that it was already part of their contemplation when they decided on giving this amount of water to the Power Authority and that it had to be done this way.

Justice John M. Harlan: Their argument is really an argument from necessity, clearly in this branch of the argument.

Mr. J. Lee Rankin: Of power I guess.

Justice John M. Harlan: Argument from necessity.

Mr. J. Lee Rankin: Furthermore, I'd like to briefly touch on that.

Chief Justice Earl Warren: But, before you get to the -- that you get off of this subject, would you compare that topography as the portion of the Tuscarora Reservation that they take for the reservoir with that which remains?

This -- that is the reservation which we (Inaudible).

In other words we want it with tillable soil or one part of the tillable soil, and the other mountain -- mountainous or what is -- is it all the same?

Or -- or what is the relationship?

Mr. J. Lee Rankin: If -- Mr. Chief Justice if you'll permit me, I'd like to try to answer that on rebuttal because I want to be more accurate and I didn't examine it --

Chief Justice Earl Warren: All right.

Mr. J. Lee Rankin: -- so that I can be careful, and I think I can answer that until rebuttal.

Chief Justice Earl Warren: Yes, it's all right.

Justice Felix Frankfurter: May I add as a Footnote to Justice Harlan's question, namely, your argument is one of the necessity.

If Congress had spoken clearly, it would be no problem.

Mr. J. Lee Rankin: No.

Justice Felix Frankfurter: None at all.

Therefore, the question is construction of the statute to allow the exercise of discretion which if the Power Commission had it, it isn't for us to revise.

Mr. J. Lee Rankin: Yes, Mr. Justice.

Justice Felix Frankfurter: That's what necessity means in this connection.

Mr. J. Lee Rankin: That's right.

Justice Felix Frankfurter: Namely, the necessity for the -- for carrying out the project, and when Congress authorized the carrying out of the project presumably, it carried with it all appropriate means for making the project possible.

Mr. J. Lee Rankin: That's what this --

Justice Felix Frankfurter: If that's --

Mr. J. Lee Rankin: -- the Court said before in regard to the legal --

Justice Felix Frankfurter: is this -- so we get back to the statute really whether there's anything -- any limitation within the statute which excluded that.

It's -- isn't that the ultimate question?

Mr. J. Lee Rankin: Now, if we turn to the Federal Power Act in which the Court of Appeals relied on --

Chief Justice Earl Warren: May I give you just one more question please that you might answer with the other.

In the land off to the left and below the proposed reservoir site you said was infeasible.

Mr. J. Lee Rankin: Yes, here.

Chief Justice Earl Warren: And as so far as you're concerned, so why is that infeasible?

Mr. J. Lee Rankin: That's because it slopes down for the escarpment here and it gives dead storage rather a fall of gravity that will help produce power.

Chief Justice Earl Warren: Yes.

Mr. J. Lee Rankin: So, the engineers said it was infeasible and that's all I know, I'm not an expert in that.

Now, with regard to the Federal Power Act, it said the problem is Section 3 and 4, 4 (e) and that's on page -- pages 80 and 81 of the Government's brief.

And it's the position of the Government that the Section 4 (e) that required a finding by the Federal Power Commission that the reservation -- taking this portion of the reservation would not interfere or be inconsistent with the purpose for which the reservation was established.

It does not apply to these lands, because these are not lands of the United States.

These lands are held in fee simple by the tribe.

They were purchased by the tribe and they were not created by treaty, by congressional act, or by executive order.

So, they are not reservations in any of those senses.

Now the position of the Federal Power Commission that Section 3 in referring to reservations necessarily refers that in 3 (2) where it eliminates reservations as being part of public lands in the definition, referred back to the lands owned by the United States, in the second line of 3 (1) -- second line of 3 (1).

And then when it goes down, reservation means national forest, of course those who owned by the United States, tribal lands embraced within Indian reservations, and many times they're owned by the United States so far as public domain.

Military reservations, and then it goes on, and other lands and interest of lands owned by the United States.

So, it's our position that this definition meant only lands in which the United States had a property interest.

And --

Justice Felix Frankfurter: I -- I'm sorry, I didn't quite take in what you -- how did we dispose off tribal lands embraced within Indian reservations, you say that to be a tribal land owned by the United States and set aside as an Indian reservation, is that the way you read that?

Mr. J. Lee Rankin: We read that that and -- in the first place in (1), it says land owned by the United States.

Then, it goes on in (2) and says, these various lands that are owned by the United States, and then it says, and other lands and interest in lands owned by United States.

So, we say that all these others --

Justice Felix Frankfurter: You've lost me, I'm sorry.

Mr. J. Lee Rankin: In (2) --

Justice Felix Frankfurter: Into (1), it says, “Public lands means such and interest so and so, it shall not include “reservation”, as hereinafter defined.”

You -- you read that to mean include reservations that are public land of the United States in (1)?

Is that right?

Mr. J. Lee Rankin: No.

No, because reservations are expressly excluded.

Justice Felix Frankfurter: That's what I know.

Mr. J. Lee Rankin: But it's talking about lands that are owned by the United States, then, it goes on --

Justice Felix Frankfurter: Does that include reservation? Now is that a -- and then if you find the reservation in (2).

Mr. J. Lee Rankin: Yes.

And it --

Justice Felix Frankfurter: And that is a self contained definition is it not?

Mr. J. Lee Rankin: That's -- that's right.

Justice Felix Frankfurter: That reservation means national forest, I understand that.

What I like your comment on is -- is tribal lands embraced within Indian reservations.

You exclude the Tuscarora.

Mr. J. Lee Rankin: Because we say that -- and other lands and interest in lands owned by the United States modifies that and the other reservations that are described.

Justice Felix Frankfurter: I mean tribal lands, quote from that, tribal lands that are owned by the United States but are set aside as Indian reservation.

Mr. J. Lee Rankin: Yes.

Justice Felix Frankfurter: That's the way you read that?

Mr. J. Lee Rankin: That's right.

Justice William O. Douglas: Some tribal lands not owned by the United States?

Mr. J. Lee Rankin: That's right.

Justice William O. Douglas: And there are.

Mr. J. Lee Rankin: Yes.

Justice William O. Douglas: So you argue.

Mr. J. Lee Rankin: It's our position that there are.

Justice William O. Douglas: But, the United States, as I gathered, would have some guardianship interest as respects those tribal lands that are not owned by it.

Mr. J. Lee Rankin: That the Power --

Justice William O. Douglas: Is that right?

Mr. J. Lee Rankin: -- Commission concedes that, Mr. Justice.

Justice William O. Douglas: You mean that the Government will concede it too?

Mr. J. Lee Rankin: Yes, yes.

Now, the difference is this --

Justice William O. Douglas: So, the problem is whether the guardianship interest in tribal lands not owned by the United States is an interest in Section 3 (2).

Mr. J. Lee Rankin: That's correct.

Justice William O. Douglas: Now, you say, no because you make the word other, there's a burden of saying they must be owned.

Mr. J. Lee Rankin: Yes.

Now, the --

Justice William O. Douglas: I think -- I think if you say that interest means property interest.

Mr. J. Lee Rankin: That's right.

Now, the Court of Appeals --

Justice Felix Frankfurter: That's what the phrase says.

It says, “tribal lands embraced within Indian reservations”, “and other lands and interest in lands owned by the United States.”

Now, your argument must be that tribal lands not owned by the United States are not other land owned by the United States.

Mr. J. Lee Rankin: Yes.

Justice Felix Frankfurter: And I say that makes other to have whole burden of your construction.

Mr. J. Lee Rankin: Well, the Court of Appeals accepted our construction of what the statute meant.

But it went on to say that the interest that Mr. Justice Douglas referred to of guardianship was a sufficient interest under Section 4 (e).

Justice William O. Douglas: Interest in land.

Mr. J. Lee Rankin: Yes and the position of the Government that this statute never contemplated anything like that.

Justice Felix Frankfurter: That is my view.

My view is that tribal lands -- not my view but my trouble is.

Mr. J. Lee Rankin: Yes.

Justice Felix Frankfurter: That reservation means natural forest, 1- national forest.

2- tribal lands embraced within Indian reservations.

That's with the law, that would characterize it as the law, wouldn't it?

Mr. J. Lee Rankin: Yes, Mr. Justice.

Justice Felix Frankfurter: 3- military reservations, 4- and other lands and interest in lands.

Now -- what you view is to characterized -- is to qualify proof by what I call four, and other lands, don't you?

Mr. J. Lee Rankin: We do it by that and also by the -- owned by the United States above.

Justice Felix Frankfurter: Yes.

But, that's how that --

Mr. J. Lee Rankin: We say that's --

Justice Felix Frankfurter: I do not say that those aren't four subject categories all of which would fall under reservation.

Mr. J. Lee Rankin: Well --

Justice Felix Frankfurter: And this reservation in the -- in Indian -- as to Indian rather, is a very defined characteristic to make sure of a holding or an interest, I think the burden is heavily on the Government that and other lands means tribal lands that are other lands owned by United States.

Mr. J. Lee Rankin: Well, I -- we accept that burden and point out that in the history, the whole concept of this Act if you'll notice, this is the authority to license.

It is not merely the authority to take lands, but it's an authority to license.

And that's based upon parts of the Constitution.

The one is the commerce power and the other is the property power.

And nothing in the whole history said anything about Indian commerce as being any basis for this Federal Power Act.

It was never contemplated.

Now, there are two committees worked on, one of them was in regard to the public lands of the United States and properties and the other was in regard to interstate -- and foreign commerce.

And nothing was brought up at anytime about the question of the Indian.

So, I say that the Power Act was directed to the proposition of the basis for constitutional authority to -- and looking back to 1920, you know that was a very real question at that time, the authority of the United States to authorize this type of license.

And one basis was the -- the general commerce power and that was -- what was considered by the committees and all, and the other was the General Property Clause and nothing about this.

And then, if you'd -- you see in Section 21, there is a general condemnation power and unless there was some special reason for not including Indian that had tribal in the fee, that could be reached there without any question.

But, if you have these -- this type of property whether the United States had a property interest, there is no provision either in Section 21 or other statutes to reach that land and permit the use of it.

On the other hand, almost -- or a great proportion of the projects that were authorized by the Federal Power Commission were contemplated as being authorized will, had to have some lands that the Federal Government had a property interest in -- in order to be able to be feasible at all.

Justice Felix Frankfurter: Do you think that in the 1920, and I have had provisions to remember that there is or earliest with the power development, do you think that there was the question whether the Government would grant licenses on Indian -- of regarding land that there were then Indian reservation for the use of Government, did not have ownership?

Mr. J. Lee Rankin: No.

There was no question about that.

Justice Felix Frankfurter: Wouldn't they have -- wouldn't they have the general relations to Indians the power, if you can -- the power to condemn, the power to make the subordinates (Inaudible)?

Mr. J. Lee Rankin: Mr. Justice, I agree completely with that but, the Congress didn't consider it.

There isn't a -- a syllable of history that they examined anything but this property power and then the commerce power generally.

Now, the Court of Appeals had to read in the idea that they also have power to license under this clause of the Constitution that follows up in regard to commerce with Indian tribes.

But there is nothing like that in the history at all and when they asked the Subcommittee of the judicial committee whether they had such power, they have to do -- we have the power under the Commerce Clause and under the Property Clause power.

So, that they -- that was what they were considering and when you take the further addition that they provide for an annual charge to take care of this land that's involved here to be paid to the United States, it seems like it's clear that they had no contemplation of anything like this type of land.

