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Compiled and edited by Charles J. Kappler. Washington : Government Printing Office, 1941.
Appearances: George L. Grobe, United States Attorney, Attorney for Complainant
(Aubrey Lawrence and C.C. Daniels, Special Assistants to the Attorney General, of Counsel.)
Nelson T. Barrett, Buffalo, New York, Attorney for the Defendant.
BURKE, District Judge:
The defendant moves to dismiss the bill herein on the ground that it does not state facts sufficient to constitute a cause of action and on the ground of lack of jurisdiction. The action is brought by the United States of America for and on its own behalf and for and on behalf and as trustee and guardian of the Tonawanda band of Seneca Nation of Indians to set aside a deed to the defendant pursuant to a sale ordered by the Supreme Court of the State of New York in partition proceedings with reference to certain property upon the Tonawanda Reservation. In addition to this specific purpose the action is brought by the United States to maintain its obligations to the Tonawanda Tribe of Indians as guardian under treaties and to prevent the exercise of jurisdiction over Indian tribal affairs by the State of New York without the request of the Indian tribe involved or the acquiescence or consent of the United States.
The facts alleged in the complaint, in so far as they are material to this motion, are as follows:
The Tonawanda Tribe of Indians was a part of the Seneca Nation which belonged to the Iroquois Confederacy and is a separate and distinct tribe of the Seneca Nation not bound by or subject to the charter of the Seneca Nation adopted by the Alleghany, Cattaraugus and Oil Springs bands or tribes, the Tonawanda band acting under and being governed by its separate tribal laws and customs. The Tonawanda band has maintained its own tribal relations and has kept tribal affairs and property separate and distinct from any other tribe or band. The several nations of the Iroquois Confederacy and its constituent tribes, including the Tonawanda band, hold their tribal lands in common and are prohibited from transferring or alienating said lands without the consent of the United States and the United States has not at any time consented to alienation of lands within the Tonawanda reservation. The lands described in the
complaint over which the dispute arose are within the boundaries of the Tonawanda reservation. Anna Moses, a member of the Tonawanda band was in possession of said lands at the time of her death which occurred during the month of June, 1933. She died intestate. Thereafter a "Consolation Feast" or "Ten day Feast" was held according to the custom and usage of the Tonawanda Indians, at which the right of possession and use of the lands were duly determined, in accordance with the usage and custom of the Tonawanda band, to vest in Gertrude Blackchief, a Tonawanda Indian, and other Tonawanda Indians. Thereafter Gertrude Blackchief filed with the Chiefs' Council of the Tonawanda band, in accordance with the custom and usage of the tribe, a petition for the enforcement of the determination of the "Consolation Feast" and for the purpose of evicting Ira Charles and the defendant Hattie Charles, who were adverse claimants to the said land and who claimed heirship which entitled them to the said lands. Thereafter, and about March 17, 1934, before the Chiefs' Council had acted or had had an opportunity to act on the petition of Gertrude Blackchief, a proceeding was commenced in the Supreme Court of the State of New York, County of Erie, in the name of the People of the State of New York on the relation of Ira Charles and Hattie Charles, against Gertrude Blackchief, the Chiefs' Council of the Tonawanda band and others, for a writ of prohibition and injunction to restrain the said Gertrude Blackchief from instituting any proceedings in or before the Chiefs' Council of the Tonawanda band and to restrain the Chiefs' Council from entertaining any action or proceeding or making any order or decree relating to the said property. On or about May 7th, 1934 the Supreme Court of the State of New York, County of Erie, issued an order perpetually enjoining Gertrude Blackchief from instituting or prosecuting any proceeding before the Chiefs' Council and restraining the Chiefs' Council from entertaining, determining, or enforcing any proceedings in relation to the said property. On or about March 15, 1934, an action was commenced in the Supreme Court of the State of New York, County of Genesee, by Hattie Charles and others against Gertrude Blackchief and others for the purpose of enforcing their alleged claims to the said property by the application of the Inheritance Laws of the State of New York. In this action they applied for a partition of the said lands and the said partition proceeding culminated in a judical sale by the referee appointed by the Supreme Court in said action. The referee was directed by the court to sell the property at public auction to the highest bidder. The sale took place on September 5, 1936, and the property was purchased at said sale by the defendant Hattie Charles. At the time the property was offered for sale by the referee it was stated by the attorney for the defendant in the partition action, with the acquiescence of the referee, that no one but the members of the Tonawanda band would be permitted to bid although there was no such provision in the order of sale and this fact was at the time called to the referee's attention. The sale was duly confirmed and a deed of conveyance was executed by the referee and delivered to the defendant Hattie Charles.
