Full opinion text
MEMORANDUM-DECISION AND ORDER McCURN, District Judge. During the past decade, Indian tribes have brought numerous lawsuits asserting claims to large tracts of land in the Northeast United States. The actions have thus far involved challenges to the validity of treaties for the purchase of these lands entered into between the States and the Indian tribes subsequent to the adoption of the United States Constitution and after the enactment of the Nonintercourse Act in 1790, 25 U.S.C. § 177. In each instance the suits have been based upon a claim that the treaties were entered into in violation of the Nonintercourse Act which allegedly placed federal restrictions on the alienation of Indian lands. The actions now before the Court represent a departure from the established pattern. For the first time in Indian land claim litigation, a challenge is being waged to the validity of treaties involving land which were entered into prior to the adoption of the United States Constitution and during the period in American history when the Articles of Confederation were in effect. The treaties in issue were entered into between the State of New York and the Oneida Indian Nation in 1785 and 1788. Based upon a claim of aboriginal title, allegedly confirmed and guaranteed by federal treaties, plaintiffs seek a declaration of their right to possession of over five million acres of land located in central New York State and depicted on a map filed with the complaints as a swath of land fifty to sixty miles in width extending from the Pennsylvania border to the Canadian border and encompassing portions of thirteen counties. Plaintiffs also request relief restoring them to possession of their aboriginal territory and awarding them damages for the entire period of their dispossession. These lawsuits are presently before the Court for decision on the defendants’ motions to dismiss and for determination of a motion to intervene made on behalf of the Six Nations of the Iroquois Confederacy. PARTIES 79-CV-798 Plaintiff Oneida Indian Nation of Wisconsin is described in the complaint as an “Indian nation or tribe recognized by the United States with its reservation and principal situs in the State of Wisconsin.” Plaintiff Oneida of the Thames is described as an “Indian nation or tribe recognized by Canada with its reserve and principal situs in Southwold, Canada.” Both plaintiffs allege that they, along with the Oneida Indian Nation of New York, are the direct successors in interest to the Oneida Indian Nation which occupied the lands claimed in the action since time immemorial. The action was commenced on December 5, 1979, by the filing of a complaint naming one-hundred and fifty-two defendants, individually and as representatives of a proposed class of defendants. Included among the named defendants were the State of New York and several of its administrative agencies and officials, counties and municipalities located in the claims area, businesses, and numerous individual land owners in the area involved. By Memorandum-Decision and Order of March 4, 1980, as amended, 85 F.R.D. 701 (N.D.N.Y.1980) (reported without amendments), this Court certified a defendant class consisting of all persons who claim an interest in any portion of the subject land as described in the plaintiffs’ complaint, with the exception of individual Oneida Indians and persons who occupy the land as a principal place of residence to the extent of the residence and up to two surrounding acres. The defendant class consists of approximately 60,000 individuals, businesses and governmental entities and officials. Certain of the defendants were designated by the Court to serve as representatives of the class, and the action was dismissed as to the remaining named defendants who then became members of the class. The Court directed that notice be sent to the members of the defendant class advising the members of the lawsuit and giving them an opportunity to object to certification or otherwise appear or seek to intervene in the action. 78-CV-104 This action, challenging the same transactions as 79-CV-798, was initially commenced by the Oneida Nation of New York and several of its members on March 3, 1978, prior to the commencement of 79-CV-798. Plaintiffs allege that the Oneida Nation of New York is an Indian nation or tribe recognized by the United States government. With respect to the individual plaintiffs, the complaint asserts that “[t]hese individuals and other members of the Oneida Indian Nation of New York are the direct matrilineal descendants of the aboriginal Oneida Indian Nation which since time immemorial owned and occupied approximately 6,000,000 acres of land in central New York State.” Also proposed as a defendant class action, this lawsuit was brought against the State of New York, the New York State Thruway and certain State officials, individually and on behalf of a class of all similarly situated officials of New York State, its agencies, commissions, boards, departments and authorities. The State of New York responded to the complaint by the filing of a motion to dismiss. However, prior to argument on that motion, 79-CV-798 was commenced, and the plaintiffs in 78-CV-104 chose to amend their complaint to conform substantially to that in the more recently filed action. In their amended complaint, the plaintiffs also added considerably to the list of named defendants, including various State commissioners and authorities, and the counties in the claims area. There are, however, still no nongovernmental defendants in the action. No motion has as yet been made for certification of the proposed defendant class in this action. FACTUAL ALLEGATIONS Plaintiffs in both actions allege that from time immemorial up until the time of the acts complained of, the Oneida Indian Nation of New York owned and occupied over five million acres of land in central New York State. In their respective complaints, the plaintiffs give the following account of the historical events leading up to and resulting in the loss of the lands which they now seek to recover. The Oneida Indian Nation and the Federal Government The plaintiffs begin their discourse with the colonial period, asserting that during that time the British Crown pursued a policy of protecting Indian tribes in the peaceful possession of their lands through the establishment of boundaries between the American colonies and the native tribes. Such a boundary was established between the colonies and the Six Nations by a treaty concluded at Fort Stanwix on November 