FPC v. Tuscarora Indian Nation
362 U.S. 99 (1960)

Annotate this Case

U.S. Supreme Court

FPC v. Tuscarora Indian Nation, 362 U.S. 99 (1960)

Federal Power Commission v. Tuscarora Indian Nation

No. 63

Argued December 7, 1959

Decided March 7, 1960*

362 U.S. 99

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

Under § 21 of the Federal Power Act, certain lands purchased and owned in fee simple by the Tuscarora Indian Nation and lying adjacent to a natural power site on the Niagara River may be taken for the storage reservoir of a hydroelectric power project, upon payment of just compensation, by the Power Authority of the State of New York under a license issued to it by the Federal Power Commission as directed by Congress in the Act of August 21, 1957, 71 Stat. 401. Pp. 362 U. S. 100-124.

(1) Inasmuch as the lands here involved are owned in fee simple by the Tuscarora Indian Nation and no "interest" in them is "owned by the United States," they are not within a "reservation," as that term is defined in § 3(2) of the Federal Power Act, and therefore a Commission finding under § 4(e) "that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired" is not necessary to the issuance of a license embracing the lands in question. Pp. 362 U. S. 110-115.

(2) By the broad general terms of § 21 of the Federal Power Act, Congress has authorized the Federal Power Commission's licensees to take lands owned by Indians, as well as those of all other citizens, when needed for a licensed project, upon payment of just compensation; the lands in question are not subject to any treaty between the United States and the Tuscarora Indian Nation, and 25 U.S.C. § 177, forbidding a transfer of lands from Indians unless made by a treaty or convention entered into pursuant to the Constitution, does not apply to the United States itself, nor prohibit it or its licensees under the Federal Power Act from taking such lands in the manner provided by § 21 upon payment of just compensation. Pp. 362 U. S. 115-124.

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

Page 362 U. S. 100

MR. JUSTICE WHITTAKER delivered the opinion of the Court.

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

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

Page 362 U. S. 101

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

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

Page 362 U. S. 102

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

Although there was "no controversy as to the most desirable engineering plan of development," [Footnote 4] there was serious disagreement in Congress over whether the project should be publicly or privately developed and over marketing preferences and other matters of policy. That disagreement continued through eight sessions of Committee Hearings, during which more than 30 proposed bills were considered, in the Eighty-first to Eighty-fifth Congresses, [Footnote 5] and delayed congressional authorization of the project for seven years.

Page 362 U. S. 103

On June 7, 1956, a rock slide destroyed the Schoellkopf plant. [Footnote 6] This created a critical shortage of electric power in the Niagara community. It also required expansion of the plans for the Niagara project if the 20,000 cubic feet per second of water that had been reserved for the Schoellkopf plant was to be utilized. Accordingly, the Power Authority of New York prepared and submitted to Congress a major revision of the project plans. Those revised plans, designed to utilize all of the Niagara waters available to the United States under the 1950 Treaty, provided for an installed capacity of 2,190,000 kilowatts, of which 1,800,000 kilowatts would be dependable power for 17 hours per day, necessitating a storage reservoir of 60,000 acre-feet capacity covering about 2,800 acres. [Footnote 7]

Page 362 U. S. 104

Confronted with the destruction of the Schoellkopf plant and the consequent critical need for electric power in the Niagara community, Congress speedily composed its differences in the manner and terms prescribed in Public Law 85-159, approved August 21, 1957. 71 Stat. 401. By § 1(a) of that Act, Congress "expressly authorized and directed" the Federal Power Commission

"to issue a license to the Power Authority of the State of New York for the construction and operation of a power project with capacity to utilize all of the United States share of the water of the Niagara River permitted to be used by international agreement."

By § 1(b) of the Act, the Federal Power Commission was directed to "include among the licensing conditions, in addition to those deemed necessary and required under the terms of the Federal Power Act," seven conditions which are of only collateral importance here. [Footnote 8] The concluding section of the Act, § 2, provides:

"The license issued under the terms

Page 362 U. S. 105

of this Act shall be granted in conformance with 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 of the project herein authorized."

