Appeal from an order of the United States District for the Northern District of New York, Edmund Port, J., holding the Counties of Oneida and Madison, New York liable to the Oneida Indian Nation under the Trade and Intercourse Act of 1793, awarding the Oneida Indian nation $16,694 against the two Counties, and finding that the State of New York must indemnify the Counties for all damages assessed against them. Affirmed and remanded for a recalculation of damages. Judge Meskill dissents in a separate opinion.
Lumbard, Mansfield and Meskill, Circuit Judges. Meskill, Circuit Judge, dissenting.
All three parties appeal from the judgment of the Northern District of New York, Edmund J. Port, Judge. The defendants, Counties of Oneida and Madison, New York, appeal from Judge Port's decision holding them liable for wrongful possession of plaintiffs' land. 434 F. Supp. 527 (N.D.N.Y. 1977). Plaintiffs Oneida Indian Nation of New York State, Oneida Indian Nation of Wisconsin, and Oneida of the Thames Band Council (collectively the "Oneidas"), as well as the Counties appeal from Judge Port's decision of October 5, 1981, on damages. Finally, third party defendant State of New York appeals from Judge Port's ruling of May 5, 1982, that it must indemnify the Counties for any damages assessed. We affirm each of Judge Port's three rulings, but remand for further proceedings on the calculation of damages.
The three plaintiffs in this case are the descendants of the Oneida Indian Nation which inhabited central New York for many years until shortly after the Revolutionary War. The Oneidas were part of the Six Nations or Iroquois, the most powerful tribe in the Northeast.*fn1 Their land extended from the Pennsylvania border north to the St. Lawrence River, from the shores of Lake Ontario to the western foothills of the Adirondack Mountains.*fn2 During the Revolutionary War, the Oneidas were active allies of the colonists against the British. Their support prevented the Iroquois from taking a unified stand against the colonists -- an important achievement for the confederated states.
After the War, the United States rewarded the Oneidas in the Treaty of Fort Stanwix, 7 Stat. 15 (October 22, 1784), by securing them "in the possession of the lands on which they are settled." Later, two additional treaties further secured the Oneidas in the possession of their land. See Treaty at Fort Harmar, 7 Stat. 33 (January 9, 1789); Treaty with Six Nations, 7 Stat. 44 (November 11, 1794). The settlers of the new nation, however, in their constant fever to expand soon invaded the Indians' territory. Thus, under increasing pressure from its white residents, the State of New York in 1788 purported to purchase most of the Oneidas' land -- nearly five million acres.*fn3 The Oneidas retained about 300,000 acres near Oneida Lake.
As the pressure of new settlements everywhere continued to increase, the Indians became restive. In recognition of the frequently inequitable land purchases and to prevent Indian retaliation, the newly created federal government took an active role in protecting and securing the Indians in the possession of their land. President Washington and his Secretary of War, Henry Knox, encouraged Congress to enact legislation which recognized "that the Indian tribes possess the right of the soil of all lands within their limits, respectively, and that they are not to be divested thereof, but in consequence of fair and bonafide purchases, made under the authority, or with the express approbation, of the United States." American State Papers, I Indian Affairs 53 (1834). Accordingly, Congress passed the Trade and Intercourse Act of 1790, Ch. 33, 1 Stat. 137 (hereinafter "1790 Act") which provided:
that no person shall be permitted to carry on any trade or intercourse with the Indian tribes, without a [federal] license . . . [and] that no sale of land made by Indians . . . shall be valid to any person or persons, or to any state . . . unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.
The 1790 Act, however, was primarily declarative. It provided few enforcement mechanisms for protecting federal or tribal interest. Because it did little to stem the increasing illegal occupation of Indian lands, Congress in 1793 enacted a second Trade and Intercourse Act that added criminal penalties for illegally occupying Indian lands and authorized the President to remove trespassers from the land. Trade and Intercourse Act of 1793, Ch. 19, § 8, 1 Stat. 329, 330-31 (hereinafter "1793 Act"). The 1793 Act also provided that "informants" could enforce the section imposing fines on violators and collect one-half of the fine assessed.