5, 1768. Pursuant to that treaty, the boundary line originated in northern New York State near the eastern end of Lake Ontario, south to the Delaware River, west to the Allegheny River and west along the Ohio to the mouth of the Tennessee River. The portion of the line north of Pennsylvania is claimed to have constituted the southern half of the eastern boundary of the Oneida aboriginal territory. At the outbreak of the hostilities leading up to the American Revolution, the Six Nations declared their intent to remain neutral. However, during the War the Oneidas and Tuscaroras sided with the colonists while the four remaining tribes fought with the British. The American Revolution was concluded by the Treaty of Paris in 1783. The Treaty contained no provision with respect to the Indians. Plaintiffs allege that thereafter the Continental Congress acted to adjust relations with the Indian tribes pursuant to the authority granted it under the Articles of Confederation. Congress created Indian Departments to implement these policies and to make peace with the Indians. On September 22, 1783, the Congress issued a Proclamation dealing with the issue of the authority and control of the central government over the trade and management of affairs with the Indians and prohibiting the purchase of or settlement on certain Indian lands without the permission of the federal government. According to the plaintiffs, in October of 1783, the Continental Congress issued instructions to the Northern Indian Department to negotiate peace with the hostile tribes and as set forth in the complaints to reassure the said tribes [the Oneidas and Tuscaroras, who had been allies of the Colonies] of the friendship of the United States and that they may rely that the lands which they claim as their inheritance will be reserved for their sole use and benefit until they think it for their own advantage to dispose of the same. On October 22, 1784, federal commissioners concluded the Treaty of Fort Stanwix (7 Stat. 15) with the Six Nations. That Treaty provides at Article II that “[t]he Oneida and Tuscarora Nations shall be secured in the possession of the lands on which they are settled.” Id. Plaintiffs allege that pri- or to the signing of the Treaty, the federal commissioners in the course of inviting the Oneidas to treat with the United States had advised the Indians “. . . that a treaty with an individual state, without the sanction of Congress, could be of no validity.” The plaintiffs also assert that the Governor of New York was informed of the central government’s intent to treat with the Six Nations and advised that any business which the State might have with the tribe would be “. . . more properly transacted at the same time and in subordination to the General Treaty.” While New York State did send representatives to observe the treaty negotiations at Fort Stanwix, no business was transacted between the State and the Six Nations at that time. A second treaty between the United States and the Six Nations was concluded on January 9, 1789, at Fort Harmar (7 Stat. 33). This Treaty allegedly confirmed the obligations which the United States undertook in the Treaty of Fort Stanwix by again promising that the Oneida Nation would be “secure in the possession of [its] lands.” Id. at Art. III. Subsequent to the adoption of the Constitution and the enactment of the Nonintercourse Act, the United States and the Six Nations entered into a final treaty on November 11, 1794, in Canandaigua, New York. Plaintiffs contend that this Treaty once again served as a reaffirmation of the federal obligation to protect the Oneida’s rights to their aboriginal lands. The Oneida Nation and New York State Plaintiffs allege in their complaints that in March of 1783 the New York State Legislature instructed its commissioners ... to accomplish an Exchange of the District claimed by the Oneida’s [sic] and the Tuscaroras, for a district of vacant and unappropriated Lands within this state. In the execution of this trust, you are to proceed with caution and reserve, so as not to alarm the Oneida’s and Tusearora’s [sic] with apprehensions that there is the most remote Intention to deprive them of the enjoyment of the District belonging to them. On the contrary you are on all proper occasions to impress them with a confidence that this State will suffer no encroachment to be made within their limits nor any Settlement thereon without their free consent. In 1784 Governor Clinton is said to have invited the Oneida Nation to treat with the State on the pretext of ascertaining the boundaries of the tribe’s land to prevent trespass by non-Indians. Although the Oneidas apparently met with the State commissioners in September of 1784, no treaty was concluded. However, in 1785, the New York Legislature authorized the commissioners to make a second attempt to obtain land from the member tribes of the Six Nations. The commissioners invited the Oneida Nation to meet with them at Fort Herkimer. The complaints offer the following account of the transaction. The Fort Herkimer Treaty council began on June 23, 1785. Governor Clinton offered to protect the Oneidas from further incursions on their land by whith settlers by having the State purchase a large tract of Oneida land along the Unadilla River as a buffer zone between the white settlements and the Indian land. The Oneidas objected to an outright sale of their land, offering instead to lease the land to the State. Governor Clinton then is said to have angrily rejected the Oneida offer threatening to withhold State protection against the trespass on Indian lands. Allegedly after two days of what has been described by plaintiffs as “threats and coercion” the Oneidas acceded and the Treaty was concluded on June 23,1785, with the Oneidas ceding some 300,000 acres of land from their southern border. Attempts by non-Indians to lease and purchase Oneida land continued after the Treaty of 1785, and in 1788 the Oneidas were induced to enter into a 999 year lease of all of their lands to a speculator named John Livingston. No consideration changed hands and the lease was declared void by the New York State Legislature for failure to secure State approval. However, plaintiffs claim that without advising the Oneidas that it had been voided, the State used the Livingston lease as a pretext for requesting another treaty with the Oneidas. Plaintiffs quote from an April 1788 invitation from the State to the Oneidas which while recognizing that the white lessees had taken advantage of the Indians concluded