Thereafter, the Power Authority of the State of New York, a municipal corporation created under the laws of that State to develop the St. Lawrence and Niagara power projects, applied to the Federal Power Commission for the project license which Congress had thus directed the Commission to issue to it. Its application embraced the project plans that it had submitted to the Eighty-fifth Congress shortly before its approval of Public Law 85-159. [Footnote 9] The project was scheduled to be completed in 1963 at an estimated cost of $720,000,000.

Hearings were scheduled by the Commission, of which due notice was given to all interested parties, including the Tuscarora Indian Nation, inasmuch as the application contemplated the taking of some of its lands for the reservoir. The Tuscarora Indian Nation intervened and objected to the taking of any of its lands upon the ground "that the applicant lacks authority to acquire them." At the hearings, it was shown that the Tuscarora lands needed for the reservoir -- then though to be about 1,000 acres -- are part of a separate tract of 4,329 acres purchased in fee simple by the Tuscarora Indian Nation, with the assistance of Henry Dearborn, then Secretary of War, from the Holland Land Company on November 21, 1804, with the

Page 362 U. S. 106

proceeds derived from the contemporaneous sale of their lands in North Carolina -- from which they had removed in about the year 1775 to reside with the Oneidas in central New York. [Footnote 10]

After concluding the hearings, the Commission, on January 30, 1958, issued its order granting the license. It found that a reservoir having a usable storage capacity of 60,000 acre-feet "is required to properly utilize the water resources involved." Although the Commission found that the Indian lands "are almost entirely underdeveloped

Page 362 U. S. 107

except for agricultural use," it did not pass upon the Tuscaroras' objection to the taking of their lands, because it then assumed that "other lands are available for reservoir use if the Applicant is unable to acquire the Indian lands." But the Commission did direct the licensee to revise its exhibit covering the reservoir, to more definitely show the area and acreage involved, and to resubmit it to the Commission for approval within a stated time.

In its application for rehearing, the Tuscarora Indian Nation contended, among other things, that the portion of its lands sought to be taken for the reservoir was part of a "reservation," as defined in § 3(2), and as used in § 4(e), of the Federal Power Act, [Footnote 11] and therefore could not lawfully be taken for reservoir purposes in the absence of a finding by the Commission "that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired." By its order of March 21, 1958, denying that application for rehearing, the Commission found that "[t]he best location of the reservoir would require approximately 1,000 acres of land owned by Intervener," and it held that the Indian lands involved

"are not part of a 'reservation' referred to in Section 4(e) as defined in Section 3(2) of the [Federal Power] Act, and the finding suggested by Intervener is not required."

On May 5, 1958, the Commission issued its order approving the licensee's revised exhibit which precisely delineated the location, area, and acreage to be embraced by the reservoir -- which included 1,383 acres of the Tuscaroras' lands.

On May 16, 1958, the Tuscarora Indian Nation filed a petition for review in the Court of Appeals for the District of Columbia Circuit challenging the license issued by the Commission on January 30, 1958, insofar as it

Page 362 U. S. 108

would authorize the taking of Tuscarora lands. [Footnote 12] By its opinion and interim judgment of November 14, 1958, the Court of Appeals held that the Tuscarora lands sought to be taken for the reservoir constitute a part of a "reservation"

Page 362 U. S. 109

within the meaning of §§ 3(2) and 4(e) of the Federal Power Act, and that the Commission may not include those lands in the license in the absence of a § 4(e) finding that their taking "will not interfere or be inconsistent with the purpose for which such reservation was created or acquired," and the court remanded the case to the Commission that it might "explore the possibility of making that finding." 105 U.S.App.D.C. 146, 265 F.2d 338, 343.