Justice John M. Harlan: Can I ask you a question, assuming you would prevail on this suit here, in this case that we're hearing and arguing, that validates the license, then, your -- there is still another question there, as to whether even though the license is valid as a power to condemn the being -- at least being Indian lands, do we reach that question in this lawsuit?

Mr. J. Lee Rankin: Well, if the license is -- is validated, then, it seems to me you have to go as the Court of Appeals did to the question of whether or not there has to be a finding under 4 (e) or not.

If you find these lands are not under 4 (e), then, there is a power to condemn under Section 21.

Justice John M. Harlan: Now, I'm assuming that you -- you are prevailed for the moment on saying that this is not a reservation so incidentally, you don't have to have the finding so that you've got a valid license or now you've got a valid license.

Then, it has to resort to Section 21, hasn't it, to condemn, to get the land?

Mr. J. Lee Rankin: That's right.

Justice John M. Harlan: The license itself does not give any power to condemn.

Mr. J. Lee Rankin: Well, the -- the Section 21 says the licensee can condemn and so forth.

So that it follows that if you were a licensed -- a licensee that doesn't have any problem about 4 (e), that you could condemn under Section 21, that would be --

Justice John M. Harlan: But you've got the same question under Section 21, haven't you, as to whether or not Section 21 in broad terms say nothing about Indian reservations, Indian lands and is sufficient to give that authority.

Mr. J. Lee Rankin: Well, we don't think so because we think that the reference in particular to Section 4 (e) where they do deal with tribal lands, especially would leave everything else like all the other kinds of properties that are committed to be condemned that are held in by other people of all kinds to be condemned under Section 21, because there's a deal -- that they do deal especially or particularly in Section 4 (e) with a certain type of land.

And there isn't any question about the Congress power to reach Indian lands generally anytime it wants to under any general statute.

And that every time it's dealt with them in general statutes.

Justice Felix Frankfurter: Mr. Solicitor, may I ask you a further question about this reservation?

The proviso requires the Secretary of the Interior, or is it the Secretary of the Department who use the provisions, et cetera.

Of course, it might be (Inaudible).

But dealing with Indians and dealing with the Secretary of the Interior, it provides that he must have -- he may lay down the condition for the purpose of protection of such reservation.

So that they shouldn't have to be consistent with the purpose of which such reservation was created or acquired.

Now, isn't that a fact that the interest of Indians as a -- as a tribe, as a community, the interest of the Indians are the same whether they own the land outside in fee or whether they enjoy the land owned by the United States so far as Indian interest are concerned.

The interest is substantially the same except they owe the man in one case and enjoy the other, is that right?

Mr. J. Lee Rankin: Yes, Mr. Justice.

Justice Felix Frankfurter: In that course, I'd like to know that therefore your -- your argument makes the difference turned on, on the fact of ownership, is that right?

Mr. J. Lee Rankin: Yes, because --

Justice Felix Frankfurter: So, if there's --

Mr. J. Lee Rankin: -- you can't reach --

Justice Felix Frankfurter: -- ownership for law that is irrelevant to the interest to be -- to be protected.

And you say that because there's no reference that the power exhibit -- was to exhibit otherwise then ownership by the United States for the Commerce Clause, is that right?

Mr. J. Lee Rankin: Well, that's part of it.

And also because, that's going to need protection, because that isn't entitle to the United States, it can be reached otherwise by Section 21, because there is a general power to condemn in Section 21.

But here, there is no power to condemn with --

Justice Felix Frankfurter: Section 21 of the General Power Act?

Mr. J. Lee Rankin: Yes.

Justice Felix Frankfurter: But -- but we are told -- but this is an independent section.

Mr. J. Lee Rankin: Yes.

But I'm trying to point out that there is no power to condemn lands of the United States by anybody.

Justice Felix Frankfurter: That's right.

Mr. J. Lee Rankin: Unless someone says you can.

And generally, the Congress doesn't say, if you've got a reservation for one purpose of public use that they've already decided is important to the public that you can go and take that for another public use.

But they tried to reserve both of them.

That's why they stay inconsistent not only as to these lands but also as to military reservations and other -- or the other categories in Section 4.

That's not limited just to Indians.

Justice Felix Frankfurter: No.

Mr. J. Lee Rankin: That's limited through reservations that Congress has created and others.

Now, they say, if it's inconsistent though or interfere with, that's the condition they set down.

But, that, they don't -- you don't need that provision at all if the lands don't belong to the United States, because they could be condemned and then you don't have the provision of an annual charge to compensate.

As to those others you've got to pay just compensation which will fully take care of the opportunity to replace.

Justice Felix Frankfurter: So that this particularization was really needless if they just said all lands owned by the United States.

That would cover everything, you must get permission by the appropriate cabinet member who has control of it in giving reasons or rather laying down conditions of protecting the interest that is there.

That's right, isn't it?

Mr. J. Lee Rankin: Yes, Mr. Justice.

Justice Felix Frankfurter: And that's the way you read it.

You say that this is just a needless enumeration of lands owned by the United States?

Mr. J. Lee Rankin: No.

No, Mr. Justice, I mean, that --

Justice Felix Frankfurter: Well, isn't that true?

Suppose it was just all lands owned by the United States that was covered in (Voice overlap) to include these and all lands, is that right?

Mr. J. Lee Rankin: That's right.

It -- it's dealing especially with reserved lands in this area.

And it says, we have already dedicated to a public use reserved lands in every case.

Congress or the executive has said, this shall be a military reservation.

This shall be another public reservation.

Justice Felix Frankfurter: All right, then I change my mind.

They say, all reservations owned by the Government which carry everyone -- to carry all the enumeration of (2), is that right?

That's all even a post office, if there is a reservation for the use of the post office.

Mr. J. Lee Rankin: Yes.

I -- I have difficulties just saying yes without more knowledge as to what might be in that, but I think that with this group that are involved here, it would -- but I was trying to show that you have to have this kind of a provision to make these projects possible or you couldn't even use those lands at all because nobody would have the right to condemn it.

Chief Justice Earl Warren: Mr. General, I -- I think you have one or two minutes for rebuttal.

You may have 10 minutes for rebuttal and the counsel if you made it, you may have 10 minutes at your time also.

Mr. J. Lee Rankin: Mr. Chief Justice, I have two minutes, I suppose you said five.

Chief Justice Earl Warren: Oh, oh yes you -- you may.

I -- well, yes.

Come on in.

Mr. J. Lee Rankin: Mr. Chief Justice, I've tried to keep --

Chief Justice Earl Warren: Yes, you did.

You -- it wasn't your fault I'm sure.

Yes, indeed.

You may take -- you may take your five.

I don't rather -- you can.

Argument of Thomas F. Moore

Mr. Thomas F. Moore: Well, Mr. Chief Justice, and I pray if it please the Court, I don't want to -- I don't want impinge upon the Solicitor General's rebuttal time, but there a few items to which I respectively invite your attention.

First, I would like to ask you two or three questions.

Mr. Justice Harlan's first question, I answer equivocally -- unequivocally about it, no, the need for this land does not come about since the license is valid.

The need for this land does not come about as a result of anything that's occurring through the Congress' action.

That's number one.

Number two, Mr. Justice Frankfurter asked when the need for the land was ascertained and publicized really.

The need for the land came about as follows.

The Schoellkpf Plant fell in the river in -- on June 8 I think it was 1956.

There were Congress -- hearing from the House shortly thereafter but -- but pretty much beside the point except that it was testimony there.

Now, where it was pointed out at those hearings, in the summer in 1946, the prior plan for the whole project had to be scrapped and increased in size.

And then, the record shows that in the fall of 1956, the Power Authority made a brand new study and as the result of the brand new study ascertained that in order to use all the waters of the river available to the United States a 60,000 acre-foot reservoir was needed and that Indian land was needed.

As a result of that study in 1956, a -- a report including a map was brought out and that's the exhibit 191 of the -- which the Solicitor General has been talking about.

But what I want to make clear is that that map, that exhibit was before Congress.

The exhibit 191 which was a map of the new project, was planned by the Power Authority did include Tuscarora land.

No question about that.

It was not to label Tuscarora land as the Solicitor General said.

The roads were shown and definitely included in the border of the reservoir was Tuscarora land.

Justice Felix Frankfurter: Why wouldn't it be shown on the --

Mr. Thomas F. Moore: They didn't show it properly.

Justice Felix Frankfurter: But why?

Mr. Thomas F. Moore: Well, it is in the -- it wasn't that kind of map.

But they didn't -- and besides that, while it shows Military Road (Inaudible), I think it may -- this is the City of Niagara Falls and the Niagara University is here.

And it showed north has been labelled Military Road and the label we could show to this other road and shows that the reservoir is between the other road.

And that's -- that was the kind of map it was, it was a general map.

Chief Justice Earl Warren: Did it show -- did show those 400 and --

Mr. Thomas F. Moore: No.

It didn't show how in this map.

It did not.

It did not.

Chief Justice Earl Warren: It didn't show anything as to the character of the land to be taken?

Mr. Thomas F. Moore: Essentially not.

Well, there's an exhibit here.

You can see it right -- in -- it's in the record is what -- it's exhibit 191 in the record, here is a picture.

But, now, the House that -- that report, now the Senate report that board report, the -- the Senate didn't hold any hearings in 1957, but it was after it that the Senate held hearing.

And the Senate referred -- incidentally, this was before the Senate, that's in the record, they looked at it, the members of the committee.

But then, the Senate report, in talking about this project, said that the latest, Mr. Justice Frankfurter, the latest plan was the plan developed by the Power Authority, it was developed in that exhibit.

And -- that's in the report and now -- now the answer to Your Honor's question is --

Justice Felix Frankfurter: Did you say 191?

Mr. Thomas F. Moore: 191.

Justice Felix Frankfurter: Well it tends (Inaudible) that my stupid eye just doesn't indicate you guessed that, isn't it?

Mr. Thomas F. Moore: Well, I just -- page 23 of the record of the -- of the exhibit -- of the -- of the two pictures of this one.

Justice Felix Frankfurter: But if that's not exhibit 191, is it? That's not 191.

Mr. Thomas F. Moore: There's -- there's two volumes.

There's a volume of exhibits.

Justice Felix Frankfurter: Page 6.(Inaudible)

Mr. Thomas F. Moore: (Inaudible) 42 again -- it's 42.

Justice Felix Frankfurter: There are two exhibits I see.

That's a whole series of things.

Page 42, it's right.

All right.

Mr. Thomas F. Moore: Now, they are -- one of the things I want to point out to you that this -- this plan, this map that was in the Niagara Falls newspaper.

It was given to the Tuscarora.

It was discussed with the Tuscarora all before the Senate hearings in 1957.

In other words, this plan of the Power Authority was an open and notorious during the time.

No question about that at all.

But it was not like (Inaudible).

Now, I want to point out two other things too.

That is that Congress, now when it set this law on 1957, I think you could assume -- I think you've got a right to assume, it knew that New York State throughout its history, now, this is no State right to arguing at all.

But the New York State throughout its history had been condemning Indian lands and its waters for public purposes.

It has done that since the beginning.

And, as a matter of fact, there's testimony in the record that New York claimed to have the right to condemn all the lands in the forest, and I am talking about Indians not necessary for the power, private.

I think you have to consider that, and that there's a cabinet consent by Congress throughout the years to New York exercising the power in its domain over Indian lands, and it's done it all through the years.

Now I think that you have to consider that.

Now, two more things, and I'll set down.

One is there's no question of fairness in this case.

No question at all.

The Solicitor General said, the offer was $2,400,000 actually it got up to $3,000,000.