The allegations of the bill establish that the United States has a real and direct interest in the matter in controversy. The Tonawanda band, being a distinct tribe, is under the guardianship of the United States and thereby entitled to its aid and protection. The custom and usage of the Tonawanda band in establishing descent of real property on the reservation has been overridden by the State Courts and in lieu thereof there has been substituted the laws of descent of the State of New York, all without the consent of the Indians or the United States. This gives rise to a duty on the part of the government to its wards to protect them in their property rights and an independent duty of carrying out a well defined governmental policy in preserving intact the Indian reservation with the management of internal affairs within the hands of the Indians. For such purpose the government can maintain an action in its own courts. Heckman vs. United States, 224 U.S., 413, 437; United States vs. Boylan, 265 Fed. 165.
The right of a tribe to govern itself in accord with tribal laws and customs without interference or dictation from the State courts has been upheld by the highest court of New York State. Mulkins vs. Snow, 232 N.Y., 47; Matter of Patterson vs. Seneca Nation, 245 N.Y., 440.
Accepting without derogation the allegations of the bill, Gertrude Blackchief was determined to be entitled to the possession and use of the tribal lands in question in accordance with the custom and usage of the tribe at the "Consolation Feast" and in
further accord with this custom and usage she duly petitioned the Chiefs' Council of the Tonawanda Band for enforcement of this determination. There was, therefore, an established tribunal in accordance with the custom and usage of the tribe for determining the right to possession of tribal lands. Interference with its procedure by injunction of the State Courts was an unwarranted and unlawful disturbance of the right of the Indians to the free use and enjoyment of its tribal property and a violation of treaties guaranteeing these rights.
The reservation lands are held in common by the tribe although individual members of the tribe may be in possession of a particular tract, and such possession is recognized by the tribe. But the lands are inalienable except with the concurrence and consent of the United States. An individual member of the tribe cannot convey title to any particular tract of reservation lands. U.S. vs. Boylan (Supra). The judicial sale by the referee and the referee's deed in the partition action ran counter to that principle and purported to convey title to reservation lands in fee simple. This is repugnant to governmental policy in regard to Indian reservations. If such sales are countenanced by the government there is danger that in time the reservation will cease to exist as such. Congress has adopted a policy of continuing the tribal relations of Indians and their rights as distinct political communities, apart from State interference. Congress alone may vary this policy. U.S. vs. Boylan (Supra). Until such time as Congress sees fit to change it, any interference with it either by State legislation or by extension of the jurisdiction of the State Courts over internal affairs of Indians on the reservation is an unlawful interference with a governmental function. The complaint states a cause of action cognizable in equity.1
The motion should be denied.
HAROLD P. BURKE,
United States District Judge.
Dated: April 19, 1938.
The formation of the policy of the United States in dealing with the NewYork Indians is particularly within the province of the Department of the Interior. The situation which has prevailed in relation to the New York Indians as well as certain legal considerations naturally condition any policy which may be formed by the United States. This memorandum is for the purpose of indicating the more important phases of the situation which exists and pointing out the legal propositions which should be taken into account.