Despite these statutory prohibitions, the State of New York attempted in 1795 to obtain Indian lands without the requisite federal approval. Throughout the ensuing months, the federal authorities repeatedly urged New York State Governor Clinton and his successor Governor John Jay to seek and secure the appointment of federal commissioners before the State negotiated any purchase of Indian lands. See 434 F. Supp. at 534-35. Despite this, the State sought an agreement with the Oneidas during the summer of 1795, over the express remonstrance of the federal authorities. See id. at 534. These negotiations led to the sale on September 15, 1795, in Albany, in contravention of the 1793 Act, of approximately 100,000 acres of the Oneidas' reservation. As the district court noted, however, the circumstances surrounding the Oneidas' assent to the purchase were fraught with irregularities. Id. 535. First, the Oneidas virtually never signed treaties outside their aboriginal land, yet the treaty was signed in Albany outside their aboriginal land boundaries. Second, normally the Oneidas' treaties were agreed to by unanimous consensus of the tribe; here, however, powers of attorney were given to individuals, none of whom were chiefs, to negotiate the transaction. Third, the State purchased the land for approximately fifty cents per acre. Within two years, the State in turn sold much of the land to white settlers for about $3.53 per acre.
Social and economic forces, including poverty, famine, alcoholism, and pressures on the Oneidas to move West resulted in the alienation of virtually all of their remaining New York acreage. Between 1795 and 1846, twenty-five more treaties between the State and the Oneidas were consummated, enabling the State to divest the Oneidas of all but a few hundred acres. Only two of these treaties (concerning land not here in question) were made with federal supervision and approval.*fn5 Furthermore, the State passed a statute that divided up the tribal landholdings and gave individual Indians a right to sell.
New York's abuse of the Oneidas was not accomplished without protest. Shortly after the 1784, 1787, and 1788 land purchases, the Oneidas contacted the federal government in protest over what they perceived as improper, deceitful, and overreaching conduct by the State. See American State Papers, I Indian Affairs 139 (1834). Their protest continued, especially between 1840 and 1875, and between 1909 and 1965. See 434 F. Supp. at 536.
Finally, in 1970 the Oneidas brought suit in the Northern District of New York claiming that the 1795 cession of land violated the Nonintercourse Act, and that the land was unconscionably purchased for an inadequate price. The complaint sought damages for the fair rental value of 871.92 acres which were part of the 1795 land transfer, for the period from January 1, 1968 to December 31, 1969. The district court on November 4, 1971, dismissed the complaint ruling that it asserted only a state law claim. Our affirmance over one judge's dissent, 464 F.2d 916, 918 (2d Cir.1972), was unanimously reversed by the Supreme Court which held:
Tribal rights [are] entitled to the protection of federal law, and with respect to Indian title based on aboriginal possession, the 'power of Congress . . . is supreme. '
The rudimentary propositions that Indian title is a matter of federal law and can be extinguished only with federal consent apply in all of the States, including the original 13.
414 U.S. 661, 669-70, 94 S. Ct. 772, 39 L. Ed. 2d 73 (1974) (footnotes and citation omitted).
On remand, Judge Port trifurcated the proceedings, dividing the case into separate trials on the issues of liability, damages, and indemnity. First, Judge Port held that the State's 1795 purchase violated the 1793 Act. He later assessed the Counties $16,694 in damages plus interest. In addition, Judge Port over the State's principal objection on eleventh amendment grounds held that the State must indemnify the Counties for all damages assessed.
Plaintiffs claim two bases for a finding of liability in this case: federal common law and the 1793 Nonintercourse Act.*fn6
The Counties assert that the Oneidas had no federal common law rights at the time of the 1795 purchase, and alternatively that whatever common law action there may have been was preempted by the Trade and Intercourse Act. We reject both contentions.