And the new houses, everything is better, adjoining land on the other end, that isn't an element in this case at all.

I mean, all the kinds of -- there is no problem about the fairness to the Indians as involved here in any way shape or manner.

Justice Felix Frankfurter: If money is the only test of fairness, if money is the only --

Mr. Thomas F. Moore: It's more than that, sir.

This reservation, the record shows is not used.

It was used very little.

There is only one real farm on the whole reservation.

Any standard of fairness at all, except perhaps to the one that you're talking about that an Indian would say, “Well if they take this from me now, maybe -- maybe they'll take some more later”, I mean, not in exception.

But -- but they could get more land on the other side, much better if they wanted it, no -- no problem about that.

And incidently sir, this is not only purchased land, but this land has enjoyed a tax abatement as a result of a statute passed on New York State, not by Congress, in 1821 and regarding to this -- and this has always been, and I'm not arguing State rights again now either.

But regarding to these Indians, it's always been in the State of New York and it has never been in the Government of the United States.

The Government nearly hasn't done anything from this people.

They give two and a half yards (Inaudible) a year to these Indians and that's all.

New York educates them.

New York provides doctors and nurses for them, schools on their reservation, everything that's done all through the years by New York State.

And even back in Worcester against Georgia, the Court was probably said Georgia had no rights over Indians at all, it did indicate that there was a difference in the -- of the United States from what the situation was in Georgia because of them.

But I -- I do think you have to keep that in mind.

And one other thing sure is this, and that is the Power Authority presents very strong in the argument that the litigation in the Second Circuit as defined on this Court of Appeals below, it should have been honored.

Now, in this case, we -- the -- the first part was pointed out by Solicitor General, the order which is under review here did not include Indian land in the project.

The Court -- the Commission refused to pass on it.

The Commission -- and so that -- so we maintain that the -- that the respondent was not agreed as a result of that order.

But in any event, right after rehearing was denied on that order, the respondents started a declaratory judgment and the injunction action in New York State before the Court below got jurisdiction by the filing with it of the Commission's transcript of judgment -- transcript to the record, there was actually a judgment in the -- declaratory judgment injunction action affirmed as modified by the Court of Appeals for the Second Circuit.

Now, I do point out to you sirs that in this -- in respondent's brief, respondent says, it concedes in fact, that if the 4 (e) finding is not necessary, the 4 (e) did not apply, then, the Court of Appeals' judgment is binding.

You'll find that I think on page 84.

Court of Appeals -- there's a judgment of the Second Circuit Court that is binding.

You'll also find on any one of these briefs that he said he didn't have any other remedy, when he's brought the declaratory judgment action.

Now, we agree with them that -- that he was -- that -- we agree with him on that but for different reasons.

Now, they didn't have any other remedy.

Certainly, the Court in the declaratory judgment action had jurisdiction had jurisdiction or they had jurisdiction certainly if the judgment should be honored by a sister court.

It should be binding on the sister court in another type of procedure.

Thank you very much.

Justice John M. Harlan: Mr. Moore, your time is up.

But I -- I want to ask you a question which I think you can answer (Inaudible).

I suppose this record clearly indicates that there's at least a very grave doubt about whether the statute justifies what has been done.

You would agree with that, wouldn't you?

In view of the fact that the court below has decided against you.

I would suppose you would say that it's at least not wholly and completely and unequivocally clear.

Mr. Thomas F. Moore: Yes, sir.

Justice John M. Harlan: May I ask you -- I'm just curious to know why under these circumstances, if it's -- if the Congress did intend to do this, I don't know what or where I stand on this.

But if the Congress did intend to do that, why -- if this is an urgent matter, why there has not been some effort made on the part of New York or the Department of Justice to have a Congress action?

Mr. Thomas F. Moore: MYes but that -- that goes into the following different -- efforts to be made, sir.

Justice John M. Harlan: I know.

I was getting back to --

Mr. Thomas F. Moore: Now, that's what -- what we did that ties him with that.

And in the Court --

Justice John M. Harlan: But all I'm -- all I'm interested in as it seems to me that frequently, we are here to -- to construe a statute one way or the other for the Government and/or against the Government where the statement is made and it's pretty clear that Congress intended to do that.

We've got to decide where they didn't.

And nobody makes any effort to get Congress to decide it for us, because it's Congress' power after all, isn't it?

Mr. Thomas F. Moore: The answer sir, and remember, the Power Authority is a very small organization we're -- we're really on their own.

We're not the State although we're identified very much with the State and are a creature of the State.

But --

Justice John M. Harlan: Do you not think of what is advisable?

Mr. Thomas F. Moore: Yes, the answer sir is that we couldn't agree.

We'd respond to counsel on the type of legislation.

Justice John M. Harlan: Well, but, I'm not talking about counsel passed to the legislation.

I'm talking about the counselor --

Mr. Thomas F. Moore: Well, in the first place, the time element for building the project was cut, that a licensee could get a uncontroversial -- a non-controversial (Inaudible), it wouldn't do any good.

Justice John M. Harlan: Do you think -- do you think it'd take you longer to get Congress to say that --

Mr. Thomas F. Moore: That's right.

I spent three years of my life --

Justice John M. Harlan: Do you think -- do you think it'd take longer if you -- for you -- for you to get Congress to say that it meant what you say -- that it undoubtedly meant that what you go and run to Court?

Mr. Thomas F. Moore: That's right, sir.

I spent three and a half years of my life getting this bill through.

Justice John M. Harlan: All right.

Mr. Thomas F. Moore: And, but anyway, we couldn't agree on the bill and New York State had a great, great interest in it because of a --

Justice John M. Harlan: I -- I mean to --

Mr. Thomas F. Moore: There's a difference from ours but we -- which we'd oppose.

Chief Justice Earl Warren: Mr. Lazarus, you may proceed.

Argument of Arthur Lazarus, Jr.

Mr. Arthur Lazarus, Jr.: Mr Chief Justice and may it please the Court.

The crucial issue in this case as has been recognized by the Court is whether Congress in some way has authorized or otherwise consented that for taking of a portion of the Tuscarora Reservation for use in the Niagara Project.

Respondent's position in essence is that there is no such consent stating of Indian tribal lands either in the 1957 statute authorizing the project or in the Federal Power Act or in any combination of these two laws.

Justice Felix Frankfurter: You don't really mean that the question is whether Congress either explicitly or by implication specifically authorized the taking of the Tuscarora land.

You don't mean that, do you?

Mr. Arthur Lazarus, Jr.: What I -- what I mean Your Honor is that, in view of the special protections over Indian lands and the guardianship relationship of the United States to Indian tribes including the Tuscarora Nation, that if the power of eminent domain is to be exercised on tribal lands, we must have some expressed authority from Congress to do it.

Now, it must be either expressly in that statute to conform with the rule of Elk against Wilkins, the general acts don't apply to Indians unless clearly manifested by Congress or we must find, as the Court of Appeals in this District of Columbia Circuit found in Seneca Nation against Brucker that the legislative history of the Act is so clear that Congress intended to take Indian lands that we can find a congressional consent.

That is, again, to restate it that the interest of the United States in Indian lands combined with the guardianship interest of the United States, is of such a nature that we must spell out a repeal at the protection.

We can't find it, I might add, by implication and I will get to it a little later into my -- in my argument and to just why the authority cited by the Government in this case in making its argument on consent by implication just don't stand up on this group.

But, there has to be something affirmative by Congress before the -- we can find the authority for the taking of Indian lands.

Now, before getting into the main point of my argument, I would like to take up two matters where I feel that the argument by petitioners has been misleading.

Now, the first is the opening remarks of the Solicitor General with reference to the language of the 1957 Act.

The Solicitor General said that the Act specifically recited that it was the Act under which the project was to be licensed and that inconsistent rules and regulations of the Federal Power Commission must give way.

Now, what the Solicitor General forgot to point to is Section 1(b) of the Act in which it is specifically recited --

Chief Justice Earl Warren: Where -- where do we find that Mr. --

Mr. Arthur Lazarus, Jr.: Well actually it's in the --

Unknown Speaker: Page 76 of the Government's brief.

Mr. Arthur Lazarus, Jr.: Page 76 of the Government's brief.

If we look at Section 1 (b) of the Act, it says, “The Federal Power Commission shall include among the licensing condition in addition to those deemed necessary and required under the terms of the Federal Power Act to follow.”

And then, are specified seven conditions which were the seven conditions put in the Act in order to settle this seven year controversy.

These were the concessions to Niagara Mohawk and of the neighboring States into the conservation interest.

But these did not have to do with the basic requirements of the Federal Power Act.

The basic requirements of the Federal Power Act still were kept alive by the specific terms of this 1957 statute.

And if we had it to go into the legislative history, all we have to do is look at the report.

So, this is the House report, the Senate report reads exactly the same way.

When it describes the bill, it says, “The bill authorizes and directs the Federal Power Commission to issue a license pursuant to the provisions of the Federal Power Act to the New York Power Authority.”

So, I just don't think there can be any question in this case.

The explicit statutory language says, we must go to the Federal Power Act.

Justice Felix Frankfurter: But it doesn't say that.

It says, “The conditions we've been granting the license, it is explicit as to what it takes over, namely there are general provisions in granting a license which have behind them the general public purposes which the Federal Power Act was tasked and at present much had those and (Inaudible) have some additional ones.

That doesn't mean you must -- that this incorporates every provision of the Federal Power Act.

Mr. Arthur Lazarus, Jr.: What -- what the statute does Your Honor and what the Court below found is that the statute in the first section names the licensee.

Now this, in essence, removes the power of the Commission to choose among competing licensees.

And the second part of the statute, that is Section 1 (b), there are -- there is the direction that the Commission shall include certain licensing conditions in the license and seven licensing conditions are specified.

Justice Felix Frankfurter: But that's all it does, that's all it does.

Mr. Arthur Lazarus, Jr.: That is correct, Your Honor.

But it, it also says that these are in addition to those deemed necessary and required under the Federal Power Act.

Justice Felix Frankfurter: I don't have to go through any other provision of Federal Power Act in order to find the scope of this Act or the limitations of this Act.

Mr. Arthur Lazarus, Jr.: It -- well, that is true, Your Honor in the sense that we know that this Act only did two things.

All it did was name the licensee and specify certain conditions to go in the license.

That's all this Act did.

And we know from the terms of this that everything else with respect to the license is controlled by the Federal Power Act.

But that's what this -- this is what this Act said.

Justice Felix Frankfurter: I don't -- that's exactly what I don't think.

Justice Charles E. Whittaker: That is in fact the Government's position does, by relying upon the meaning of reservation as defined in Section 2 (b).

Isn't that provision -- does -- does the Government dispute the position you now did?

Mr. Arthur Lazarus, Jr.: Oh yes.

The Government's position is that this statute licensed a project.

It fixed the nature of the project, it set the engineering details of the project, and that all that Federal Power Commission had was a ministerial duty.

We put a stamp of approval on this project licensed by Congress.

And what I am saying is that that is not what the Act did.

What the Act did is name the licensee and specify seven conditions.

These seven condition vary in some respects from conditions in the Federal Power Act.

And then, with respect to all other issues, the matter was to be decided by the Federal Power Commission --

Justice Felix Frankfurter: But, where do you find -- what's the justification for that statement that you've just made?

Mr. Arthur Lazarus, Jr.: Well, I -- I find it Your Honor in the -- in this, the part of Section 1 (b) that says, in -- at -- 1 (a) says, “Federal Power Commission grants license.”