It is arguable whether or not the United States has exclusive jurisdiction over the New York Indians. A careful consideration of the question shows the Federal Government to have exclusive jurisdiction. However this may be, "it is settled beyond per-adventure of a doubt that the federal government has paramount authority over" the New York Indians, (Rice v. Maybee, 2 Fed. Supp. 669). The least that can be said of federal jurisdiction was stated by the Court of Appeals in People ex rel Cusick v. Daly,(1914), 212 N. Y. 183, where the court below was reversed for convicting a Tuscarora Indian of assault with intent to kill, for the reason that the federal courts had exclusive jurisdiction of the crime by virtue of §9, Act of 1885 (23 Stat., 385; U. S. Crim. Code,§328). The Court said at page 196:
Even if we assume that, in the absence of Federal legislation, the state has the most ample power to legislate for the Indians within its borders, there seems to be no escape. from the conclusion [pp 197] that when Congress does act the power of the state must. yield to the paramount authority of the Federal government.
No doubt can be entertained about the applicability to the New York Indians of all of the laws of Congress relating to Indians in general. The Court in People ex rel. Cusick v. Daly, supra, applied the "Seven Major Crimes Act" which was of a general nature. Similar instances could be multiplied.
In addition to the fact that all general acts of Congress relative to Indians apply to New York automatically, there is the further fact that treaties guarantee that the United States will not "disturb the Six Nations in the free use and enjoyment" of their tribal lands, (7 Stat. 44). Treaties, in legal effect, are on a par with Acts of Congress. The Supreme Court in The New York Indians, 5 Wall. 761, (1866), has construed the treaties with the New York Indians to preclude action by the state which would disturb them in the peaceful possession of their reservations. This right of undisturbed use of the reservations is the right of the tribe as a "separate political community" dependent on the United States alone.
The fundamental propositions of law which affect the New York Indian situation are (1) the prevailing authority of Congress (at least), (2) the applicability of all general Acts of Congress, and (3) the right of the tribes guaranteed by treaty to the undisturbed occupancy of their reservations as political communities. For the most part,it is a question of policy as to whether or not and to what extent the provisions of the general laws are to be enforced or the treaty rights of the Indians protected.
Except for sporadic activity, the policy of the United States in the past has been passive. Inaction has been both cause and result of the conflict as to whether the United States or the State of New York is guardian of the New York Indians and has jurisdiction of their affairs. How this conflict in jurisdiction arose is a subject for the historian. Suffice to say, it has enveloped the administration of the affairs of these Indians in a fog of doubt, uncertainty and lost responsibility with an inevitable injuryto the rights of the Indians. The confusion, however, has not been an unalloyed evil.
The passive policy of the Federal government, prior to the present administration, is perhaps best illustrated by the leasing of lands for villages within the Allegany Indian Reservation. The restriction imposed by Congress on the leasing of reservation lands was a dead letter with the Indian Once as far as the New York Indians were concerned. The New York Legislature, in order to protect the state's preemption right to the Indian's lands, had imposed restrictions at an early date or purchasing or leasing Indian lands. These restrictions, coupled with the doubt as to whether the Federal restrictions applied, were sufficient to render the Indian Office inactive and, as a consequence, considerable settlements were made on the Allegany Indian Reservation by white persons under no better authority than leases for nominal rentalsmade under the sanction of the state.
These leases were made in violation of the limitations imposed by Congress on leasing and sale of Indian lands in general and, when tested in the state courts, were declared void. The New York Legislature requested .Congress to ratify these leases. Accordingly, Congress ratified these leases for a specified time, provided for the laying out of certain villages, and prescribed the method and requirements for renewing leases for periods of twelve years (Act of February 19, 1875).
No provision was made for government approval of the terms and conditions of new or renewed leases. In 1890, Congress responded to the pressure of the lessees in these villages and permitted renewal of leases for a term of ninety-nine, instead of twelve, years, (Act of September 30, 1890). The literally wholesale renewal of leases for terms of ninety-nine years at nominal rentals demonstrated either the generosity, incompetence or corruption of the Seneca Council which had charge of the matter.