Upon remand, the Commission held extensive hearings, exploring not only the matter of the making of the finding held necessary by the Court of Appeals, but also the possibility of locating the reservoir on other lands. In its order of February 2, 1959, the Commission found that the use of other lands for the reservoir would result in great delay, severe community disruption, and unreasonable expense; that a reservoir with usable storage capacity of 60,000 acre-feet is required to utilize all of the United States' share of the water of the Niagara River, as required by Public Law 85-159; that removal of the reservoir from the Tuscarora lands by reducing the area of the reservoir would reduce the usable storage capacity from 60,000 acre-feet to 30,000 acre-feet and result in a loss of about 300,000 kilowatts of dependable capacity. But it concluded that, although other lands contiguous to their reservation might be acquired by the Tuscaroras, [Footnote 13]

Page 362 U. S. 110

the taking of the 1,383 acres of Tuscarora lands for the reservoir "would interfere and would be inconsistent with the purpose for which the reservation was created or acquired." That order was transmitted to the Court of Appeals, which, on March 24, 1959, after considering various motions of the parties, entered its final judgment approving the license except insofar as it would authorize the taking of Tuscarora lands for the reservoir, and remanded the case to the Commission with instructions to amend the license

"to exclude specifically the power of the said Power Authority to condemn the said lands of the Tuscarora Indians for reservoir purposes."

105 U.S.App.D.C. at 152, 265 F.2d at 344.

Because of conflict between the views of the court below and those of the Second Circuit, and of the general importance of the questions involved, we granted certiorari. 360 U.S. 915.

The parties have urged upon us a number of contentions, but we think these cases turn upon the answers to two questions, namely, (1) whether the Tuscarora lands covered by the Commission's license are part of a "reservation" as defined and used in the Federal Power Act, 16 U.S.C. § 791a et seq., and, if not, (2) whether those lands may be condemned by the licensee, under the eminent domain powers conferred by § 21 of the Federal Power Act, 16 U.S.C. § 814. We now turn to a consideration of those questions in the order stated.

I

A Commission finding that "the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired" is required by § 4(e)

Page 362 U. S. 111

of the Federal Power Act, 16 U.S.C. § 797(e), only if the lands involved are within a "reservation" in the sense of that term as defined and used in that Act. That, by generally accepted standards and common understanding, these Tuscarora lands may be part of a "reservation" is not at all decisive of whether they are such within the meaning of the Federal Power Act. Congress was free and competent artificially to define the term "reservations" for the purposes it prescribed in the Act. And we are bound to give effect to its definition of that term, for it would be idle for Congress to define the sense in which it used it "if we were free in despite of it to choose a meaning for ourselves." Fox v. Standard Oil Co.,294 U. S. 87, 294 U. S. 96. By § 3(2) of the Federal Power Act, 16 U.S.C. § 796(2), Congress has provided:

"Sec. 3. The words defined in this section shall have the following meanings for purposes of this Act, to-wit:"

"* * * *"

"(2) 'reservations' means national forests, tribal lands embraced within Indian reservations, military reservations, and other lands and interests in lands owned by the United States, and withdrawn, reserved, or withheld from private appropriation and disposal under the public land laws; also lands and interests in lands acquired and held for any public purposes; but shall not include national monuments or national parks."

(Emphasis added.) The plain words of this definition seem rather clearly to show that Congress intended the term "reservations," wherever used in the Act, to embrace only "lands and interests in lands owned by the United States."

Turning to the definition's legislative history, we find that it, too, strongly indicates that such was the congressional intention. In the original draft bill of the Federal

Page 362 U. S. 112

Water Power Act of 1920, as proposed by the Administration and passed by the House in the Sixty-fifth and Sixty-sixth Congresses, the term was defined as follows:

"'Reservations' means lands and interest in lands owned by the United States and withdrawn, reserved, or withheld from private appropriation and disposal under the public land laws, and lands and interest in lands acquired and held for any public purpose. [Footnote 14]"

It is difficult to perceive how congressional intention could be more clearly and definitely expressed. However, after the bill reached the Senate, it inserted the words