that: ... it is not too late to make all things right; and if you attend at the Council Fire which will be lighted at Fort Schuyler the 10th day of July next, your true and ancient Friends the Governor and Chiefs of the State will meet you there, and will brighten the chain of Friendship, and will put you in the right way and will support you in it. The plaintiffs contend that the Oneidas interpreted the message from the commissioner as meaning that by treating with the State, they would regain possession of their lands and thus accepted the invitation. Negotiations between the Oneidas and the State commenced on September 16, 1788, at Fort Schuyler. Governor Clinton is alleged to have repeatedly assured the Oneidas that the purpose for the treaty council was the protection of the Indian’s lands from the Whites rather than an attempt to purchase the land. The Oneidas were purportedly advised that they should place all of their land in the hands of the State and under its protection forever, reserving a tract for the use and occupation of the tribe. Plaintiffs suggest that the Oneidas interpreted the Governor’s proposal as an agreement that the State would regulate the settlement of Indian lands and would pay the Oneidas a yearly rent to be increased periodically as the lands became settled. The Oneidas accepted the Governor’s proposal allegedly believing that their lands had been restored to them and only leased or entrusted to the care of the State for their own protection. The State did not make periodic rent increases and in 1839 ceased making payments altogether as the result of passage of a State statute capitalizing the periodic payments and extinguishing future payment obligations through a lump sum payment. Chap. 518 N.Y.Laws, 1839. Plaintiffs contend that the United States neither participated in nor authorized either the 1785 and 1788 Treaties or the passage of the 1839 statute. Nor according to plaintiffs, has the United States subsequently ratified any of the above State actions. PLAINTIFFS’ CLAIMS The complaints in both of these actions set forth the same five claims for relief. The first claim, asserted against all of the defendants and defendant class members, is premised upon plaintiffs’ contention that Article IX of the Articles of Confederation bestowed upon the federal government the sole and exclusive authority to enter into treaties and regulate affairs with the Indian tribes located within the boundaries of the States, including New York. According to plaintiffs, issuance of the Proclamation of September 22, 1783, and the negotiation of the Fort Stanwix Treaty constituted legitimate exercises of the authority granted the central government under the Articles. For their first claim for relief, plaintiffs allege that the 1785 and 1788 Treaties entered into between the Oneida Indian Nation and New York State are void for violation of Article IX of the Articles of Confederation, the Proclamation of 1783 and the Treaty of Fort Stanwix of 1784. The plaintiffs in 78-CV-104 assert in addition that the Treaty of 1788 is void for violation of sections 8 and 10 of the United States Constitution. These same plaintiffs also include a claim under 42 U.S.C. § 1983. The second claim, also against all of the defendants and defendant class members, charges that the 1785 and 1788 Treaty negotiations were conducted “in an atmosphere of deceit, threat, and coercion.” Thus, according to plaintiffs, the Oneidas did not voluntarily sell their land but merely acceded to the State’s demands under fraud and duress. Plaintiffs argue that as a result of the misconduct of State officials and the unequal bargaining power of the parties, along with the allegedly unconscionable consideration imposed by the State, that a constructive trust arose with respect to the land involved in these transactions, with the State as trustee and the Oneidas as beneficiaries. According to plaintiffs, the beneficial title which rested in the Oneidas as a result of the imposition of the constructive trust, came under the protection of the Nonintercourse Act upon its enactment in 1790. Claiming that the federal government has not since consented to the sale or extinguishment of the Oneida’s interest in the land, plaintiffs allege that the Oneidas presently hold equitable title thereto. For their third claim, against the State of New York alone, plaintiffs allege that the State fraudulently misled the Oneida Nation about the purpose and intent of both the 1785 and 1788 Treaties, by representing the purpose to be the protection and preservation of Oneida lands rather than acquisition of the land for its own use as actually intended. Plaintiffs assert that the Oneida Nation relied upon the State’s misrepresentations in agreeing to the Treaties and was thereby deprived of the use and possession of the subject lands. The fourth claim, also directed against the State alone, is based upon plaintiffs’ assertion that the 1788 Treaty did not constitute an outright sale but either a perpetual lease or express or implied trust. In conjunction with that claim, plaintiffs contend that under Article 37 of the New York State Constitution [1777], the State had assumed an express trust obligation to protect Indian lands within its borders. Plaintiffs claim that the State breached both Article 37 and the terms of the lease or trust agreement by inducing the Oneidas to execute the 1788 Treaty by deception and fraud, by failing to make promised increases in annual payments for the use of the land and by purporting to unilaterally extinguish its future rental obligation by capitalizing all future payments into one lump sum payment in 1839. Plaintiffs contend that as a result of the State’s actions, they have a reversionary or beneficial interest in the land involved in the transaction, which became subject to the federal restriction on alienation imposed by the enactment of the Nonintercourse Act. Plaintiffs’ final claim for relief, this one asserted against all of the defendants and defendant class members, involves an allegation that the 1788 Treaty was fatally vague in that the provisions for periodic increases in annual payments failed to specify the rate or amount of increase. Arguing that this allegedly material provision of the Treaty was so indefinite as to be unenforceable, plaintiffs contend that no interest in the subject lands passed to New York State by the agreement. Thus, according to plaintiffs, upon passage of the Nonintereourse Act, the Oneida’s title to the land became subject to the federal restriction