Complaints were increasing to the effect that the Councillors were acting in their own interests and misusing tribal funds arising from rentals and the Act of February 8, 1901, was passed by Congress which provided that rentals were to be collected by the United States Indian agent, who was to pay to the Council two thousand five hundred dollars and distribute the balance to the members of the tribe along with the federal annuities.
The act of 1875 appears to be predicated on the proposition that the Seneca Nation through its Councillors was competent to manage their own affairs in relation to leasing and that the United States owed no duty to the Indians other than permitting them to lease their lands. The act was for the white intruders and not for the benefit of the Indians. The act of 1901 commits the government to an active supervision over the collection of the rentals. The same act, by implication, charges the Council with malversation of rentals and provides for the distribution of the same to the members of the tribe, except for two thousand five hundred dollars for the Council. The United States has thus been committed to an active guardianship over the Seneca Nation at least in relation to the collection of rentals and distribution of the same, which looks to the interests of the Tribe.
In relation to the Salamanca leases, the United States has continued its passive policy as much as the acts permit. The United States is chargeable with collecting the rentals and, by implication, of cancelling leases which have been breached. The McCarl audit of the books of the Seneca Nation (Senate Doc. 253, 71st Cong., 3d Sess., and Sen. Doc. 87, 72d Cong. 1st Sess.) reveal the general passiveness of the government in the In matter—The Indian agent serving as little more than bookkeeper. Through the hesitant action by Congress and the lack of action by the administrative departments, the Indians get only a fraction of what they are entitled to from their leases.
Another instance of the bad effect of the confusion is the Tonawanda Gypsum. George Watson, an attorney, was employed by the Tonawanda Band of Indians at a compensation of $100,000 to defend a suit brought on behalf of certain members of the tribe for moneys paid or to be paid the tribe for the mining of gypsum under the surfaceof tribal lands occupied by the individual members. United States Code, Title 25, 881,required the approval of the Secretary of the Interior of the contract of Watson with the Tribe. The contract was forwarded to the Secretary of the Interior for approval, but the same was returned without approval with the following statement:
*** It appears *** that the State is the guardian of the lands of the Tonawanda Indians, and the State legislature has passed laws for their government ***
In view of the fact that this case does not involve a federal question and the Indian lands are held in trust for them by the State of New York it is believed that your contract with the tribe is sufficient to enable you to proceed. If an approval of your contract is necessary it must needs be taken up with the proper New York State officials. ***
Watson and Darch defended the action against the tribe which defense involved appeals, (Matter of Parker, (1929), 227 A. D. 107). When it came to enforcing the attorneys contract for compensation of one hundred thousand dollars, the Supreme Court of the State of New York, in Matter of Darch, (1933), 145 Misc. 836, declared the contract void as not having the approval of the Secretary of the Interior as required by U. S. Code, Title 25, § 81. Though the court disallowed compensation on any basis, the tribe gave Watson and Darch about $20,000.
Another instance may be found of the bad effect of the passive policy of the Government in the application of the inheritance laws of the state to the reservations. At various times, questions of descent and distribution of Indian land has come into state courts. In some instances the courts have ruled that the Indian customs applied.
In other instances they have ruled that the state law applied. With the Indians, it was pure speculation as to how the land would be allocated. In any event, the expensesof litigation, which in some instances almost consumed the estate, were borne by the Indians.
Instances could be multiplied where a particular course of action has been taken on the assumption that the state had jurisdiction of Indian affairs, only to find that such course of action was illegal. The situation inevitably results in the injury of either the Indians or the persons dealing with them, and more often than not, to both.
The passive policy of the United States seems to have been predicated, for the most part, on the erroneous assumption that, if the Federal Government pursued an active policy in regard to the New York Indians, the State of New York would withdraw such aid as it gives the Indians in the way of education, welfare, road maintenance, and annuities. For the most part, the state is bound to pay the annuities. The roads are maintained, not for the Indians, but notwithstanding the Indians.