"national monuments, national parks, national forests, tribal lands embraced within Indian reservations, military reservations, and other"

(emphasis added) at the beginning of the definition. [Footnote 15] When the bill was returned to the House, it was explained that the Senate's "amendment recasts the House definition of reservations.'" [Footnote 16] The bill as enacted contained the definition as thus recast. It remains in that form, except for the deletion of the words "national monuments, national parks," which was occasioned by the Act of March 3, 1921 (41 Stat. 1353),, negating Commission authority to license any project works within "national monuments or national parks," and those words were finally deleted from the definition by amendment in 1935. 49 Stat. 838. It seems entirely clear that no change in substance was intended or effected by the Senate's amendment, and that its "recasting" only specified, as illustrative, some of the "reservations" on "lands and interests in lands owned by the United States."

Further evidence that Congress intended to limit "reservations," for the "purpose of this Act" (§ 3), to those

Page 362 U. S. 113

located on "lands owned by the United States" or in which it owns an interest is furnished by its use of the term in the context of § 4(e) of the Act. By that section, Congress, after authorizing the Commission to license projects in streams or other bodies of water over which it has jurisdiction under the Commerce Clause of the Constitution (Art. I, § 8, cl. 3), authorized the Commission to license projects "upon any part of the public lands and reservations of the United States." Congress must be deemed to have known, as this Court held in Federal Power Comm'n v. Oregon,349 U. S. 435, 349 U. S. 443, that the licensing power, "in relation to public lands and reservations of the United States springs from the Property Clause" of the Constitution-namely, the

". . . Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States. . . ."

Art. IV, § 3, cl. 2. In thus acting under the Property Clause of the Constitution, Congress must have intended to deal only with "the Territory or other Property belonging to the United States." Ibid.

Moreover, the Federal Power Act's plan of compensating for lands taken or used for licensed projects is explicable only if the term "reservations" is confined, as Congress evidently intended, to those located on "lands owned by the United States" or in which it owns a proprietary interest. By § 21, 16 U.S.C. § 814, licensees are authorized to acquire "the lands or property of others necessary to the" licensed project "by the exercise of the right of eminent domain" in the federal or state courts, and, of course, upon the payment of just compensation. But, despite its general and all-inclusive terms, § 21 does not apply to nor authorize condemnation of lands or interests in lands owned by the United States, because § 10(e) of the Act, 16 U.S.C. 803(e), expressly provides that "the licensee shall pay to the United States reasonable annual charges . . . for recompensating it for

Page 362 U. S. 114

the use, occupancy, and enjoyment of its lands or other property" (emphasis added) devoted to the licensed project. It therefore appears to be unmistakably clear that by the language of the first proviso of that section saying, in pertinent part,

"That when licenses are issued involving the use of Government dams or other structures owned by the United States or tribal lands embraced within Indian reservations (these italicized words being lifted straight from the § 3(2) definition of 'reservations') the Commission shall . . . fix a reasonable annual charge for the use thereof . . . ,"

Congress intended to treat and treated only with structures, lands and interests in lands owned by the United States, for, as stated, the section expressly requires the "reasonable annual charges" to be paid to the United States for the use, occupancy, and enjoyment of "its lands or other property." (Emphasis added.)

This analysis of the plain words and legislative history of the Act's definition of "reservations" and of the plan and provisions of the Act leaves us with no doubt that Congress, "for purposes of this Act" (§ 3(2)), intended to and did confine "reservations," including "tribal lands embraced within Indian reservations" (§ 3(2)), to those located on lands "owned by the United States" (§ 3(2)), or in which it owns a proprietary interest.

The Court of Appeals did not find to the contrary. Indeed, it found that the Act's definition of "reservations" includes only those located on lands in which they United States "has an interest." But it thought that the national paternal relationship to the Indians and the Government's concern to protect them against improper alienation of their lands gave the United States the requisite "interest" in the lands here involved, and that the result "must be the same as if the phrase "owned by the United States [etc.]" were not construed as a limitation upon the term "tribal lands [etc.]." 105 U.S.App.D.C.