on alienation. The plaintiffs seek the following relief with respect to the foregoing claims: (1) a declaration that they are the owners of and have the right to possession of all of the subject land claimed or held by any defendant or member of a defendant class, or in the alternative, a declaration that plaintiffs have a reversionary or beneficial interest in that part of the subject land conveyed to defendant State of New York in 1788 and an order directing the State to specifically perform its obligations under the Treaty of 1788 with the Oneida Indian Nation; (2) restoration to immediate possession of all portions of the subject land claimed by any defendant or member of a defendant class; (3) an award of the fair rental value for all of the subject land claimed by the defendants and defendant class members for the entire period of the plaintiffs’ dispossession; and (4) an award of all costs and attorneys fees. Plaintiffs in 78-CV-104 seek the following additional relief: (1) interest on the fair rental value for all of the subject land for the entire period of the plaintiffs’ dispossession; (2) an award of all tolls collected by defendant New York State Thruway Authority for passage over Oneida lands, including all tolls collected until judgment is entered; and (3) a declaration of plaintiffs’ hunting and fishing rights and all other rights under the 1788 Treaty, in the event the Court refuses to find that agreement to be void. MOTIONS TO DISMISS Defendants seek dismissal of these actions on a number of grounds including lack of justiciability, failure to state a claim upon which relief can be granted, and the applicability of various State law defenses. The State defendants claim in addition that these lawsuits are barred by the Eleventh Amendment to the Constitution. While the Court finds that defendants’ justiciability and Eleventh Amendment arguments are without merit, it does agree that plaintiffs in these actions have failed to state a claim upon which relief may be granted in this Court and therefore grants the defendants’ motions to dismiss both complaints. JURISDICTION Plaintiffs assert jurisdiction under 28 U.S.C. §§ 1331, 1337 and 1362. The plaintiffs in 78-CV-104 add 28 U.S.C. § 1343(3) as a jurisdictional basis for their constitutional and federal statutory claims. None of the defendants seriously disputes the presence of subject matter jurisdiction in these cases, although the Counties and Ryan challenge the Court’s jurisdictional authority to determine certain issues which are alleged to raise solely questions of State law for which there is no independent federal jurisdictional basis. Relying on the decision of the Supreme Court in Oneida Indian Nation v. County of Oneida, supra, the Court con-eludes that it has jurisdiction over these lawsuits under both 28 U.S.C. §§ 1331 and 1362. The plaintiffs in the County of Oneida case challenged the validity of a 1795 land transaction between the State of New York and the Oneida Indian Nation, alleging that the conveyance violated treaties entered into between the United States and the Six Nations as well as the Nonintercourse Act. The plaintiff’s complaint was dismissed by the District Court for lack of subject matter jurisdiction, and the Court of Appeals affirmed. The lower Court determinations were based upon a finding by those Courts that the plaintiff’s cause of action was created solely under State law. The Courts concluded that the necessity of interpreting federal treaties and statutes was not sufficient to sustain federal Court jurisdiction over an action essentially seeking relief based on the alleged right to possession of real property. Reversing the lower Court decisions, Justice White writing for the Supreme Court explained that: Accepting the premise of the Court of Appeals that the case was essentially a possessory action, we are of the view that the complaint asserted a current right to possession conferred by federal law, wholly independent of state law. The threshold allegation required of such a well-pleaded complaint — the right to possession — was plainly enough alleged to be based on federal law. . . . Moreover, we think that the basis for petitioners’ assertion that they had a federal right to possession governed wholly by federal law cannot be said to be so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court, whatever may be the ultimate resolution of the federal issues on the merits. Supra, 414 U.S. at 666, 94 S.Ct. 777. The decision of the Court was clearly grounded upon its recognition of the fact that “[o]nce the United States was organized and the Constitution adopted, . . . tribal rights to Indian lands became the exclusive province of federal law.” Supra, 414 U.S. at 667, 94 S.Ct. 777. The cases now before this Court involve pre-constitutional treaties, and probably the most crucial issue to be decided is whether during the Confederacy period, Indian interests in land within the boundaries of a State were already “the exclusive province of federal law.” Id. However, the Court is of the opinion that the distinction does not deprive it of jurisdiction over these lawsuits. Plaintiffs in these actions assert claims under the Constitution, federal treaties and under the Nonintercourse Act in addition to their claims under the Articles of Confederation. Furthermore, it cannot be said that those claims are “so insubstantial, implausible, foreclosed by prior decision of [the Supreme Court] or otherwise completely devoid of merits as not to involve a federal controversy within the jurisdiction” of this Court. Id. at 666, 94 S.Ct. at 777. It is true that the language of Sections 1331 and 1362 does not provide jurisdiction for claims arising under the Articles of Confederation or laws passed by the Continental Congress. Nor did the Constitution save or create any cause of action for violations of the Articles. Therefore, it is arguable that there may be no independent federal jurisdictional basis for those claims. However, even if defendants are correct in their assertion that claims under the Articles of Confederation and the Proclamation of 1783 may only be stated under State law, this Court has the authority and chooses to exercise pendent jurisdiction over those claims in the event that no independent federal jurisdiction can be found. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). JUSTICIABILITY In order for these lawsuits to be decided on their merits, they must not only satisfy jurisdictional requirements but must also be found to be justiciable. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Sneaker Circus, Inc. v. Carter, 566 F.2d 396, 401 (2d Cir. 1977). The defendants contend that the plaintiffs’ claims are nonjusticiable, necessitating the dismissal of both complaints. As recognized by the Supreme Court in Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968), “[j]usticiability is itself a concept of uncertain meaning and scope.” However, in these cases the justiciability arguments are limited to three well recognized areas. First, the defendants assert that the plaintiffs are without standing. Second, they argue that “the claim[s] presented and the relief sought are [not] of the type which admit of judicial resolution.” Powell v. McCormack, 395 U.S. 486, 516-17, 89 S.Ct. 1944, 1961, 23 L.Ed.2d 491 (1969). Third, the defendants claim that the issues raised in the lawsuits fall within the reach of the political question doctrine. Standing Defendants contend that the plaintiffs are without standing to assert or recover for claims which belonged to the original Oneida Indian Nation. When standing is challenged on a motion to dismiss, the Court is obliged to accept the factual allegations in the complaint and to construe the complaint in the light most favorable to the complaining party. See Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979). Plaintiffs in these actions have alleged that they are “successors in interest” to the original Oneida Indian Nation, and it is this portrayal of their status which defendants assert leaves them without standing. Defendants claim that in order to recover under the Nonintercourse Act, a plaintiff tribe must establish that it has been a tribe at all relevant times, see Mashpee Tribe v. New Seabury Corp., supra, and mere “successors in interest” do not, according to defendants, satisfy that requirement. Defendants, however, overlook the fact that in addition to claiming “successor in interest” status, plaintiffs allege that they constituted the Oneida Nation at the time of the acts complained of, and more importantly claim that they have continuously maintained tribal relations up until the present. Although if the actions were to survive, plaintiffs in both actions would ultimately be put to their proof on their right to recovery, the Court is convinced that they have at this point alleged a sufficient interest to give them standing to proceed on their claims and denies defendants’ request for dismissal on that basis. See Oneida Indian Nation v. County of Oneida, supra, 434 F.Supp. at 532-33. Appropriateness of Judicial Resolution In deciding whether the claims for relief are appropriate for judicial resolution, the Court must determine whether “the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.” Baker v. Carr, supra, 369 U.S. at 198, 82 S.Ct. at 700. Defendants assert that the claims raised in these actions are nonjusticiable— cannot be judicially determined by this Court — because the justness of the extinguishment of the Oneida Indian Nation’s aboriginal title by the Treaties with New York State in 1785 and 1788 is not open to inquiry by the judiciary. The defendants reach this conclusion through reliance on the doctrine of discovery and an attack on the alleged authority of the federal government under the Articles of Confederation. Defendants begin their argument by pointing out that had the extinguishment of title been accomplished by the United States Congress under the Constitution, this Court would unquestionably be precluded from inquiring into the fairness of the transactions. The defendants find support for their position in United States v. Santa Fe Pacific Ry. Co., 314 U.S. 339, 347, 62 S.Ct. 248, 252, 86 L.Ed. 260 (1941), in which Justice Douglas writing for the Court stated that: Extinguishment of Indian title based on aboriginal possession is of course a different matter. The power of Congress in that regard is supreme. The manner, method and time of such extinguishment raise political not justiciable issues. . . As stated by Chief Marshall in Johnson v. M'Intosh, [21 U.S. (8 Wheat.) 543, 586, 5 L.Ed. 681 (1823)] “the exclusive right of the United States to extinguish” Indian title has never been doubted. And whether it be done by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise, its justness is not open to inquiry in the courts. See also Beecher v. Wetherby, 95 U.S. 517, 525, 24 L.Ed. 440 (1877); United States v. Gemmill, 535 F.2d 1145, 1147 (9th Cir. 1976), cert. denied sub nom. Wilson v. United States, 429 U.S. 982, 97 S.Ct. 496, 50 L.Ed.2d 591 (1976). According to the defendants, under the doctrine of discovery, New York had that same absolute right to extinguish Indian title at the time of the Treaties of 1785 and 1788. The concept of extinguishment of aboriginal title arises out of the doctrine of discovery which was adopted by the Supreme Court long ago both to explain and justify its determination as to the Indian tribes’ and the European discoverers’ respective interests in the land which the Indians occupied at the time of the “discovery” of what is now the United States. The ease of Johnson v. McIntosh, supra presented the first instance in which it was necessary for the Court to delineate the rights attaching to the Indians’ interest in the land they inhabited. The plaintiffs in that case claimed title to land under a grant from the Chiefs of two Indian tribes. The question before the Court was whether the Indians had fee title to the land, which would be recognized in the Courts of the United States and which could be conveyed to others. Chief Justice Marshall, relying on the doctrine of discovery concluded that the Indians had less than a fee simple interest in the land. Explaining his decision the Chief Justice wrote that: On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy. The potentates of the old world found no difficulty in convincing themselves, that they made ample compensation to the inhabitants of the new, by bestowing on them ■ civilization and Christianity, in exchange for unlimited independence. But as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated, as between themselves. This principle was, that discovery gave title to the government by whose subject, or by whose authority, it was made, against all other European governments, which title might be consummated by possession .... Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them. In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were, necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as a just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished and their power to dispose of the soil, at their own will, to whomever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees subject only to the Indian right of occupancy. Supra, 21 U.S. at 572-74. Thus, as recently stated by the Supreme Court in Oneida Indian Nation v. County of Oneida, supra, 414 U.S. at 667, 94 S.Ct. 777: [i]t very early became accepted doctrine in this Court that although fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign — first the discovering European nation and later the original states and the United States — a right of occupancy in the Indian tribes was nevertheless recognized. That right, sometimes called Indian title and good against all but the sovereign, could be terminated only by sovereign act. Defendants allege that in 1785 and 1788 when the challenged treaties were entered into, New York State was the sovereign in the sense used by the Supreme Court. Prior to the American Revolution Great Britain as discovering sovereign had the sole authority to extinguish the Indians’ possessory interest in their land. However, as explained by Chief Justice Marshall in Johnson v. McIntosh, supra, 21 U.S. at 584-85: By the treaty which concluded the war of our revolution, Great Britain relinquished all claim, not only to the government, but to the “proprietary and territorial rights of the United States,” whose boundaries were fixed in the second article. By this treaty, the powers of government, and the right to soil, which had previously been in Great Britain, passed definitively to these states. . . . It has never been doubted, that either the United States, or the several states, had a clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right, was vested in that government which might constitutionally exercise it. Despite the Chief Justice’s uncertainty on the issue of whether the several states or the federal government had the exclusive right to extinguish Indian title to land located within the states during the Confederacy period, the defendants assert that the power clearly belonged to the states under the Articles of Confederation, and that this Court may not now question the exercise of that power. It will be recalled, that one of, if not the basic premise relied upon by plaintiffs in these lawsuits is the assertion that under the Articles of Confederation the federal government had the sole and exclusive authority to extinguish Indian title to land located within the geographical limitations of the states. While plaintiffs’ position will be more fully addressed at a later point in this decision, it is important at this juncture to recognize the existence of a serious controversy which must be resolved before this Court is even in a position to determine whether or not it may inquire into the justness of the State’s actions with respect to the Treaties of 1785 and 1788. This particular aspect of defendants’ justiciability argument does not go to the Court’s authority to determine the controversy over the allocation of powers under the Articles of Confederation. The Court should not conclude that these actions should be dismissed on justiciability grounds because the resolution of certain issues one way or the other might place before it issues which it later may be precluded from deciding on those grounds. In fact, the Court is obligated to go as far as it properly can in the exercise of its jurisdiction over those issues which are found to be justiciable. The possibility that the justness of the 1785 and 1788 Treaties will ultimately be found to present a nonjusticiable issue cannot prevent the Court’s legitimate exercise of its jurisdiction. Nor does the second aspect of defendants’ justiciability argument, that relief cannot be judicially molded, warrant dismissal of these actions. Defendants suggest, probably with complete accuracy, that an award of possession of over five million acres of land in New York State to the plaintiffs in these cases would create utter chaos and disaster to many, socially, economically and politically. In fact, the defendants go so far as to claim that the Court would be unable to even successfully fashion an order granting such relief, adding that if it did attempt to do so that it would have to “establish itself by judicial fiat as a kind of transitional government and appoint its officers as unelected vice-regents to manage a transfer which could take years.” (Memorandum of Law in support of defendants’ motion to dismiss submitted by the Counties and Ryan at p. 32). Even if the Court was to treat plaintiffs’ claim for the fair rental value as an alternative claim for money damages, the amount, if it could be determined at all, would according to the defendants, be staggering, and execution of such a judgment would result in personal, business and municipal defaults. Responding to the defendants argument, the plaintiffs point out that in addition to seeking injunctive and damages relief they are asking the Court for a declaration of their rights with respect to the subject lands. The plaintiffs contend that they should be allowed to pursue their claim for declaratory relief even if for some reason the Court is unable to fashion any further relief in these actions. The Court agrees. In Powell v. McCormack, supra, elected Representative Adam Clayton Powell and certain of his constituents commenced suit for declaratory, injunctive and mandatory relief challenging a Congressional resolution barring his seating in the House on the grounds of alleged misconduct. The defendants in that case, the Speaker of the House and various House officials and employees, sought dismissal on justiciability grounds, arguing among other things that the molding of effective relief was impossible in the face of the Speech and Debate Clause of the Constitution. That provision allegedly left the Court without authority to issue coercive relief, including mandamus and injunctive relief, compelling officers or employees of the House to act. Justice Douglas, writing for the Court, noted that Powell had sought declaratory as well as coercive relief, and found that the District Court would have been empowered to issue declaratory relief “whether or not further relief [was] or could be sought.” 