1 (b) says that “the Power Commission shall include among the licensing conditions in addition to those deem necessary and required under the terms of the Federal Power to follow.”

Now, as I read that, what the -- what Congress was saying is that here are seven specified conditions.

With respect to everything else, you must deal with the Federal Power Act.

And this is -- this is what the --

Justice Felix Frankfurter: But -- but the Federal Power Act isn't exhausted through its enumerations of the licensing conditions.

There are amount of other things in the Federal Power Act.

Mr. Arthur Lazarus, Jr.: That is correct.

Justice Felix Frankfurter: And those are not included.

Mr. Arthur Lazarus, Jr.: They are -- they are not included in the statute but they must be included in the license.

Justice Felix Frankfurter: But, why Congress didn't say so and just limited itself to the licensing conditions?

It could very easily have said in conformity with the Federal Power Act.

That is not what it said.

Mr. Arthur Lazarus, Jr.: It said it in -- in the reverse way by saying that you are putting -- we are putting in -- that there are conditions in the Federal Act.

These we recognize exist.

In addition to those provisions --

Justice Felix Frankfurter: But you're using a phrase which is not accurate.

The Government says, there are provisions in the Federal Power Act.

It says the licensing condition which is only a part of the Federal Power Act.

Justice John M. Harlan: May I ask you which part of the -- what conditions in the Federal Power Act you are relying on when you get over this point?

Mr. Arthur Lazarus, Jr.: Sections 3 (2) and 4 (e).

4 (e) which says -- 4 (e) which says that before you can issue a license on a reservation which in 3 (2) is defined as an Indian reservation, you must make a finding that the purpose for which the land to be -- is to be put under the license is not inconsistent with the purpose for which the reservation was created or established.

And my point here is, that the Commission has made a finding that it cannot, in this case, make such a finding.

In other words, that what the New York Power Authority is attempting to do on the Tuscarora Reservation is inconsistent with its purpose.

It could not make the finding under the first proviso of Section 4 (e).

And my point is that that is one --

Justice John M. Harlan: Your point is that that is a licensing condition.

Mr. Arthur Lazarus, Jr.: Under the Federal Power Act.

Justice John M. Harlan: What I'm getting -- what I'm getting at is why do you have to go any further than licensing conditions.

Maybe it's the theory of your argument but haven't just understood it.

Mr. Arthur Lazarus, Jr.: Well, I'm not going any further than licensing conditions.

If -- if that's what you mean, Your Honor.

All I'm -- all I'm trying to do -- what -- what the Government's argument is, is that the 1957 statute superseded Section 4 (e) that we never have to get to Section 4 (e).

And my argument here is --

Justice John M. Harlan: Your argument here is that that is the licensing condition?

Mr. Arthur Lazarus, Jr.: That is correct, Your Honor and therefore, it was specifically preserved under this Act.

The 1957 statute --

Justice John M. Harlan: And that's all you relied?

Mr. Arthur Lazarus, Jr.: -- that's all I'm relying.

Justice Felix Frankfurter: I understand that argument.

Mr. Arthur Lazarus, Jr.: Yes.

Justice Felix Frankfurter: But not the generality of it.

Mr. Arthur Lazarus, Jr.: Oh, I'm -- I'm sorry if I gave the impression I was going any further than that.

All I'm trying to say is that this statute on its face did not supersede Section 4 (e).

And it didn't do it on it's face, it didn't do it in the Committee report, and I believe I have here the Federal Power Commission's own report on the legislation in which they point out that directing the issuance of a license to a -- to a particular licensee is a unique way for Congress to act, because generally, this is left up to the Commission.

And I'm reading now from the hearings on these bills in 1957 before the Senate.

This is April 10th, 1957 and I'm reading at page 7, the Power Commission's own report on this legislation where it says, “Congress -- Congress may exercise its unquestioned prerogative of selecting the licensee by direct legislative enactment.

Moreover, the bill properly recognizes the fundamental safeguards to the public interest embodied in the Power Act, and that the Commission must consider the Power Authority's plan of development and prescribe whatever license terms and conditions it deems necessary to effectuate the provisions of the power.”

Now, what I say is that this is a clear indication that Section 4 (e) is preserved by this 1957 statute.

Now, in their arguments to that, the Solicitor General and counsel for the Power Authority of the State of New York, both have emphasized to the Court not the prime issue in the case that of legislative consent, but rather the physical signs and importance of the Niagara project.

Now, the major theme seems to be that this vast project, and I will concede right here and now that it's very great undertaking, simply cannot be constructed to plan capacity without using Tuscarora lands.

And from this premise, they conclude that Tuscarora lands, as a matter of necessity, must be subject to condemnation to be used in the project.

Now, I submit Your Honors that this argument is being made in the wrong Court.

That whether the alleged necessity to take Tuscarora lands actually justifies a taking is a matter for Congress to decide.

As the Court and its questions recognized that a portion of the reservation is -- in effect, is essential to full development of the Niagara River.

Petitioners could and they still can go to Congress, and Congress, in turn, has the undoubted right to sanction the condemnation of a portion of the Tuscarora Reservation.

We don't dispute that one bit.

But having failed to go to Congress and getting legislative treaty, petitioners may not now seek to substitute an alleged need to require respondent's land for the necessary legislative consent, the taking of those lands.

And I would like to point out with the -- as it is pointed out in Footnote 5 of my brief, that when we were discussing settlement, and this is a matter which actually is extraneous to the legal principles in the case, that the fact to the matter is that the settlement negotiations broke down for the very simple reason that the chairman of the Power Authority wrote to me saying, “We will not make any settlement contingent upon Federal Legislation.”

And the ground expressed in the letter was, we have to know the exact dimensions of the reservoir by March of 1959.

And here, it is December of 1959 and we're still litigating.

Now, getting over to the basic issue in this case that of legislative consent, I would like to touch very briefly upon a few general principles of law which have guided our dealings with Indian tribes for 175 years in which I feel are basic to resolution and understanding of the issue in this case.

That is as the Court has recognized by its question, much of petitioners would like to ignore the fact.

Respondent is an Indian tribe and respondent's lands are an Indian reservation.

And the relationships of the parties in this case are not the same as they would be if non-Indians were involved.

Now, I think I can state the general proposition very simply in this way that Tuscarora lands are subject to federal prohibitions against alienation without the consent of the United States.

And in view of this prohibition against alienation, the expressed consent of the United State is necessary if Indian lands are to be taken or otherwise acquired.

And again, I might point out --

Justice Felix Frankfurter: Is that in the history of taking of Indian lands?

Mr. Arthur Lazarus, Jr.: Pardon me?

Justice Felix Frankfurter: Is that in the history?

Mr. Arthur Lazarus, Jr.: Well, the history of taking of Indian lands is actually been by treaty and then by agreement.

Justice Felix Frankfurter: Yes.

Mr. Arthur Lazarus, Jr.: But this has always been of course with the United States as a party.

Justice Felix Frankfurter: Are you saying that Indian lands have not been condemned apart from treaty and apart from explicit authorization by name in statutes.

Are you saying that?

Mr. Arthur Lazarus, Jr.: I am saying that with -- with only one or two exceptions.

The exceptions that have come up are Seneca Nation against Brucker, which was decided by the Court of Appeals to the District of Columbia Circuit where the Court found in the legislative history of the Act.

Such a wealth of material dealing with the lands as the Seneca Nation that it said, “an intent on the part of Congress to take can be found in the Act.”

But otherwise -- oh, and the one other situation is one out in Montana with respect to the Yellowtail Dam.

But in every other situation, these -- Congress had specifically provided either in the general authority that's 25 United States Code 357, the general authority to condemn a lot of Indian lands.

Or, there is a 1926 statute which authorizes condemnation in several Indian lands.

In -- in my brief, I cite a number of other representative statutes where Congress granted specific authority to take Indian lands.

This -- and this, of course, we must distinguish between the Corps of Engineers which is an arm of the United States and the Power Authority of the State of New York which is a State agency.

It is clear that where a State agency involved -- is involved there is not a single case where condemnation has been authorized without specific legislative consent.

Justice John M. Harlan: May I ask you if I may, just what is your argument, the point you are seeking to establish here?

Mr. Arthur Lazarus, Jr.: But the point I am seeking to establish Your Honor is very simply the one that --

Justice John M. Harlan: Suppose the Commission -- are you arguing that even if the Commission made the finding required by 4 (e) that it's -- it could not have taken the Indian lands?

Mr. Arthur Lazarus, Jr.: No, I am not making that argument, Your Honor.

I would say in the -- on the of facts in this case, the Commission could not make the finding under 4 (e) as a matter of law.

Justice John M. Harlan: Well, suppose it could make it? What would you say then?

Mr. Arthur Lazarus, Jr.: It's -- my position is, is that if the Commission could make the finding under 4 (e), then, Tuscarora lands are to be licensed for the project and we get paid an annual compensation under Section 10 (e) of the Act just like any other Indian land.

Now --

Justice Felix Frankfurter: Do you say it couldn't make it as a matter of law, because it would have to be made by the Secretary?

Mr. Arthur Lazarus, Jr.: Well, no.

My position -- and -- and this --

Justice Felix Frankfurter: Isn't that true?

Mr. Arthur Lazarus, Jr.: This is not an issue in this case, Your Honor.

My position with respect to the facts of this particular case as we see here on the map -- what -- what the Power Authority wants to -- to flood is 22% of the reservation.

And my position is, as a matter of law, that you cannot flood 22% of the reservation and find that consistent with the purpose for which the reservation was established.

But I don't have that problem on the facts of this case because the Commission refused to make the 4 (e) finding.

And that finding has never -- that refusal has never been appealed and is not before this Court.

On the record before this Court, we must accept and the Government -- of course, the Commission cannot impeach its own finding.

We must accept that the -- that 4 (e) finding cannot be made in this case because the Commission said it could not.

Justice John M. Harlan: Assuming that the Commission didn't have to make the finding, what's your position then?

Mr. Arthur Lazarus, Jr.: In other words, that -- that Tuscarora lands were not covered --

Justice John M. Harlan: Following the Government's position here prevails, I'm not suggesting for a moment that it will, but I'm putting the question to you.

Then, what is you view, what is your -- what is your position then if it didn't have to make?

Mr. Arthur Lazarus, Jr.: My position -- my position on that basically is that there is still not enough authority to find -- to authorize the condemnation of Tuscarora lands because Section 21 is a general authority to condemn and that there is nothing in the 1957 Act giving anyone authority to condemn.

I might say the Second Circuit did not agree with me on this point.

Justice John M. Harlan: That's the question -- that's the question that would be reached in the appeal that we're not hearing now.

Mr. Arthur Lazarus, Jr.: That is correct.

Justice John M. Harlan: In which you consider that question would be before us here or --

Mr. Arthur Lazarus, Jr.: Not -- not at all, Your Honor.

This question is not before you at all.

If -- if the 4 (e) finding does not have to be made, as I say, my basic position is that we then don't have any consent.

My argument with respect to the Federal Power is that assuming we have to find consent to the taking of Indian lands, where can we find that consent?

We can find it in the Federal Power Act only in Sections 3 (2) and in 4 (e) and in 10 (e) which deal with Indian lands.

We cannot find it in Section 21 which is merely a general authority to condemn.

Now, if the Court says that Sections 4 (e), and therefore Section 3 (2) and Section 10 (e), don't apply to the Tuscarora Reservation, then, we have no consent when we can't bring the Tuscarora under the Federal Power Act because as the language in three sections which deals with Indian Reservation.

And then turn right around and say that these three sections don't apply to it.