Page 362 U. S. 115

at 150, 265 F.2d at 342. We do not agree. The national "interest" in Indian welfare and protection "is not to be expressed in terms of property. . . ." Heckman v. United States,224 U. S. 413, 224 U. S. 437. The national "paternal interest" in the welfare and protection of Indians is not the "interests in lands owned by the United States' required, as an element of "reservations," by § 3(2) of the Federal Power Act. (Emphasis added.)

Inasmuch as the lands involved are owned in fee simple by the Tuscarora Indian Nation and no "interest" in them is "owned by the United States," we hold that they are not within a "reservation" as that term is defined and used in the Federal Power Act, and that a Commission finding under § 4(e) of that Act "that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired" is not necessary to the issuance of a license embracing the Tuscarora lands needed for the project.

II

We pass now to the question whether the portion of the Tuscarora lands here involved may be condemned by the licensee under the provisions and eminent domain powers of § 21 of the Federal Power Act. Petitioners contend that § 21 is a broad general statute authorizing condemnation of "the lands or property of others necessary to the construction, maintenance, or operation of any" licensed project, and that lands owned by Indians in fee simple, not being excluded, may be taken by the licensee under the federal eminent domain powers delegated to it by that section. Parrying this contention, the Tuscarora Indian Nation argues that § 21, being only a general Act of Congress, does not apply to Indians or their lands.

The Tuscarora Indian Nation heavily relies upon Elk v. Wilkins,112 U. S. 94. It is true that, in that case, the

Page 362 U. S. 116

Court, dealing with the question whether a native-born American Indian was made a citizen of the United States by the Fourteenth Amendment of the Constitution, said:

"Under the constitution of the United States, as originally established . . . , General acts of Congress did not apply to Indians unless so expressed as to clearly manifest an intention to include them."

112 U.S. at 112 U. S. 99-100. However that may have been, it is now well settled by many decisions of this Court that a general statute in terms applying to all persons includes Indians and their property interests. In Superintendent of Five Civilized Tribes v. Commissioner,295 U. S. 418, the funds of a restricted Creek Indian were held and invested for him by the Superintendent, and a question arose as to whether income from the investment was subject to federal income taxes. In an earlier case, Blackbird v. Commissioner, 38 F.2d 976, the Tenth Circuit had held such income to be exempt from federal income taxation. But, in this case, the Board of Tax Appeals sustained the tax, the Tenth Circuit affirmed, and the Superintendent brought the case here. This Court observed that, in the Blackbird case, the Tenth Circuit had said that to hold a general act of Congress to be applicable to restricted Indians would be contrary to the almost unbroken policy of Congress in dealing with its Indian wards and their affairs. Whenever they and their interests have been the subject affected by legislation, they have been named and their interests specifically dealt with. That is precisely the argument now made here by the Tuscarora Indian Nation. But this Court, in affirming the judgment, said:

"This does not harmonize with what we said in Choteau v. Burnet,283 U. S. 691, 283 U. S. 693, 283 U. S. 696 (1931):"

" The language of [the Internal Revenue Act of 1918] subjects the income of 'every individual' to tax. Section 213(a) includes income 'from any

Page 362 U. S. 117

source whatever.' The intent of Congress was to levy the tax with respect to all residents of the United States and upon all sorts of income. The act does not expressly exempt the sort of income here involved, nor a person having petitioner's status respecting such income, and we are not referred to any other statute which does. . . . The intent to exclude must be definitely expressed, where, as here, the general language of the act laying the tax is broad enough to include the subject matter."