Such aid as the State renders the various tribes in the way of education and social welfare is not to be belittled, though it has more often than not been overemphasized. There is little reason to support the assumption that the state would withdraw its aid to the Indians in the event the United States pursued an active policy in relation to conserving the rights of the Indians and protecting their interests.
The government owes it to itself as well as to the Indians and the State of New York to vigorously enforce all federal laws in relation to Indians and thus prevent situations from repeatedly arising in relation to the New York Indians which invariably cause confusion and quite often injury to every one involved.
With the appointment of John Collier as Commissioner of Indian Affairs, there promised to be a permanent end to the passive policy of the United States. The Wheeler-Howard Act provided for the fostering of the Indian Tribes, as such. In a speech on September 4, 1934 to the New York Indians explaining the provisions of the Act, Mr. Collier announced that "a complete reversal of Federal Indian policy has taken place in the last year." He further stated:
I believe that the Federal policy towards the New York Indians should become exactly what that policy is towards the Blackfeet, the Sioux, the Papagos, the Pueblos or the Navajos.
The United States appears to have thrust aside its passive policy toward the New York Indians and have taken definite action looking to the protection of the rights and consideration of the interests of the various tribes as well as rendering certain aid to them. Under the W. P. A., certain lands on the St. Regis Reservation are being recovered by drainage. An action, United States v. Charles, was instituted in the District Court to cancel a state court proceeding partitioning forty-five acres of the Tonawanda Reservation. This action is being prosecuted on the three-fold theory that the partition proceedings, referee's sale, and injunction restraining the council from determining descent and devolution of reservation lands are (1) a violation of the treaty rights of the tribe to the peaceful possession of the reservation, (2) an alienation of reservation lands restricted by federal law, and (3) an undue interference with a function of the United States.
On the Onondaga Reservation, the United States prosecuted recently under the "Seven Major Crimes Act," Levi Frost, an Indian, for murder on the reservation, notwithstanding the mistaken claim of the state attorney of the jurisdiction of the state. Another People ex rel. Cusick v. Daly was thus avoided.
Highly significant of the active policy of the government toward the New York Indians is the attitude of the government in relation to the leasing situation on the Allegany Reservation. The original act of 1875 was quite reasonable under the circumstances. The act of 1890 extending the term of renewal leases from twelve to ninety-nine years has worked a great injury to the interests of the tribe. The authority granted to the Council to make leases on such terms and conditions as they saw fit, without approval by the Department of the Interior, was so abused by the Council, that any policy looking to the interests of the tribe would require that further leases be subjected to the approval of the government. The administration accordingly recommended H. R. 6248 (S. 2122) which limited the term of renewal leases, provided that rentals be based on the appraised value of the property, and subjected the generosity of the sixteen Councillors with tribal property to the veto of the Department of the Interior. The fact that Representative Reed, of Salamanca, New York, managed to smother the bill in committee is to be regretted, but cannot be taken, to indicate that Congress endorses the resumption of a passive policy.
There are several matters heretofore investigated and reported on which are suggested for consideration, viz:
(a) Condemnation by New York of part of the Onondaga Reservation for highway and flood control;
(b) Illegal "renewal" of leases in Salamanca on the Allegany Reservation;
(c) Illegal taxation and sale of property occupied by an Indian in Salamanca;
(d) Illegal taxation of lands on the Cattaraugus Reservation occupied by a member of the tribe;
(e) Breach of conditions of lease by Snyder Packing Company for lands on Cattaraugus Reservation;
(f) Illegal mining of gypsum on Tonawanda Reservation.
Since detailed memorandums have been sent the Department covering each of these questions, the following treatment is brief.
In a memorandum to the Attorney General, dated January 21, 1935, I recommended that suit be brought in the federal court for the purpose of restraining and preventing condemnation and appropriation of certain lands on the Onondaga Indian Reservation by the state of New York for highway and flood control purposes under authority of acts of the legislature of the state.
