Federal Power Commission v. Tuscarora Indian Nation

PETITIONER: Federal Power Commission
RESPONDENT: Tuscarora Indian Nation
LOCATION: Approximately half-way between Santa Marta, Colombia and Miami. Florida (by water)

DOCKET NO.: 63
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 362 US 99 (1960)
ARGUED: Dec 07, 1959
DECIDED: Mar 07, 1960

Facts of the case

Question

Media for Federal Power Commission v. Tuscarora Indian Nation

Audio Transcription for Oral Argument - December 07, 1959 (Part 1) in Federal Power Commission v. Tuscarora Indian Nation

Audio Transcription for Oral Argument - December 07, 1959 (Part 2) in Federal Power Commission v. Tuscarora Indian Nation

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?

Charles E. Whittaker:

(Inaudible)

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.

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.

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 --

Felix Frankfurter:

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

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.

Felix Frankfurter:

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

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 --

Felix Frankfurter:

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

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.