"The court below properly declined to follow its quoted pronouncement in Blackbird's Case. The terms of the 1928 Revenue Act are very broad, and nothing there indicates that Indians are to be excepted. See Irwin v. Gavit,268 U. S. 161; Heiner v. Colonial Trust Co.,275 U. S. 232; Helvering v. Stockholms Enskilda Bank,293 U. S. 84; Pitman v. Commissioner, 64 F.2d 740. The purpose is sufficiently clear."

295 U.S. at 295 U. S. 419-420.

In Oklahoma Tax Comm'n v. United States,319 U. S. 598, this Court, in holding that the estate of a restricted Oklahoma Indian was subject to state inheritance and estate taxes under general state statutes, said:

"The language of the statutes does not except either Indians or any other persons from their scope. [319 U.S. at 319 U. S. 600.] If Congress intends to prevent the State of Oklahoma from levying a general nondiscriminatory estate tax applying alike to all its citizens, it should say so in plain words. Such a conclusion cannot rest on dubious inferences."

319 U.S. at 319 U. S. 607. See, e.g., Shaw v. Gibson-Zahniser Oil Corporation,276 U. S. 575, 276 U. S. 581-582; United States v. Ransom, 263 U.S. 691; Kennedy v. Becker,241 U. S. 556, 241 U. S. 563-564; Choate v. Trapp,224 U. S. 665, 224 U. S. 673.

Page 362 U. S. 118

The Federal Power Act constitutes a complete and comprehensive plan for the development and improvement of navigation and for the development, transmission and utilization of electric power in any of the streams or other bodies of water over which Congress has jurisdiction under its commerce powers, and upon the public lands and reservations of the United States under its property powers. See § 4(e). It neither overlooks nor excludes Indians or lands owned or occupied by them. Instead, as has been shown, the Act specifically defines and treats with lands occupied by Indians -- "tribal lands embraced within Indian reservations." See §§ 3(2) and 10(e). The Act gives every indication that, within its comprehensive plan, Congress intended to include lands owned or occupied by any person or persons, including Indians. The Court of Appeals recognized that this is so. 105 U.S.App.D.C. at 151, 265 F.2d at 343. Section 21 of the Act, by broad general terms, authorizes the licensee to condemn "the lands or property of others necessary to the construction, maintenance, or operation of any" licensed project. That section does not exclude lands or property owned by Indians, and, upon the authority of the cases cited, we must hold that it applies to these lands owned in fee simple by the Tuscarora Indian Nation.

The Tuscarora Indian Nation insists that, even if its lands are embraced by the terms of § 21 of the Federal Power Act, they still may not be taken for public use "without the express consent of Congress referring specifically to those lands," because of the provisions of 25 U.S.C. § 177. [Footnote 17] That section, in pertinent part, provides:

"No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any

Page 362 U. S. 119

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. . . ."

The obvious purpose of that statute is to prevent unfair, improvident or improper disposition by Indians of lands owned or possessed by them to other parties, except the United States, without the consent of Congress, and to enable the Government, acting as parens patriae for the Indians, to vacate any disposition of their lands made without its consent. See, e.g., United States v. Hellard,322 U. S. 363; United States v. Candelaria,271 U. S. 432, 271 U. S. 441-442; Henkel v. United States,237 U. S. 43, 237 U. S. 51; United States v. Sandoval,231 U. S. 28, 231 U. S. 46-48. But there is no such requirement with respect to conveyances to or condemnations by the United States or its licensees; "nor is it conceivable that it is necessary, for the Indians are subjected only to the same rule of law as are others in the State. . . ." United States v. Oklahoma Gas & Elec. Co.,318 U. S. 206, 318 U. S. 211.

As to the Tuscaroras' contention that § 177 prohibits the taking of any of their lands for the reservoir "without the express and specific consent of Congress," one thing is certain. It is certain that, if § 177 is applicable to alienations effected by condemnation proceedings under § 21 of the Federal Power Act, the mere "expressed consent" of Congress would be vain and idle. For § 177 at the very least contemplates the assent of the Indian nation or tribe. And inasmuch as the Tuscarora Indian Nation withholds such consent and refuses to convey to the licensee any of its lands, it follows that the mere consent of Congress, however express and specific, would avail

Page 362 U. S. 120

nothing. Therefore, if § 177 is applicable to alienations effected by condemnation under § 21 of the Federal Power Act, the result would be that the Tuscarora lands, however imperative for the project, could not be taken at all.