Thereafter another memorandum was forwarded the Attorney General, dated May 9, 1935, on the same subject, which recommended suit in the Supreme Court of the United States in the name of the United States of America against the State of New York on the grounds set forth in the form of complaint attached to said memorandum.
A conference was thereafter held at the Department of Justice in Washington, between Mr. Blair, Assistant Attorney General in charge of the Public Land Division, and Mr. Collett and Mr. Lawrence and the undersigned, all of the Division. It was determined at the conference that the suit recommended in my memorandum should be instituted, and I was directed to confer with Solicitor General Reed with relation thereto, which I did.
For reasons of policy, at that time the suit was not brought. The state, at that time, was taking no immediate steps to take over the land condemned or to evict therefrom the Indians residing on the reservation. Therefore the unpleasant task of bringing suit against the state was not imperative.
Since then, however, other steps have been taken looking to the building of dam and highway on the land and the flooding of the homes of members of the Nation or tribe of Indians residing on the Reservation, by construction of the said highway and dam for flood control.
The undersigned attended a meeting at Syracuse at which Army Engineers were hearing discussion of the matter, to be followed with report by the Engineers assigned to flood control. Memorandum dated August 14, 1936, in relation thereto was sent you.
The undersigned respectfully recommends that suit be brought in the Supreme Court of the United States in the name of the United States of America against the State of New York on the grounds set forth in the form of complaint attached to memorandum dated May 9, 1935, with such changes as may be deemed advisable.
By the institution and prosecution of such a suit, decision of the highest court will be secured that will settle many questions of vital importance in dealing with the New York Indians and their problems.
It was through the passive policy of the United States that the city of Salamanca sprung up on the Allegany Reservation along with several other villages. A state court decision made it clear that these "lessees" were trespassers. It became almost mandatory for the government to either ratify the "leases" or remove the intruders. At the request of the State, Congress legalized the "leases" and provided for renewal leases but did little more, for the Indian Council was subjected to no supervision.
Since the legalizing act of 1875, the lessees have been strongly opposed to any change whatsoever in the passive policy of the government, with the exception of the act of 1890 which extended the authority of the Council to make renewals for ninety-nine years and the time when Congressman Vreeland, a resident of Salamanca, proposed to compel the Indians to virtually give the lands to the lessees. As a matter of fact, it is hard to conceive of any change in the situation at Salamanca, other than giving the lands to the lessees, which could improve the bargain obtained by the lessees at the expense of the tribe. The lessees also did not oppose the act of 1901 which provided a bookkeeper for the tribe and lessees and limited the authority of the Council in squandering more than twenty-five hundred dollars of the rentals.
The government neglects its responsibility to the tribe when it continues to permit the leasing of city lots for the wholly inadequate rentals and when illegal "renewals" are allowed to go unchallenged and leases otherwise breached.
The measure advocated by the administration before the last Congress was for the purpose of protecting the lessees as well as to subject the Council (for the benefit of the tribe) to a much needed supervision in making leases.
As a result of the dilatory tactics adopted by those who felt that the Federal Government should stand by and permit its wards to be exploited, it was recommended that action be brought by the United States to cancel Lease 93-A. Reference is made to memorandum dated April 22, 1938, to which was attached a tentative form of complaint for the consideration of the Department.
The people of Salamanca would be convinced by such a suit that the Federal Government is in earnest in its purpose to act in the interests of the tribe and at the same time desires that the equity of lease holders who have placed improvements on the land be protected. No doubt, much of the opposition to a similar bill would disappear if the government ended for all times its passive policy—a policy upon which the interests of the lessees have thrived for so many years at the expense of the tribe.
Aside from the proposed bill relative to leasing, if the government is to pursue an active policy and meet its esponsibilities toward the tribe, the suit should be instituted.