28 U.S.C. § 2201 quoted supra, 395 U.S. at 517, 89 S.Ct. 1962. According to Justice Douglas: [T]he availability of declaratory relief depends on whether there is a live dispute between the parties, (citation omitted), and a request for declaratory relief may be considered independently of whether other forms of relief are appropriate. Supra at 518, 89 S.Ct. at 1962. Therefore, plaintiffs in these cases should be given the opportunity to pursue their request for declaratory relief. The foregoing should not be interpreted as a finding by this Court that no relief other than a declaratory judgment could be awarded to the plaintiffs were they to ultimately succeed on the merits in these cases. While the question of appropriate relief need not be resolved at this point, it is unlikely that relief would be so limited. The Court, however, is keenly aware of the serious, if not insurmountable, problems which would arise out of granting the plaintiffs the relief they seek. Furthermore, it is not blind to the fact that plaintiffs are asking for the return of land which has been highly developed since it was last inhabited by the members of the Oneida Indian Nation, and that is certainly a factor which would merit consideration in the formulation of a remedy in these cases. There is no question but that these cases present claims which should long ago have been resolved in a legislative forum rather than in a court of law. Unfortunately, neither the State of New York nor the federal government has shown much inclination to do so thus far. As Judge Port stated in his decision in Oneida Indian Nation v. County of Oneida, supra, 434 F.Supp. at 531-32: The greater part of the disruption and individual hardships caused by litigation such as this could be avoided by seeking solutions through the other available vehicles. This in no way is intended to be critical of the plaintiffs’ conduct. The trial of this case demonstrated that they have patiently for many years sought a remedy by other means — but to no avail.... The aptness of what was recently said by Chief Judge Kaufman is striking. “As in so many cases in which a political solution is preferable, the parties find themselves in a court of law.” British Airways Board v. Port Authority of New York and New Jersey, 558 F.2d 75 at 78 (2d Cir. 1977). However, even though the molding of relief in these cases would present difficult problems for this or any Court, the difficulties are unlike the barriers usually found to preclude the granting of a specific type of relief. For example, in Powell v. McCormack, supra, the challenge to the Court’s authority to issue mandatory and injunctive relief did not go to the consequences of doing so, but to the actual power of the Court to act in light of the Speech and Debate Clause. In a somewhat different type of situation, a Court may be unable to fashion a remedy simply because there are no adequate or reliable standards to rely on in deciding what might be an appropriate resolution to the problem involved. While Indian land claim cases tend to defy the application of any traditional label, they are not unlike ejectment actions, and the Courts in the past have had little problem in fashioning remedies in such cases. Clearly, there are considerations in these cases which are not normally present in ejectment actions. Nonetheless, there are standards available which could in all likelihood serve as a basis for the formulation of a remedy which would ultimately have to be based upon the considerations and the equities lying with both sides to these lawsuits. Political Question Doctrine Finally, the defendants claim that these actions are barred under the political question doctrine. It is well established that federal courts will not decide political questions. See Baker v. Carr, supra; Powell v. McCormack, supra; Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). However, the exact contours of the doctrine are unclear, and determinations have traditionally been made on a case by case basis. Baker v. Carr, supra. The doctrine has been identified as “essentially a function of the separation of powers.” Baker v. Carr, supra, 369 U.S. at 217, 82 S.Ct. at 710. See also Olegario v. United States, 629 F.2d 204, 216 (2d Cir. 1980) cert. denied, 450 U.S. 980, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981). However, the Supreme Court has also acknowledged that the doctrine is at least in part a recognition of the inherent limitations on the judiciary. Coleman v. Miller, supra; Luther v. Borden, 48 U.S. (7 How.) 1, 12 L.Ed. 581 (1849); Occ of Umm al Qaywayn v. A Certain Cargo, Etc., 577 F.2d 1196, 1203 (5th Cir. 1978), cert. denied 442 U.S. 928, 99 S.Ct. 2857, 61 L.Ed.2d 296 (1979). In Baker v. Carr, supra, 369 U.S. at 217, 82 S.Ct. at 710, Justice Brennan, writing for the Court, attempted to formulate a list of criteria to be considered in determining the presence of a political question, and concluded that: Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question’s presence. See also Goldwater v. Carter, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979) (Concurring opinion of Justice Powell). The defendants claim that these cases present political questions under the first three formulations set forth by Justice Brennan. The Court disagrees and declines to dismiss the actions on that ground. Defendants first contend that the Court’s authority to determine these plaintiffs’ right to relief is limited under the political question doctrine as the result of a textual commitment of power to Congress. The defendants point out that there are disagreements among the various alleged successors in interest to the aboriginal land of the original Oneida Indian Nation. According to the defendants, the judiciary is required to initially defer to Congressional determinations with respect to the rights of the various claimants and the distribution of tribal property because there has been a clear textual commitment of those issues to Congress under Art. I, Sec. 8, Cl. 3 of the United States Constitution which gives that branch of government the power “[t]o regulate commerce with the Indian tribes.” The defendants’ argument is based upon the decision of the Supreme Court in Delaware Tribal Business Committee v. Weeks, 430 U.S. 73, 97 S.Ct. 911, 51 L.Ed.2d 173 (1976). The Court, however, does not find that case dispositive. The Delaware case involved a challenge to a Congressional determination respecting the disbursement of funds awarded by the Indian Claims Commission. The award had been made to the Delaware Indians, and the suit was commenced by a group of Delawares who had been excluded from recovery. Two groups of Delawares who were recipients under the Congressional Act argued that the suit presented a non justiciable political question based upon the authority of Congress to control tribal property. The Court found