The interrelationship of the Indian nations and the United States -- including its constituent states -- early in the new nation's history was recognized as involving uniquely federal interests. The Constitution reflected this concern by delegating to the federal government the authority to "regulate Commerce with Foreign Nations, and among the several states, and with the Indian Tribes." U.S. Const. art. I, § 8, cl. 3. This federal interest in regulating Indian affairs was enunciated not only in treaties, see, e.g., Treaty of Fort Stanwix, supra, and statutes, see, e.g., Trade and Intercourse Act of 1790, supra, but also in the recognition by the courts of the availability of a federal common law action to vindicate Indian land claims. The Supreme Court referred to this proposition in Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 5 L. Ed. 681 (1823), one of its earliest cases involving the transfer of Indian land. Although the case involved a title dispute between non-Indians, the Court subsequently interpreted the case to stand for the general principle "that an action in ejectment could be maintained on an Indian right to occupancy and use . . . . This is the result of the decision in Johnson v. M'Intosh." Marsh v. Brooks, 49 U.S. (8 How.) 223, 232 (1850). Furthermore, the Court repeatedly has emphasized that this Indian right to occupancy and use is a federal right. See, e.g., Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667, 670, 94 S. Ct. 772, 39 L. Ed. 2d 73 (1974) (it is a "rudimentary proposition" that after the Constitution was "adopted, these tribal rights to Indian lands became the exclusive province of the federal law."); see also Mohegan Tribe v. Connecticut, 638 F.2d 612, 626 (2d Cir.), cert. denied, 452 U.S. 968, 69 L. Ed. 2d 981, 101 S. Ct. 3124 (1981) ("the extinguishment of all Indian title was meant to be a matter of federal concern"). In the prior appeal in this case, the Supreme Court alluded to the existence of a common law action on several occasions in mandating the exercise of federal jurisdiction. "[A] tribal right of occupancy, to be protected, need not be 'based upon a treaty, statute, or other formal government action. ' . . . nevertheless [it is] entitled to the protection of federal law . . . ." Oneida Indian Nation, 414 U.S. at 669, quoting U.S. v. Santa Fe Pacific R.R. Co., 314 U.S. 339, 347, 86 L. Ed. 260, 62 S. Ct. 248 (1941). "Absent federal statutory guidance, the governing rule of decision would be fashioned by the federal court in the mode of the common law." Id. 414 U.S. at 674. We conclude that the Oneidas may assert a federal common law action to recover damages for the Counties' wrongful possession of their land.
The Counties, however, argue that this federal common law action was preempted by the enactment of the Trade and Intercourse Act. They cite Milwaukee v. Illinois, 451 U.S. 304, 68 L. Ed. 2d 114, 101 S. Ct. 1784 (1981), in which the Supreme Court held that a subsequently enacted federal statute preempted the federal common law cause of action it previously had upheld in Illinois v. Milwaukee, 406 U.S. 91, 31 L. Ed. 2d 712, 92 S. Ct. 1385 (1972). In Illinois v. Milwaukee the Supreme Court recognized the existence of a federal common law action for abatement of a public nuisance in polluted interstate waters. Nine years later, however, the Court found in Milwaukee v. Illinois that such an action could no longer be maintained. In the intervening years, Congress had passed the Federal Water Pollution Control Act Amendments of 1972, Pub. L. 92-500, 86 Stat. 816 (hereinafter "FWPCA"). Under these lengthy amendments and their appurtenant regulations, it is illegal for anyone to discharge pollutants into American waters without a permit. 33 U.S.C. §§ 1311, 1342 (1976 ed. & Supp. III). Moreover, the discharge permitted is restricted to effluent limitations established by Environmental Protection Agency regulations. The statute provided for dual enforcement both by the federal government and by citizen suits. See id. §§ 1319 & 1365. It specifies the relief that may be obtained, the ranges of monetary penalties for various violations, and authorizes imprisonment in certain cases. Id. § 1319(c). Other aspects of the statute include grants for research, water treatment works, and water pollution standards. See generally id. §§ 1251 et seq. Under these circumstances the Court concluded that "Congress ha[d] not left the formulation of appropriate [pollution] standards to the courts . . . but rather ha[d] occupied the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency." Milwaukee v. Illinois, 451 U.S. at 317. Thus, when Congress "speaks directly to a question," Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625, 56 L. Ed. 2d 581, 98 S. Ct. 2010 (1978), that originally "rested on federal common law, the need for such an unusual exercise of lawmaking by federal courts disappears." Milwaukee v. Illinois, 451 U.S. at 314.