Two acts of Congress prompt the government to bring action to restrain the assessment of taxes on the lot occupied by Leona Kenjockety, an Indian possessing the land under original right of occupancy. The act of 1875 directing Salamanca to be laid out specifically exempts Indians from taxation. There is also the federal limitation on
alienation of Indian lands which appears to have been violated by the tax deed to the City of Salamanca.
This matter was investigated in 1925-7 and the United States Attorney directed to institute suit to enjoin the collection of taxes from the same lot held by the mother of Leona Kenjockety. It was represented by the City Attorney of Salamanca that the assessment was made for sewerage which was to be shut off and backed up against the homes of the Indians if the government brought suit. This threat was sufficient to render the government inactive in relation to the rights of the Indians—a threat which the city could not enforce.
This matter clearly demands action on the part of the Government.
It is recommended that suit be brought in the United States District Court for the Western District of New York in the name of the United States of America against the County of Erie to enjoin the assessment, levy or collection of taxes against the estate of George A. Jimerson, his family,. or the lot or parcel of land on the Cattaraugus Indian Reservation by his family occupied.
The basis on which the said County has taxed Jimerson and the lot occupied by him and his family, is that a Seneca Indian by the name of Charles Dennis leased some fifteen acres of land on the Cattaraugus Indian Reservation allocated to and occupied by said Dennis as a member of the Seneca Nation, to the Erie Preserving Corporation for an annual rental of thirty dollars per annum. The lease was approved by act of Congress. The Erie Preserving Corporation built a factory and houses for their working force on the land leased. The Jimerson lot and house came into his possession through the Erie Preserving Corporation and he used the same as a home until his death, since when it has been used by his family.
It may be pointed out that the question of taxing this lot and house has been looked into before and the conclusion reached that the same were not exempt from taxation by virtue of state law.
A judgment is needed in this instance, not only to protect an Indian ward from illegal taxation, but to have reiterated by the courts the proposition that the reservation lands are exempt from state taxation not by reason of state xemptions but by reason of federal law.
In memorandum dated July 9, 1935, report was made on the various breaches of the so-called Dennis lease which is claimed by the Snider Packing Company. Recommendation was made to attempt to negotiate a revised lease to the better advantageof the tribe. This failed and recommendation was made in memorandum dated April 9, 1937, to cancel the lease.
The Snider Packing Company, so I am informed, has been recently dismantling the plant and removing the equipment. It is possible that fixtures attached to the soil are being removed to the mjury of the tribe. This matter should be checked into and prompt action taken accordingly. In any event, the lease should be cancelled.
The gypsum contracts set forth and described in memorandum dated April 14, 1938, relative to the appropriation of gypsum from the Tonawanda Indian Reservation, were, in my judgment, illegal and the compensation therein provided inadequate and unjust to the Tonawanda Indian Band or Tribe and should be cancelled and those who have appropriated the gypsum be made to pay the reasonable value thereof.
The policy of protecting the Indians in their property and rights should be made perfectly clear so that which belongs to tribal Indians will be as safe from exploitation as any other property, the protection of which the Federal government is charged with.
It is my opinion that even if the terms of the lease equitable, the lease should be cancelled and a new lease made under the provisions of the United States Code, Title 25, §397.
As hereinbefore mentioned, it has generally been intimated or felt that if the Federal Government pursued an active policy in protecting the rights of its Indian wards, that the State of New York would "sit down" on its work being done for the benefit of the Indians. Such is not necessarily the case. The cooperation between the State and Federal Governments is not merely a possibility but the thing which is most logical and probable. In this connection, the protection of the Poosepatuck and Shinnecock Indians illustrates the cooperation of state and federal governments.
More than one act of Congress is predicated on the cooperation of state and federal agencies for the benefit of the Indians. Cooperation implies however, action and the United States can hardly be said to cooperate when it allows a confused and bewildering situation to continue which is in large measure due to its own inaction.
Respectfully submitted.
C. C. DANIELS,
Special Assistant to The Attorney General.
CD:JG
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