Seneca Nation of Indians v. United States

338 F.2d 55, 1964 U.S. App. LEXIS 4031

• Court: Court of Appeals for the Second Circuit
• Decided: October 29, 1964
• Docket: 468, Docket 28817
• Status: Published

Opinions

MARSHALL, Circuit Judge.

The Seneca Nation of Indians appeals from an order of the United States District Court for the Western District of New York granting summary judgment to the United States in a condemnation suit. On October 11, 1963 the United States began condemnation proceedings to acquire certain land in Cattaraugus County, New York in connection with the Allegheny Reservoir Project. The Seneca Nation filed an answer specifically denying that the portion of its land was necessary for the dam and further denied that Congress had authorized the-taking of the land in question. The-United States moved for judgment on the-pleadings. Both sides filed affidavits and', after oral argument the summary judgment and order of possession were granted in favor of the United States. We affirm the judgment.

This appeal presents an exceedingly narrow issue. While asserting rights under the Treaty of November 11, 1794 (7 Stat. 44) between the United States: and the Seneca Nation to keep its lands: inviolate, the Seneca Nation also recognizes the power of Congress to take or to* sanction the talcing of its land for public purposes without regard to the treaty Cherokee Nation v. Southern Kansas Ry. Co., 135 U.S. 641, 10 S.Ct. 965, 34 L.Ed. 295 (1890); United States v. Klamath & Moadoc Tribes, 304 U.S. 119, 58 S.Ct. 799, 82 L.Ed. 1219 (1938). See Tuscarora Nation of Indians v. Power Authority, 257 F.2d 885 (2 Cir.), cert. denied, 358 U.S. 841, 79 S.Ct. 66, 3 L.Ed.2d 76 (1958). Indeed, there is-no question of the right of the United States to condemn the land here in question for the public purpose of constructing the reservoir project. Seneca Nation of Indians v. Brucker, 104 U.S. App.D.C. 315, 262 F.2d 27 (D.C.Cir.1958), cert. denied, 360 U.S. 909, 79 S.Ct.1294, 3 L.Ed.2d 1260 (1959).

The replacement or relocation of existing highways unquestionably is a part of the reservoir project authorized by Congress. Act of June 28, 1938, 52 Stat. 1215, as amended, 33 U.S.C.A. § 701c-1. The land involved in this action is land necessary to extend the rerouted Route 17 from a two-lane to a four-lane limited access highway. The decision to make this extension was made by the Secretary of the Army and Congress delegated this authority to the Secretary. See 33 U.S.C.A. § 701c-1; 33 U.S.C.A. § 701r-1(c). As my Brother Moore once recognized, Tuscarora Nation of Indians v. Power Authority, 257 F.2d 885, 893 (2 Cir.), cert. denied, 358 U.S. 841, 79 S.Ct. 66, 3 L.Ed.2d 76 (1958), Congress need not itself specifically and expressly authorize by “special -enactment” each particular taking of Indian land, but can choose to delegate some of its authority to administrative offices and agencies. We see no xeason to interfere with this reasonable exercise of delegated administrative discretion as to the amount of land required for the relocation of the road. Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170 (1893); Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954). It is hard to see how a four-lane road will interfere with communication among the Senecas so much more than a two-lane road and, as the District Court found, the increased highway requirements result in part from the Allegheny Reservoir Project itself. Because the Secretary of the Army acted within his authority and reasonably, we affirm the judgment.