This case is quite different. The Trade and Intercourse Acts were not comprehensive statutes. They did not speak directly to the question of the Indians' ability to enforce their possessory rights by an action in ejectment. Rather, the Acts augmented the protection of Indian property rights previously afforded by federal common law by adding an additional statutory prohibition. This statute, inter alia, voided all land transactions in which Indians were a party that were consummated without federal approval. Furthermore, the 1793 Act both authorized the intervention of the President and the federal government on behalf of the Indians, and established criminal penalties for violations of the Act.*fn7 None of these statutory provisions expressly subsumed the common law modes of relief. There is no evidence to suggest that Congress intended to deny common law remedies to the Indians. In an analogous area involving congressional extinguishment of Indian land titles, the Supreme Court has stated that evidence of such congressional intent should be "plain and unambiguous," and would "not be lightly implied in view of the avowed solicitude of the Federal Government for the Welfare of its Indian wards." U.S. v. Santa Fe Pacific, 314 U.S. at 346, 354. Neither should we imply a congressional intention to extinguish the Indians' common law remedy for vindicating their property rights in the absence of plain and unambiguous evidence of such a desire. Accordingly, we hold that the district court had jurisdiction to grant relief under federal common law.
(B) Trade and Intercourse Act.
Judge Port premised liability in large part on the State's violation of the 1793 Trade and Intercourse Act. On appeal, the State apparently does not question Judge Port's holding that the Act was violated. The 1793 Act explicitly required federal approval of a land purchase such as the 1795 cession. No such federal approval was obtained. The Counties, on the other hand, proffer five arguments in seeking to avoid liability: first, that the Trade and Intercourse Acts did not provide for a private suit for the enforcement of their provisions; second, that if such a suit could be maintained it abated upon expiration of the 1793 Act; third, that the Oneidas' claims are barred by the statute of limitations; fourth, that the claims are non-justiciable, and fifth, that the federal government subsequently ratified the 1795 transaction.
It is beyond dispute that the Nonintercourse Acts were enacted for the protection of Indian tribes as beneficiaries. However, "the focus of [our] inquiry is on whether Congress intended to create a remedy," California v. Sierra Club, 451 U.S. 287, 297, 68 L. Ed. 2d 101, 101 S. Ct. 1775 (1981). In resolving that question the Supreme Court has recently given us guidance:
Our approach to the task of determining whether Congress intended to authorize a private cause of action has changed significantly, much as the quality and quantity of federal legislation has undergone significant change. When federal statutes were less comprehensive, the Court applied a relatively simple test to determine the availability of an implied private remedy. If a statute was enacted for the benefit of a special class, the judiciary normally recognized a remedy for members of that class. Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 60 L. Ed. 874, 36 S. Ct. 482 (1916). Under this approach, federal courts, following a common-law tradition, regarded the denial of a remedy as the exception rather than the rule.
In view of the absence of any dispute about the proposition prior to the decision of Cort v. Ash in 1975, it is abundantly clear that an implied cause of action under the CEA was a part of the 'contemporary legal context ' in which Congress legislated in 1974. Cf. Cannon v. University of Chicago, 441 U.S. at 698-699.
Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 374-75, 381, 72 L. Ed. 2d 182, 102 S. Ct. 1825 (1982).
When, prior to Cort v. Ash, 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975), an implied private remedy was part of the "contemporary legal context" in which Congress legislated, Congress will be deemed to have intended to preserve the remedy. Id., 456 U.S. 379-80; Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 730, 44 L. Ed. 2d 539, 95 S. Ct. 1917 (1975).
Application of these basic principles leads us to the conclusion that in enacting the Nonintercourse Acts Congress must have expected that they would be enforced by private actions since they were clearly intended for the benefit of the Indian tribes. The federal statutory structure was extremely simple and had not even approached the complexity which led to the adoption of the Cort v. Ash requirements. Indeed, the right to enforce the Acts through private actions has been assumed by various lower federal courts. See, e.g., Mashpee Tribe v. New Seabury Corp., 427 F. Supp. 899, 903 (D. Mass. 1977); Schaghticoke Tribe of Indians v. Kent School Corp., 423 F. Supp. 780, 784 (D. Conn. 1976); Narragansett Tribe of Indians v. Southern Rhode Island Land Development Corp., 418 F. Supp. 798, 805 & n.3 (D.R.I. 1976). Private enforcement has also been favored because of the federal government's poor performance of its statutory obligation to protect the Indians.*fn8 The congressional directives embodied in the Nonintercourse Acts frequently have been disregarded by the executive branch. See, e.g., Narragansett Tribe, 418 F. Supp. at 806 & n.4. Thus, by necessity, Indian tribes have been permitted to enforce the Acts. In any event we believe that under conventional Cort v. Ash analysis, the Indians have an implied private cause of action to enforce the Nonintercourse Acts' proscriptions.