What we have to do with respect to the Federal Power Act, if we find consent in the Federal Power Act, we must bring Tuscarora lands wholly under the Act and give the Tuscarora as the benefit of all of the provisions of the Act.

But, if we find that 4 (e) doesn't apply, then we are thrown back upon the general restriction on alienation 177 and 233 of the Title 25.

Justice John M. Harlan: Where are the appendixes in brief?

Mr. Arthur Lazarus, Jr.: These are in the appendix to the Power Authority's main brief at page 6 (a) and 7 (a).

Section 177 says that “no purchase, grant, lease or other conveyance of land or of any title or claim thereto from any -- 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.”

Now, since 1871, the United States has not been entering into treaties with Indian tribes but it has been making agreements with them.

It's the only difference there was whether both Houses of Congress would approve the agreement instead of just the Senate approving the treaty.

Justice Charles E. Whittaker: How would, if I may ask you so, mere consent of the Congress obviate need the compliance of 177?

Mr. Arthur Lazarus, Jr.: Well, this is why I feel that expressed consent of Congress is necessary.

In other words, here is a specific statutory protection in 177.

I might add it's carried over specifically to the State of New York and the next quoted statute which is now Section 233 of Title 25.

And these are specific protections against -- or let's say prohibition which is in the amounts for protection, it's a prohibition against the alienation of Indian land without the consent of the United States.

Justice Hugo L. Black: Well, now, does it --

Justice Charles E. Whittaker: Excuse me.

Go ahead -- you go.

Justice Hugo L. Black: No, I just thought to ask whether this was with a prohibition against the condemnation.

Mr. Arthur Lazarus, Jr.: Well, condemnation is a form of alienation.

And therefore, I would say it is -- it operates to get --

Justice Hugo L. Black: That's also a form of taking it, isn't it?

Mr. Arthur Lazarus, Jr.: Well, it operates to extinguish the rights of the Indians in it and this statute says that no such extinguishment shall be valid in law or equity unless done with the consent of the United States.

This is -- this is all I am -- all I am arguing as I am not trying to say that Congress does not have the power to condemn this land.

All I am trying to say is that the restriction on alienation plus the guardianship entrusted to the Untied States in these lands means that Congress must express itself in clear terms.

Justice Charles E. Whittaker: -- may I ask you a question Mr. Lazarus please?

Mr. Arthur Lazarus, Jr.: Yes, sir.

Justice Charles E. Whittaker: If Section 177 applies at all, then it requires either a treaty or a convention, does it not?

How then would mere consent, either expressed or implied, satisfy that section, if it applies?

Chief Justice Earl Warren: You may answer that after lunch.

Print this transcript Transcript: 

Argument of Arthur Lazarus, Jr.

Mr. Arthur Lazarus, Jr.: Mr. Chief Justice.

In response to Mr. Justice Whittaker's question which is that Section 177 refers to treaties or conventions and his question was why I said that consent could be obtained in a statute?

Justice Charles E. Whittaker: (Inaudible)

Mr. Arthur Lazarus, Jr.: Mere -- mere consent expressed in a statute is -- is the way I phrased it, Your Honor.

And I think we can find the answer to that in two places.

One of the places is in an 1871 statute which is codified as 25 U.S.C. Section 71.

This is not cited in the briefs except in one footnote in my brief, which says that henceforth, no treaty shall be made with Indian tribes.

And thereafter, Congress has dealt with Indian tribes on the basis of statutes frequently incorporating an agreement into the terms of the statute.

In terms of decisions of this Court, there is the decision in Lone Wolf against Hitchcock, which is cited in our brief, I believe, at page 75.

The citation is 187 U.S. 553, the 1903 decision, in which this Court held that Congress, by a statute, could abrogate a treaty with an Indian tribe.

Insofar as Indian affairs are concerned, the decisions of this Court and the practice of Congress seems to have been that statutes are raised to the same level as treaties, and that a subsequent statute can override an earlier treaty.

So now the treaties are no longer made, the will of Congress, and in this particular case, the consent of Congress is expressed in the statute.

Now, of course, the expressed congressional consent cannot be found in the 1957 Act authorizing the power project.

Justice Felix Frankfurter: But the -- the whole case of United States, as I understand it, is that that Act made a draft or authorized a plan to be made and the practically, the feasibly, the appropriately effective and only effective way of carrying out that which the Act of 1957 contemplated was to include portion of the Tuscarora Reservation.

Needless to say, I'm not contesting that I agree with that but that's the case and that's the case that has to be met.

Mr. Arthur Lazarus, Jr.: I -- I believe they used necessity in two context, Your Honor.

However, the Government does not claim, not in the briefs and not in argument here today, that there was any reference to Tuscarora lands in either of the statute or in the legislative history.

The only reference --

Justice Felix Frankfurter: I am talking about what counsel to the Power Authority said in his last remark.

Mr. Arthur Lazarus, Jr.: Well, counsel for the Power Authority said that a map had appeared in a newspaper in Niagara Falls.

I submit, Your Honor that this has nothing to do with what Congress meant.

Justice Felix Frankfurter: I think he also said in map that's been before the Committee of Congress.

Mr. Arthur Lazarus, Jr.: The -- what he said with respect to the map being before the Committee of Congress was that it did not have property lines on it.

In other words, my -- my reference -- the methods -- if --

Justice Felix Frankfurter: How do you said it was that it included that territory, it didn't have the label?

Mr. Arthur Lazarus, Jr.: That is correct.

That is what he is saying.

Now, it just so happens that that particular brochure, the exhibit to which he referred, was not before Congress.

There is a -- and that is -- that is argued in the brief.

But even assuming that it were, there is still no reference here that nobody looking at this map, at least no average Congress and then looking at this map could possibly deduce from this that Indian lands were caught.

Justice Felix Frankfurter: No, but he might deduce that those lands were necessary and the fact that they were Indians doesn't make them any of the less method there.

Mr. Arthur Lazarus, Jr.: The -- he -- he could -- about the most he could deduce from that is that a reservoir was necessary.

But this does not tell either the congressmen or anyone else where that reservoir is going to be located because a 60,000 acre-foot reservoir can be built in an infinite number of ways.

It can be, as this plan reservoir is, 2,400 acres in surface and 25 feet deep on the average or you can have a reservoir covering 1,000 acres and 60 feet deep, just telling a member of Congress that we're going to build a 60,000 acre-feet reservoir doesn't tell him a thing about its size, shape or anything else.

Now --

Chief Justice Earl Warren: May I ask if the Power Commission found that this was the only way that all of this water could be used or does it find that this was the best way?

Mr. Arthur Lazarus, Jr.: It found on the rehearing, and I might say that it is respondent's position that its whole discussion here is dicta.

On rehearing, it said that this is the best way because of the community disruption and expense and delay.

Now, the first time this was up before the Commission.

In other words, the January 30, 1958 licensor, which is what this appeal is based on, when that came out, the Commission said “alternative lands are available”.

Chief Justice Earl Warren: Yes.

Mr. Arthur Lazarus, Jr.: And then it went up to the Court of Appeals, the Court of Appeals reversed or rather remanded for a very limited purpose.

The Court of Appeals remanded for the sole purpose of finding out whether the 4 (e) finding could be made.

And it said, “Come back to us within 15 days.”

Now, the Commission noticed this for hearing and it set the hearing down on the issues presented in Section 7 of the Court of Appeals' opinion, and the issue in Section 7 of the Court of Appeals' opinion was solely the 4 (e) finding.

And it was not until we got before the hearing examiner that we began to get into these myriad other issues about alternative lands and their community disruption and so forth, and what kind of use Tuscarora is made of the land.

All of these things completely irrelevant to what the case was remanded for.

So it's my basic position, one, that the finding of the Commission with respect to necessity in February of 1959, which sheer dicta was completely outside of what the case was sent back to the Court.

Now, even assuming that the Commission had a right to make some kind of statement, they did not say and they have never said unequivocally that this land, Tuscarora land, is absolutely essentially to build the project.

What they said was this land -- that the community disruption expense and delay make it unfeasible to take the alternative land.

Now, I would like to show you just a little bit about that alternative land, because the Commission's 1959 finding had nothing whatsoever to do with facts that existed in 1957.

The Commission's 1959 statement had to do with facts that existed in 1959.

Now, for example, we have these expensive homes here, I believe, that was the Solicitor General's phrase, expensive homes that would have to be either moved or destroyed.

Now, a good number of those expensive homes were built in 1958.

Now, what this has to do with necessity in 1957, I don't understand.

In addition to that, mind you, the alternatives were presented only by the Power Authority.

And the Power Authority, we can well imagine, just put this in context, was not going to come up before the Commission on the remand and say, “Yes, alternatives are available because we, the Power Authority, had been building it the other way for a year and a half.”

And they certainly were not going to come up before the Commission to try and prove that alternatives could be used.

So what they did was, they took this area in here, 1695 acres, and they used it as the constant.

That's what they've been working on.

And there was no variation in that.

So that when you eliminated this area on the Tuscarora Reservation which they claimed they needed, then we got to their artificial configuration just to where else they might go.

But the fact is that in considering this 1695 acres, they kept not only the surface area but the height at constant and the reason they kept the height at constant was because they had ordered several million dollars worth of machinery for generators, etcetera, which they said they could not change.

It would not take a higher reservoir.

So all of the evidence before the Federal Power Commission is based on activities after January of 1958 when the license was issued.

And all of this great expense, great delay, great communities disruption is caused solely by the fact that the Power Authority abandoned every possible alternative in 1957 and went ahead notwithstanding this litigation to build a project as if it were going to get Tuscarora land.

Now, after the Federal Power Commission held against the New York Power Authority, the New York Power Authority came in with an application for an amended license.

And now, for the first time we learn that we can raise these dikes by 15 feet and still use the machinery that was on order back in 1958.

So we don't need to take 1721 acres, and we don't need to take 439 homes.

We can raise the dikes here by 15 feet still using their machinery to take maybe 400 acres in there and get a 60,000 acre-foot reservoir.

So that there is, on the facts, absolutely no necessity for taking Tuscarora lands even using their facts.

And of course, their facts are 1959 facts, not 1957 facts.

Justice Charles E. Whittaker: Mr. Lazarus, may I ask, what carved you to say to the Government's argument that the concluding phrase of Section 3 (2) owned by the United States modifies in this definition of the word “reservation” the preceding characterizations of national forests, tribal lands embraced with Indian reservations, military reservations, and other lands?

Mr. Arthur Lazarus, Jr.: I think my first answer to that is as it was obvious from the questions from the bench that the language speaks for itself.

Tribal lands embraced within Indian reservations means on the face of the statute just that.

We have a category, Tuscarora fits in to it, by definition, they fall in.

Now, what I would like to do -- I might say that -- that the construction put on this by the Government is contrary to every case handed down in every jurisdiction with respect to fee lands.

In other words, this Court in Candelaria case, in the Sandoval case, both of which are cited in my brief, and (Inaudible) said that fee lands, lands owned in fee by Indian tribes they're entitled to exactly the same protections as the lands held in trust by the United States.

Justice Felix Frankfurter: But doesn't it depend in what connection that problem arises, it's now that the generality like that is healthy to construe the specific provisions, bearing as it does, on the exercise of the power of eminent domain.

Mr. Arthur Lazarus, Jr.: It helps -- it helps me in this way, Your Honor, that it throws -- that the general rule is that Tuscarora lands ought to be treated the way other lands are.

So this draws a tremendous burden upon the Government to say that somehow Congress intended to make an exception to the general rule and the Federal Power.