But § 177 is not applicable to the sovereign United States nor, hence, to its licensees to whom Congress has delegated federal eminent domain powers under § 21 of the Federal Power Act. The law is now well settled that:

"A general statute imposing restrictions does not impose them upon the Government itself without a clear expression or implication to that effect."

United States v. Wittek,337 U. S. 346, 337 U. S. 358-359.

In United States v. United Mine Workers of America,330 U. S. 258, 330 U. S. 272-273, the Court said:

"There is an old and well known rule that statutes which in general terms divest preexisting rights or privileges will not be applied to the sovereign without express words to that effect."

See, e.g., Leiter Minerals, Inc., v. United States,352 U. S. 220, 352 U. S. 224-225; United States v. Wyoming,331 U. S. 440, 331 U. S. 449; United States v. Stevenson,215 U. S. 190; United States v. American Bell Telephone Co.,159 U. S. 548, 159 U. S. 553-555; Lewis v. United States,92 U. S. 618, 92 U. S. 622; United States v. Herron, 20 Wall. 251, 87 U. S. 263; Dollar Savings Bank v. United States, 19 Wall. 227, 86 U. S. 239.

This Court has several times applied, in combination, the rules (1) that general Acts of Congress apply to Indians as well as to all others in the absence of a clear expression to the contrary, and (2) that general statutes imposing restrictions do not apply to the Government itself without a clear expression to that effect. It did so in Henkel v. United States,237 U. S. 43 (sustaining the right of the United States to take Indian lands for reservoir purposes under the general Reclamation Act of June 17, 1902, 32 Stat. 388), in Spalding v. Chandler, 160 U.S.

Page 362 U. S. 121

394 (sustaining the power of the Government to convey a strip of land through a track owned by an Indian tribe to one Chandler for the use of the State of Michigan in constructing a canal, even though the conveyance was in derogation of a treaty with the Indian tribe), and in Cherokee Nation v. Southern Kansas R. Co.,135 U. S. 641. There, this Court sustained the right of a licensee of the Government to take so much of the undescribed fee lands of an Indian tribe as was necessary for the licensed project, though in derogation of the terms of a treaty between the United States and the Indian tribe, [Footnote 18] saying:

"It would be very strange if the national government, in the execution of its rightful authority, could exercise

Page 362 U. S. 122

the power of eminent domain in the several states, and could not exercise the same power in a territory occupied by an Indian nation or tribe, the members of which were wards of the United States, and directly subject to its political control. The lands in the Cherokee territory, like the lands held by private owners everywhere within the geographical limits of the United States, are held subject to the authority of the general government to take them for such objects as are germane to the execution of the powers granted to it, provided only that they are not taken without just compensation being made to the owner."

135 U.S. at 135 U. S. 656-657.

Page 362 U. S. 123

See also Lone Wolf v. Hitchcock,187 U. S. 553, 187 U. S. 565; Missouri, Kansas & Texas R. Co. v. Roberts,152 U. S. 114, 152 U. S. 117-118; Beecher v. Wetherby,95 U. S. 517; Kohl v. United States,91 U. S. 367.

In the light of these authorities we must hold that Congress, by the broad general terms of § 21 of the Federal Power Act, has authorized the Federal Power Commission's licensees to take lands owned by Indians, as well as those of all other citizens, when needed for a licensed project, upon the payment of just compensation; that the lands in question are not subject to any treaty between the United States and the Tuscaroras (see notes 10 and | 10 and S. 99fn18|>18); and that 25 U.S.C. § 177 does not apply to the United States itself, nor prohibit it, or its licensees under the Federal Power Act, from taking such lands in

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