Cort v. Ash, 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975), outlines four factors to be used in determining whether Congress has intended that individuals may bring private suits to enforce a particular statute:
First, is the plaintiff "one of the class for whose especial benefit the statute was enacted," -- that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?
Id. at 78 (citations omitted) (emphasis in original). We consider these four factors in that order.
The language and purpose of the 1793 Act are unequivocal in their purpose to protect the Indians. Section 1 provides that "no person shall be permitted to carry on any trade or intercourse with the Indian Tribes without a [federally granted] license . . . ." 1 Stat. at 329. Violators of the Act "shall forfeit all the merchandise offered for sale to the Indians," and they also may be imprisoned, and fined up to $1,000. Id. §§ 3 & 5, at 329-30. Furthermore, "no puchase or grant of lands . . . from any Indians [without federal approval] shall be of any validity . . . ." Id. at § 8, at 330-31. The statute's purpose was "to prevent unfair, improvident or improper disposition by Indians of land owned or possessed by them to other parties . . . ." Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 119, 4 L. Ed. 2d 584, 80 S. Ct. 543 (1960); see also Wilson v. Omaha Indian Tribe, 442 U.S. 653, 664, 61 L. Ed. 2d 153, 99 S. Ct. 2529 (1979) ("a major purpose of these acts as they developed was to protect the rights of Indians to their property").
The legislative history of the Nonintercourse Acts, which is sparse and incomplete, furnishes no clear expression on the question of whether Congress intended to create a private right of action for damages. Congressional committee reports generally are unavailable, and floor debates were seldom recorded. The absence of legislative history is neither unusual nor fatal. "The legislative history of a statute that does not expressly create or deny a private remedy will typically be equally silent or ambiguous on the question." Cannon v. University of Chicago, 441 U.S. 677, 694, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979). Nonetheless, "the failure of Congress expressly to consider a private remedy is not inevitably inconsistent with an intent on its part to make such a remedy available." Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18, 62 L. Ed. 2d 146, 100 S. Ct. 242 (1979). "Congressional intent can be inferred from the language of the statute, the statutory structure," Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 94, 67 L. Ed. 2d 750, 101 S. Ct. 1571 (1981), "or in the circumstances of [the statute's] enactment." Transamerica, 444 U.S. at 18. See also Cannon v. University of Chicago, 441 U.S. at 698-99; California v. Sierra Club, 451 U.S. 287, 296, n.7, 68 L. Ed. 2d 101, 101 S. Ct. 1775 n.7 (1981).
The circumstances surrounding the enactment of the 1793 statute show that Congress intended to provide maximum protection of Indian land -- and that this protection included the power to commence a private action.*fn9 The earlier 1790 Act in large part was due to the efforts of President George Washington and his Secretary of War, Henry Knox. Both men were "of high integrity and had extensive experience in Indian affairs." F. Prucha, American Indian Policy in the Formative Years : The Indian Trade and Intercourse Acts of 1790-1834 at 43-44 (1962) (hereinafter " American Indian Policy "). President Washington personally appeared before Congress and warned that legislation was needed to bolster the faltering relations with Indian Tribes. See Sen-Exec. Journal, 1st Cong., 1st Sess. 20-24 (1789); I Annals of Congress 933 (1790).*fn10 Secretary Knox urged that if it were "declared by law . . . that the Indians possess the right to all their territory which they have not fairly conveyed, and that they should not be divested . . . [except by] treaties made under the authority of the United States, the foundation of justice and peace would be laid." American State Papers, I Indian Affairs 53 (1834). The 1790 Act which followed ...