Congress never said it was making an exception.

And mind you, when they described Indian --

Justice Felix Frankfurter: Within subject matter of a statute, they intrinsically make what you call an exception is an exception of the difference.

Mr. Arthur Lazarus, Jr.: Your Honor, the statute itself --

Justice Felix Frankfurter: I don't agree with it, I'm just saying that I probably (Inaudible) with Indians of any problem, don't get much help out of these generalities.

Mr. Arthur Lazarus, Jr.: The -- if I may give you one more generality and then get to a particularity, the -- the next thing is that in the statute itself, in dealing with Indian lands, Congress made a distinction, and where it dealt with Indian reservations, it said the definition of reservations includes only tribal lands.

With respect to individually allotted lands within Indian reservations, they get treated some other way.

Now, here was a clear-cut example of where Congress in the statute drew a distinction within Indian reservations between individual lands and tribal lands.

Now, what the Government is asking us to do is to say Congress drew another distinction.

It was not only a distinction between individual and tribal but also tribal-owned in fee or a tribal -- by the Indians or a tribe owned in fee by the United States.

Justice Felix Frankfurter: I well understand -- I well understand and appreciate, I think, that where Congress deals with Indian legislation, where it is concerned with Indian power or interest, reservation interest, that the generality which you invoked is relevant and conclusive, but in this statute, it wasn't dealing with Indian problem, it was dealing with another kind of category, namely, what -- as to what lands, regarding what land permission must be given to exercise the power of eminent domain which, without such permission, wouldn't exist.

And therefore, the problem with legislation was not vis-à-vis Indians but vis-à-vis government lands.

Mr. Arthur Lazarus, Jr.: Then -- then, Your Honor, I think I would like to get to the particular point which I think effectively demolishes the Government position here, which is very (Inaudible).

I think we have to agree if we look at the statute that Congress intended to deal with Indian lands under the statute.

It referred to them in Section 3 (2), it referred to them in Section 10 (e).

And by reference, they're included in Section 4 (e).

Now, the Government's position boils down to this that -- that Indian lands that Congress was intending to deal with in the Federal Power Act are only Indian lands which the United States may dispose of under the Property Clause.

And I submit, Your Honor, that if we accept that construction, we eliminate virtually all Indian lands in the United States from the Act, because what kind of Indian lands do we have nowadays?

We've got, let's say, in rare instances, the type of Indian reservation that was under consideration and before this Court in the McGowan case back in about 1940.

This was land that the United States had purchased with gratuity funds.

It was on the public domain or there with private land in the State of Nevada, had been purchased with gratuity funds and set aside for it.

All right.

I would have to concede that is land owned by the United States, but the number of acres in that category is infinite (Inaudible).

We have some reservations set aside by executive order where the Indians occupying it have only aboriginal rights and which, as against the United States, are non compensable.

But the bulk of all Indian reservations in the United States are reservations today where the Indians have recognized titles to their lands, either by virtue of treaty or by virtue of statute or by virtue of some form of recognition by the United States Government.

And it has been the consistent rule in this Court that where a tribe has recognized title to its reservation lands, it has a compensable property interest.

It has a property right under the Fifth Amendment.

Now, in this situation --

Justice Felix Frankfurter: It may have that without having a fee.

Mr. Arthur Lazarus, Jr.: That is correct, Your Honor.

But in this -- under the Federal Power Act, the Government's position is that if their legal title is in the United States, the United States may dispose of that interest under the Property Clause.

Now, I will not get into this subject of whether the interest of the United States where it had fair legal title as a property interest.

Let us assume that it is, assume that the United States can dispose of its fee under the Property Clause, it cannot dispose of the Indians' interest under the Property Clause.

It has to invoke some other source of authority to dispose of the Indians' interest, because that is not property of the United States.

And this Court has so held on repeated occasions.

It has -- now, in the Government's reply brief, they tried to deal with this question by saying, “Oh, we invoke the power of eminent domain”, but under the Federal Power Act, they don't invoke the power of eminent domain with respect to lands where Indians have recognized titles.

They license it under 10 (e).

And I say the only way you can license under 10 (e) is under the Indian Commerce Clause.

Justice Hugo L. Black: May I ask you, is there any difference between practically -- basically speaking are you saying that they do not have a right to take it by eminent domain but they have a right to license it in some way so they would pay differently?

Mr. Arthur Lazarus, Jr.: No, my -- my point here -- my point here is this, Your Honor.

Justice Hugo L. Black: I'm talking about practically speaking when -- I haven't quite understood it here, is there any dispute here with the value?

Mr. Arthur Lazarus, Jr.: No.

Not at all.

Justice Hugo L. Black: Is there any difference of relative money would go directly to the Indians or whether it was those of the Secretary of Interior?

Mr. Arthur Lazarus, Jr.: Not -- not at all.

As a matter of fact, I have -- I have said in my brief that my own view, and I must say that I don't think the court below agreed with me on this thing, this is not at issue, but my own view is that my client's land, the Tuscarora lands, if they can be licensed, are not subject to condemnation under Section 21 but are subject to the provisions of 10 (e) which call for an annual rent.

Justice Charles E. Whittaker: So that you never loose the title.

Mr. Arthur Lazarus, Jr.: That is correct.

Justice Charles E. Whittaker: But would continue to get an annuity ad infinitum.

Mr. Arthur Lazarus, Jr.: Well, the license only runs for 50 years and the provisions are with respect to Indian reservation that at the end of 20 years, we'll review how much we're receiving.

If it isn't adequate, we get more and if it's under review 10 years --

Justice William J. Brennan: You say we get more, who gets more.

Mr. Arthur Lazarus, Jr.: Oh, this would be we being the Indian.

Justice Hugo L. Black: It is the (Voice Overlap)

Justice William J. Brennan: (Voice Overlap)

Mr. Arthur Lazarus, Jr.: Well, paid to the Secretary for their benefit.

Justice Hugo L. Black: In either instance.

Mr. Arthur Lazarus, Jr.: Yes.

Justice William J. Brennan: In other words, they never get the actual money except that he --

Justice Felix Frankfurter: Goes in --

Justice William J. Brennan: -- applies it or goes it out to him.

Mr. Arthur Lazarus, Jr.: That's correct.

Justice Charles E. Whittaker: Well, now can you point to any language in Section 10 that deals with payment other than to the United States?

Mr. Arthur Lazarus, Jr.: No, there is none.

Justice Charles E. Whittaker: Now, then, may I ask you first?

I got a series of two or three questions.

Do you agree that it is within the power of Congress to artificially define the word “reservation” for the purposes of the Power Act?

Mr. Arthur Lazarus, Jr.: Yes, sir.

Justice Charles E. Whittaker: Number two, if the findings that are required by 4 (e) mainly that the license will not interfere with or be inconsistent with the purposes of the -- for which the reservation was created had been made by the Commission, then you would claim, would you, that you would be entitled to payment on an annual rental basis under 10?

Mr. Arthur Lazarus, Jr.: That is correct.

Justice Charles E. Whittaker: I see.

Now, I understand you.

Justice William J. Brennan: Well, does that then the difference as far as the Indians are concerned assuming now the Government can get these lands or the Power Authority can for the purposes of this project?

If this would've be, by condemnation, would be a lump sum payment, is that it?

Mr. Arthur Lazarus, Jr.: Well, in this case, we never reached this question around.

You see --

Justice William J. Brennan: Well, I'm -- I'm just trying -- put in -- make this hypothetical.

It's -- if the -- if there could be condemnation here, there would be a lump sum payment.

Mr. Arthur Lazarus, Jr.: That is correct.

Justice William J. Brennan: And if there cannot be and yet they may be utilized for the project, I gather, you say 10 (e) applies and the Indians will get X dollars over whatever period of year, is that it?

Mr. Arthur Lazarus, Jr.: That is correct.

Now, I -- I would like to --

Justice William J. Brennan: Oh, was that so?

Mr. Arthur Lazarus, Jr.: Now, if -- if -- I understand what you're saying is that if Tuscarora land -- it is my position that if Tuscarora lands can be taken --

Justice William J. Brennan: Yes.

Mr. Arthur Lazarus, Jr.: -- the Tuscarorers will not get a lump sum payment on -- on the condemnation but rather will get compensation on an annual basis under Section 10 (e).

That is my position --

Justice William J. Brennan: Yes, I --

Mr. Arthur Lazarus, Jr.: -- although --

Justice William J. Brennan: -- I understand that, but suppose they're wrong and suppose they may be taken at condemnation, then it's a lump sum payment.

Mr. Arthur Lazarus, Jr.: Then it is a lump sum payment.

Justice William J. Brennan: And the --

Mr. Arthur Lazarus, Jr.: And this --

Justice William J. Brennan: -- difference between the two sums maybe very great.

Mr. Arthur Lazarus, Jr.: Very substantial.

Yes.

Justice William J. Brennan: Is that what we're fighting about here?

Mr. Arthur Lazarus, Jr.: No, sir.

Not at all.

That is not in this case at all.

I'm -- I'm just to say one other thing.

When I say my position here, if we ever reach that question would be that we are paid under 10 (e).

The Court of Appeals below did not agree with me on that.

In a footnote they indicated otherwise that they thought the land would be condemns.

The Court of Appeals for the Second Circuit also said that this land could be condemned.

But these are questions which we do not reach in this case because the object, in fact, in this case is that there is no authority to use Tuscarora lands.

That being the situation, we don't have to worry about how we'll compensate.

Justice Charles E. Whittaker: And that is the situation in your argument, as I follow you, because the findings required by 4 (e) were not made by the Commission.

Mr. Arthur Lazarus, Jr.: Could not be made and the Commission said it couldn't make them.

And my --

Justice Felix Frankfurter: (Voice Overlap) --

Chief Justice Earl Warren: (Voice Overlap) --

Justice Felix Frankfurter: I beg your pardon for that.

Chief Justice Earl Warren: Mr. Lazarus, I -- I was going to ask you this.

The counsel in his last few remarks said that the reason, one of the reasons at least, why there were no congressional action sought this last year was because you -- you and -- and your people and the authority could not agree upon a -- a bill.

What was the difference of opinion, just generally speaking, what was -- if -- if there was such a difference?

Was it this difference between condemnation and license fee?

Mr. Arthur Lazarus, Jr.: No, Your Honor, it was not.

I drafted the bill and submitted it to the Power Authority.

And the response that I got is the response which is given in Footnote 5 in my brief from Mr. Moses, the Chairman of the Power Authority, to the effect, we will not make a settlement contingent upon passage of federal legislation.

You see, it was my position that the Tuscarora Nation was prohibited by law from selling its lands in the absence of congressional consent.

The Second Circuit so held, the court below so held.

So I said we can come to an agreement but that agreement is not affected until it is embodied in federal legislation.

And we came to an agreement, and I wrote it up in a draft bill to be submitted to Congress and the Power Authority said, “No, you must agree to the settlement and then you can go to Congress and try and get some legislation, and we'll help you, but we will be on your land at this point.”

And I said, “Well, I can't do that in the face of two Court of Appeals decisions prohibiting me from doing.”

And that is where we broke down.

Chief Justice Earl Warren: Now, your -- under your proposal, the -- the authority would have gotten the use of this -- of this land and then the --

Mr. Arthur Lazarus, Jr.: We -- we --

Chief Justice Earl Warren: -- project would not have been retarded.

Mr. Arthur Lazarus, Jr.: That is correct.

Our land is not necessary for the project.

Chief Justice Earl Warren: Yes, well, I was just asking.

Justice William J. Brennan: Well, it's -- definitely, it had to got that legislation.

Had you proceeded far enough to reach something like an agreement on the price that which it served?

Mr. Arthur Lazarus, Jr.: Oh, yes, we had agreed on all economic issues.

The only economic issue left open was whether we were going to get free electricity.

And I -- this, the Power Authority said they would not give us which was somewhat incomprehensible to me because they were the ones who first offered it.

So -- but except for that minor issue which did not involve very much in dollars and cents, we were agreed on all economic issues, and it was strictly on this, shall we say, procedural ground that we broke down.

And -- and as I -- as I say in my brief, I couldn't do otherwise because it was illegal to do it.

Justice William J. Brennan: Well, then may I ask, if that agreement has ever been consummated and the purchase price to pay it again, to whom would it have gone?

Mr. Arthur Lazarus, Jr.: In that situation, it would have gone as directed by the legislation.

And I don't think we reach the point of saying whether it would go to the Secretary of the Interior entrust to the Nation or whether it would go direct to the Nation.

We did have --

Justice Hugo L. Black: Is that the real bone of contention?

Mr. Arthur Lazarus, Jr.: No, no.

Justice Felix Frankfurter: As -- as I understand it, do I understand it correctly that you're not claiming here, you're not with this statute the -- this license on the ground that the practicality would show if it were done one way, it would be more profitable to describe that -- that it would have done this way.

You're standing on your legal right not to have this land condemned --

Mr. Arthur Lazarus, Jr.: That's --

Justice Felix Frankfurter: -- as an abstract -- as an abstract legal proposition on which you have a right to stand.

Is that right?

Mr. Arthur Lazarus, Jr.: That is correct, Your Honor.

The -- the -- when I talk about settlement here, settlement is what lawyers always do in litigation.

You never know whether you're going to win or loose.

And -- and I got from my client what I thought was worth the risk of -- of taking.

But unfortunately, it didn't come about.

My position here now is not that we are ever going to settle it, we get more money now because this Court can't give us that.

My position here now is that we have a right to hold our lands until Congress says otherwise.

Justice Felix Frankfurter: In other words, your -- your whole long, long try part of it of Indian interest, like myself, you're not making any arguments of any damage that would be done with the Indians, an interest that would be equal inference except their right to have the law of the land.

Mr. Arthur Lazarus, Jr.: That is correct.

Justice Tom C. Clark: Is your bill --

Mr. Arthur Lazarus, Jr.: And to live -- and to live on their reservation if they have for 150 years.

Justice Felix Frankfurter: Yes, but -- but they wouldn't be leaving it for a settlement it had gone through.

Mr. Arthur Lazarus, Jr.: That is -- but our settlement provided, Your Honor, that there will an alternative land taken over, that there will be (Inaudible) for an agreement that would require -- the settlement requires that Congress to declare that the new land that would be acquired to be officially Tuscarora Reservation.

It doesn't seem we would not be giving up under the terms of the settlement, any land.

We will --

Justice Felix Frankfurter: But you would --

Mr. Arthur Lazarus, Jr.: -- get land from --

Justice Felix Frankfurter: -- be giving up this land for a price, is that right?

Mr. Arthur Lazarus, Jr.: That is correct.

Justice Tom C. Clark: Mr. Lazarus under your bill that drew in the -- that price to be direct to the Tuscarora (Inaudible)?

Mr. Arthur Lazarus, Jr.: I just don't remember.

It was not a material fact, Your Honor.

Justice Tom C. Clark: (Inaudible) --

Mr. Arthur Lazarus, Jr.: I just don't remember at this time.

Justice Felix Frankfurter: It's not important.

Mr. Arthur Lazarus, Jr.: Yes.

Now, I would like, in the -- in the minutes remaining to me, to deal with the arguments that the Government advanced with -- with respect to the 1957 statute in terms of consent by implication.

Now, this argument is founded upon three cases, Henkel against United States, Spalding against Chandler and Missouri, Kansas & Texas Railway Company against Roberts.

Now, I'd like to take the last one up first before it's the only points to mine.

This case is cited by defendant at page 53 and -- pages 53 and 54 of its main brief for the proposition, and I now quote, “The taking of Indian reservation land was authorized by the grant of a railroad right of way which 'necessarily involved their possession' despite absence of any showing that Congress had been aware of that necessity.”

Now, without getting too deeply into the facts of the Missouri, Kansas & Texas Railway Company case, I would like to call your attention to this Treaty of September 29, 1865, the Osage Nation.

Now, these lands, what was involved in Missouri, Kansas case was a grant of land to the State of Kansas in aid of construction of a railway.

And that grant run through the Osage Reservation.

And it's the Government's argument that by necessary implication and without congressional knowledge, the taking of the Indian lands is authorized.

Now, the grant to the State of Kansas was the Act of July 26, 1866. I would like to call your attention to the fact that about nine months previously in 1865, the Osage ceded the bulk of the lands covered by the grant.

In Article 11 of the treaty of cession specifically says “Any railroad company, when the lines of their roads necessarily passed through the lands of said Indians, shall have the right of way upon payment of fair compensation therefore.”

Now, this Treaty came up before the Senate on June 26, 1866, that is 30 days before the grant for the State of Congress -- State of Kansas.

And the Senate amended the Treaty to provide that the ceded lands could be sold under public landlord and then they added this proviso, “including any act granting lands to the State of Kansas, an aid of the construction of a railroad through said lands”.

So my point here, Your Honors is, with respect to the Missouri, Kansas & Texas Railway Company case extends for the exact opposite proposition as that which was cited for by the Government.

View with expressed congressional knowledge and expressed congressional provision for taking care of Indian lands.

Now, the Henkel case is distinguishable on about half a dozen grounds which involved a voluntary sale for one, for two, it involved individual property not tribal property, for three, actually, the Indians didn't have any rights, they hadn't any inequities, and four, whatever equities they had where under a statute which granted the United States the power to take the lands for public purposes.

Insofar Spalding is concerned, the -- what the Government cited and dictated to begin with, in addition to that, there, in the Spalding case, we had a specific grant of a specific right of way to a specific company.

That is not what we have in this case.

In this case we have just a mere general authorization of the Federal Power Commission to issue a license for non-federal instrumentality.

So this dissent by implication argument as the Government tries to run just doesn't exist.

There was no authority for it.

Now, I also would like to deal very briefly with an argument made by the Power Authority Industry not made by the Government and understandably so that the decision rendered by the Second Circuit in this case is somehow binding it on the Court of Appeals for the District of Columbia, that the Second Circuit decision would be related litigation.

The Power Authority argument is based upon a complete misconstruction of what the Court of Appeals for the Second Circuit thought.

The case before the Court of Appeals for the Second Circuit was an injunction proceeding against the appropriation of Tuscarora lands while the review could be independent down here in the District of Columbia Circuit.

What the Court of Appeals for the Second Circuit decides and (Inaudible), if the Power Authority has a valid license, it may be gambling to get back to the question of 10 New York Section 21.

But of course, the basic premise upon what -- which the Court of Appeals for the Second Circuit was operating is not true.

The Power Authority is not a valid licensee and therefore, anything that the Second Circuit has to say on this subject would -- may go out of the window.

Now, of course, as Mr. Justice Harlan pointed out in his opinion when we came up with question of stay on the Second Circuit decision, the issue of the validity of the license and the applicability of Section 4 (e), Tuscarora lands is within the exclusive jurisdiction of the District of Columbia Circuit, the court below.

By statute, Section 3 -- 13 (b) of the Federal Power Act which vest exclusive jurisdiction in the reviewing court and of course, is also in accordance with the opinion of this Court in the City of Takoma case.

So that's what we have is -- is argument to the effect that the Second Circuit in someway foreclose the court below in dealing with the issue in this case is just not based upon any principle of law announced by this Court or announced by Congress.

Beyond that, I have no further argument in this Court.

Justice John M. Harlan: May I ask you a question?

(Inaudible)

Mr. Arthur Lazarus, Jr.: Work is -- work is going on every place upon the Tuscarora Reservation.

With respect to the reservation itself, the Power Authority did get permission and has (Inaudible) along these road lines.

This is what we are trying to stop when we asked for the stay, but we couldn't get to it.

This is what we find in the Act to say that we couldn't (Inaudible).

They have made provisions for building these (Inaudible) so that -- as a matter of fact, (Inaudible)

Justice Felix Frankfurter: You made ever --

Mr. Arthur Lazarus, Jr.: -- they have made provisions for building the dikes higher so that they could put in more water (Inaudible).

Of course, my point is they (Inaudible) so that I -- I -- had exactly what they needed without taking any Tuscarora land.

Justice Felix Frankfurter: Did you say the -- what did you say a minute ago about they couldn't use the Tuscarora land ever?

What did you say it was, in answer to Justice Harlan's question?

Mr. Arthur Lazarus, Jr.: Well, they're not using Tuscarora land now.

Justice Felix Frankfurter: And then you said they couldn't be using it.

I don't mean --

Mr. Arthur Lazarus, Jr.: My point -- my point is to saying -- oh, my point here is that with the higher dikes, it's acre-feet, as I say, is -- is a function not only of circuit but also of height, and with the higher dikes, they don't need (Inaudible) if they use the higher dikes (Inaudible) even if they get Tuscarora land, that's our point here.

Justice Felix Frankfurter: MThe provision is about two thirds moot, is it?

Mr. Arthur Lazarus, Jr.: Yes, sir.

That's my opinion.

I think it's about all (Inaudible)

Justice Felix Frankfurter: (Inaudible)

Mr. Arthur Lazarus, Jr.: Because I think -- because I think they can build it elsewhere.

Justice Felix Frankfurter: No, that is -- that wouldn't make it moot [Laughter], but according to your statement if what you say is so, it's physically two thirds moot, is it?

Mr. Arthur Lazarus, Jr.: But did -- did I -- I do not have the facts on it, Your Honor, I --

Justice Felix Frankfurter: No, but you stated some facts.

Mr. Arthur Lazarus, Jr.: I -- I deduce it from what -- from what the Power Authority had said in its brief with respect to what has to be done even if it state its want, and they talk about new application before the Power Authority and they talk about the higher dikes and from this, I conclude that if they didn't want to use or they didn't want the -- the reservoir (Inaudible), but I conclude it has the authority to build along here and has it possible to build the dike 15 feet high which gives them that many thousand more acre-feet of water.

So there is no sense in taking 1,383 acres (Inaudible) get the 50,000 feet reservoir by taking let's say 300 or 400 acres.

But of course, that is the -- the basic -- the basic position here is that the Tuscarorers are standing on their right, as you say Mr. Justice Frankfurter, to remain in the peaceful use and occupation of their reservation in accordance with the laws of the land.

And they are standing on their right to stay there until Congress tells them that they have to get out and Congress has not yet told them that that is the case.

Chief Justice Earl Warren: Mr. Solicitor General.

Argument of J. Lee Rankin

Mr. J. Lee Rankin: Mr. Chief Justice, may it please the Court.

I'd like first to try to reach the (Inaudible) this land as compared to (Inaudible).

This is the land within this (Inaudible) with the whole Tuscarora Reservation.

(Inaudible) but could be used for (Inaudible) and there's considerable work here -- I mean here, here and around this swamp.

This is Exhibit 227 that is not in this transcript of record but it's in the whole record that the Court has.

And I rather than relying on me entirely, I suggest that you might want to compare it and see for yourselves (Voice Overlap) --

Chief Justice Earl Warren: They're substantially the same.

Mr. J. Lee Rankin: Yes.

Chief Justice Earl Warren: That's all I was interested in.

Mr. J. Lee Rankin: Now, in regard to that, the area that was lobbied in this 1100 acres to directly from the east and contiguous in regard to settlement.

It is immensely federal land.

It's been tilt by a white farmers and (Inaudible) with much better improvements.

So that it is not something far away in answer to one of the questions that was asked by a member of the Court.

It is contiguous land and how much it -- it is better land as farmland and so forth whether it says by their purposes or not is another question.

Chief Justice Earl Warren: But it wouldn't be a part of the reservation unless Congress made it so, would it?

Mr. J. Lee Rankin: Well, I don't understand that this is really a congressional reservation at all, but the State of New York did offer to make a tax-exempt like this land is, so as to give them that benefit.

And I think that would be substantially what their benefits were and I think it would still be protected by the trust interest of the United States as guardian.

Now, the question was asked in regard to --

Chief Justice Earl Warren: Pardon me, I am just going to ask this, General, Mr. Lazarus said that there were a very few economic differences between the parties, and that the main thing they're interested in was to getting this -- this land attached to and becoming a part of the reservation if they gave up this -- this land that -- that the authority wants.

What -- what objection would there be to doing that by congressional acts and I'm wondering?

Mr. J. Lee Rankin: The great problem about the legislation, Mr. Chief Justice, was the character of the proposed bill that was suggested.

And I haven't examined this myself, and I haven't -- just telling what I was advised about it, but the -- the difficulty at least that the Power Authority in the State of New York had with it, whether they were right or not, if the Court wishes I will try to secure a copy and furnish it, was that the effect of the bill would be not only to reach this particular problem of condemnation but will raise of the question of the whole 150 years of New York's condemnation of Indian lands in connection with roads and every other public project that counsel for the authority has described.

New York has followed the practice of condemning these Indian lands for they were not owned by the United States just like they were anybody else's.

And so, this legislation would show a recognition of the State of New York of that kind of theory.

And they were just unwilling to expose themselves to a litigation that would be almost limitless.

Chief Justice Earl Warren: They -- they referred was that if the intention of Congress to permit this land to be taken is as clear as the authority of the Government believe that it is, why wouldn't -- why wouldn't Congress be willing to take care of this situation by this, this objection with these things that you (Inaudible)?

Mr. J. Lee Rankin: Well --

Justice Tom C. Clark: Why couldn't it be done much quicker than the litigation to all the courts in the act?

Mr. J. Lee Rankin: I -- I doubt that the impression had no part in this kind of negotiation so I don't know --

Chief Justice Earl Warren: Yes, yes, yes.

Mr. J. Lee Rankin: -- of my own knowledge that the parties couldn't agree to that limited kind of legislation and that it would -- would only be legislation was so broad that would threaten everything that New York States done for many years in this kind of action.

Justice Hugo L. Black: But the only issue was, wasn't it, is really as to whether they have the power to condemn in the state before that.

Mr. J. Lee Rankin: Well, there's the further problem in this case, and I want to turn to that next but --

Justice Hugo L. Black: Well, what I meant was --

Mr. J. Lee Rankin: -- for the question of the license whether it's valid.

Justice Hugo L. Black: But what I meant was if that's the only thing I should say Congress (Inaudible) to condemn, there's no problem with this to condemn, I mean just as Congress wouldn't have the bill.

Mr. J. Lee Rankin: Well, I -- I --

Justice Hugo L. Black: I don't understand why there hasn't been effort made to get that way that you're arguing?

(Inaudible).

Mr. J. Lee Rankin: Mr. Justice Black, I can't answer that except the parties couldn't agree on the type of legislation.

Now, why they didn't each try to go their own way and get some solution, I don't know.

Justice William J. Brennan: (Inaudible)

Mr. J. Lee Rankin: Well --

Justice William J. Brennan: (Inaudible)

Mr. J. Lee Rankin: I think the Federal Government is greatly interested in the license and having it effective, we thought it was taken care of by the legislation.

Now, when you come to Mr. Justice Black's suggestion, unless there could be some doubt, well, of course --

Justice William J. Brennan: (Inaudible)

Mr. J. Lee Rankin: -- it's here because of that and their other decisions.

So I don't --

Justice Felix Frankfurter: Tuscarora stands on the right, the Government stands on the right, the most stand on the right.

Mr. J. Lee Rankin: [Laughs]

Justice Felix Frankfurter: Everybody stands on the right.

Mr. J. Lee Rankin: Well, I -- I [Laughs] hope it isn't that kind of a question before you, Mr. Justice.

Justice Felix Frankfurter: I was -- thought I was describing very accurately the situation.

Mr. J. Lee Rankin: I would like to turn just briefly to the question of the construction of this Act, and I think the whole case turns upon this one question.

And that is Section 4 on page 80 of the Government's brief that's been referred to before.

If you read as -- as it starts out, you'll notice the Commission is hereby authorized and empowered to issue licenses.

Now, that's all that Section 4 is about.

Giving the Commission the power to issue a license but this Act of 85-159 bearing on 7 -- page 79, Section 2 at the bottom, and also the direction as to who should receive this license doesn't give any power or question or right in the Commission to decide who shall get this license.

It doesn't give them a chance to consider whether or not there should be a reservation involved or any other elements in Section 4.

This Act is conclusive, and I emphasize that.

This Act says this license shall be issued under the terms of this Act.

And 4 (e) deals with the question of whether you shall or shall not issue a license.

It is just that simple.

Now, if we would, for a moment --

Justice Hugo L. Black: I don't quite get that.

Mr. J. Lee Rankin: You see, in Section 4, the Congress is telling the Commission that they are empowered, they are authorized and empowered upon certain conditions to issue a license.

And if they find that -- for instance, assume that this was a government reservation.

Let's assume that this was an important military reservation here, belongs to United States Government.

Section 4 (e) requires that there'd be a finding before you can issue a license, that there'd be no interference or inconsistency with it.

That's not just confined to -- to Indian lands, it applies to Government reservations too.

But Congress has taken that away from the Commission.

If --

Justice Hugo L. Black: Which part?

Mr. J. Lee Rankin: In the -- the other Act on page 79, in Section 2 and also in the beginning on page 76.

Now, if you turn to 76 first, the Federal Power Commission is hereby expressly authorized and directed.

They're given no choice.

If they would find some federal reservation, some military reservation of prime importance in exactly that same space that Section 4 (e) would apply to, and it interfered and was inconsistent, they still are directed by the Congress to proceed to issue this license, and they're given no choice.

Justice Hugo L. Black: (Voice Overlap), but what about (b)?

Mr. J. Lee Rankin: Then the -- they shall include among the licensing conditions in addition to those deemed necessary and required under the terms of Federal Power Act certain specific things.

Now --

Justice Hugo L. Black: Suppose they do not --

Mr. J. Lee Rankin: -- you want to know what they include in it.

Justice Hugo L. Black: -- suppose they do not do that -- Suppose they do not do that, is it valid?

Mr. J. Lee Rankin: Well --

Justice Hugo L. Black: Let's just assume for the moment.

Mr. J. Lee Rankin: I'm having --

Justice Hugo L. Black: -- without -- without imposing those conditions -- following those conditions.

Mr. J. Lee Rankin: I'm having difficulty with what conditions you are referring to, Mr. Justice.

Justice Hugo L. Black: Federal Power Commission shall include among the licensing condition.

Mr. J. Lee Rankin: Yes.

Now -- now, Section 10 --

Justice Hugo L. Black: I -- yes, suppose they did not include whatever conditions are required just to get Section 10.

Mr. J. Lee Rankin: Well --

Justice Hugo L. Black: Suppose they issued it without complying with those conditions, is it valid or invalid?

Mr. J. Lee Rankin: It would be invalid.

But Section 10 is the one that has the licensing conditions for the Federal Power Act, not the other ones.

Now, if you would turn with me to page 81 --

Justice Hugo L. Black: But Section -- but Section (e) says include among the licensing condition in addition to those being necessary, I assume that complies 10 (e), would it not?

Mr. J. Lee Rankin: No, not 4 (e) at all because that is the power to grant the license.

Section 10 --

Justice Hugo L. Black: I'm talking about 10.

Mr. J. Lee Rankin: Oh, I'm sorry.

Justice Hugo L. Black: I'm talking about 10.

Mr. J. Lee Rankin: Well, 10 doesn't have any -- any question of interfering whether inconsistent, Mr. Justice.

Justice Hugo L. Black: The one that says that in this make finding, suppose that apply.

Mr. J. Lee Rankin: Well, I -- I say --

Justice Hugo L. Black: Suppose that is the condition and they didn't comply with it, is it valid or invalid?

Mr. J. Lee Rankin: It would be invalid, Mr. Justice, but it does not apply.

That's my point.

Justice Hugo L. Black: That -- that's the conclusion in my mind.

Mr. J. Lee Rankin: Yes, because --

Justice Hugo L. Black: Suppose one --

Mr. J. Lee Rankin: -- what we try to --

Justice Hugo L. Black: -- suppose one disagreed with you on that, does that end the case?

Mr. J. Lee Rankin: Well, if the -- if that condition is properly required, we say that in -- the proper interpretation --

Justice Hugo L. Black: You say it doesn't.

Mr. J. Lee Rankin: It doesn't in this -- to this particular land anywhere.

Justice Hugo L. Black: That's right.

Mr. J. Lee Rankin: So that's still left but you may still disagree with that, then if you disagree with that, then I think that condition is no complied with and the decision below would be affirmed.

But I am saying to you, and I think that any examination will satisfy you that Section 4 is the power to issue a license.

And it says in that event, you will see -- you'll make the finding that it doesn't interfere or isn't inconsistent with.

And I am saying the Congress said you shall disregard all of that business and issue this license in so many words.

And that the authority and power and direction to issue the license is covered, so that 4 can have nothing to do with this matter.

Then you turn from the beginning there to the -- the conditions, licensing conditions, and that's Section 10 in the Federal Power Act.

It isn't 4 at all.

Section 10 provides certain conditions that they shall consider and see whether they apply and they shall apply according to the direction of the Congress where isn't inconsistent with the basic Act of 1957 such additional conditions in Section 10 as are applicable.

So I'm trying to present the argument and I think it's conclusive in regard to the validity of this license that 4 has no application whatsoever, that the Congress on its own decided that that -- that Section should not apply, that this particular license not only it was authorized but they were directed to grant it.

And then I say that once --

Justice Hugo L. Black: You mean that the only licensing conditions of the Federal Power Act are those that are claimed in 10 (e)?

Mr. J. Lee Rankin: Yes.

It's -- it's specially noted in the Act as conditions.

Justice Hugo L. Black: 10, Section 10.

Mr. J. Lee Rankin: Yes, Section 10.

Conditions of the licenses is the heading that's used on it.

Justice Hugo L. Black: That's Section 10.

Mr. J. Lee Rankin: Yes.

And Section 4 is the authority to make the license in the first place and that was granted and precluded by the other.

And then I just, if I may, have one more minute, Mr. Chief Justice and the Court, I would like to suggest that once you come to that conclusion, this Court has held that these -- these restraints on alienation, and that kind of general legislation has no effect on the sovereign, that the sovereign, once it decides to use a particular property.

Now, you may have troubled the question of what the Congress really knew and decided this.

But if it did decide, then those considerations have no bearing upon the sovereign's being able to decide the United States.

This public use is more important.

Now, if they do decide that and it's already been dedicated, of course, they have to compensate for the prior use that they have dedicated to before.

But it doesn't keep the sovereign from taking it, otherwise, we couldn't have these public properties developed.