that “[t]he power of Congress over Indian affairs may be of a plenary nature; but it is not absolute.” Id. at 84, 97 S.Ct. 919, quoting from United States v. Alcea Band of Tillamooks, 329 U.S. 40, 54, 67 S.Ct. 167, 174, 91 L.Ed. 29 (1946) (plurality opinion). While conceding that as a general rule the judiciary was required to defer to Congress in determinations as to the best use of tribal funds, the Court recognized the existence of judicial authority to review those Congressional determinations and did so in that case. If the plaintiffs were to ultimately prevail on the merits in these cases, it is not inconceivable that the Court might be required to defer to Congressional determinations with respect to the distribution of any relief granted. At that point the Supreme Court decision in the Delaware case might have some direct relevance to these lawsuits. For the present the Court finds little or none. This Court has found no instance in which an Indian land claim case has been dismissed on justiciability grounds and is not convinced that the claims raised by these plaintiffs present any political questions requiring dismissal by virtue of the authority granted Congress under the Constitution. The plaintiffs in these lawsuits are asking the Court to construe various provisions of the Articles of Confederation, to interpret treaties entered into between the United States and the Six Nations, and New York State and the Oneida Indian Nation, and to determine the applicability of the Nonintercourse Act with respect to the subject land. Clearly, none of the above constitutes a usurpation of the authority granted Congress under the Constitution. In Wharton v. Wise, 153 U.S. 155, 14 S.Ct. 783, 38 L.Ed. 669 (1894) the Supreme Court did not hesitate to assume the task of interpreting Article VI of the Articles of Confederation, and in Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832), while the Court found it unnecessary to interpret the Articles, it in no way suggested that it would be without authority to do so. Interpretation of treaties between the United States and the Indian tribes has long been recognized as a judicial function. See e. g. State of Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed. 493 (1981); Confederated Bands of Ute Indians v. United States, 330 U.S. 169, 67 S.Ct. 650, 91 L.Ed. 823 (1947); Choctaw Nation of Indians v. United States, 318 U.S. 423, 63 S.Ct. 672, 87 L.Ed. 877 (1943). Finally, as pointed out by the Court in Narragansett Tribe of Indians v. Southern Rhode Island Development Corp., supra at 815, Courts are not precluded from determining the applicability of the Nonintercourse Act since “[j]udicial construction and implementation of a statute passed by Congress surely cannot constitute interference with powers committed by the Constitution to Congress.” See also Mohegan Tribe v. State of Connecticut, supra (Second Circuit deciding a question concerning the coverage of the Nonintercourse Act). Defendants assert next that the actions involve solely political questions because of a lack of judicially manageable standards for resolving them. This argument includes in part a repetition of the claim that this Court is precluded from adjudicating the justness of New York’s ex-tinguishment of the Oneida’s aboriginal title. Having already addressed that argument, the Court need not do so again. However, the defendants also raise a new claim which involves allegations of both a lack of judicially manageable standards and a textual commitment to a coordinate political branch. The defendants argue that Congress, in the exercise of its constitutional authority over the Indian tribes, has delegated the sole power to remedy violations of Indian land rights to the executive branch. Defendants find that asserted allegation in 25 U.S.C. § 180 which provides that: Every person who makes a settlement on any lands belonging, secured, or granted by treaty with the United States to any Indian tribe, or surveys or attempts to survey such lands, or to designate any of the boundaries by marking trees, or otherwise, is liable to a penalty of $1,000. The President may, moreover, take such measures and employ such military force as he may judge necessary to remove any such person from the lands. Without offering any direct authority for their position with respect to 25 U.S.C. § 18Q, defendants suggest that since Congress has, pursuant to its Art. I powers, delegated to the executive the remedial discretion to deal with violations of Indian lands rights, a lawsuit seeking relief for those same violations presents nonjusticiable political questions. The defendants do rely on the decision of the Supreme Court in Luther v. Borden, supra for support of the general proposition that once the executive has been given discretion to act or not act in a given situation, courts may not do so. However, this Court finds that case easily distinguishable from the present actions. The Court in Luther was asked to decide which of two competing governments was the legitimate government of the State of Rhode Island. It declined to do so on political question grounds, after concluding that determination of the legitimacy of a State government was textually committed to Congress by the Guaranty Clause of the Constitution. Writing for the Court, Chief Justice Taney explained that: Under [Art. 4, Sec. 4] of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not.... And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. . .. So, too, as relates to the clause in the abovementioned article of the Constitution, providing for cases of domestic violence. It rested with Congress, too, to determine upon the means proper to be adopted to fulfil this guarantee. They might, if they had deemed it most advisable to do so, have placed it in the power of a court to decide when the contingency had happened which required the federal government to interfere. But Congress thought otherwise, and no doubt wisely; and by the act of February 28, 1975, provided, that, “in case of an insurrection in any State against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such State or of the executive (when the legislature cannot be convened), to call forth such number of the militia of any other State or States, as may be applied for, as he may judge sufficient to suppress such insurrection.” By this act, the power of deciding whether the exigency had arisen upon which the government of the United States is bound to interfere, is given to the President ... he must determine what body of men constitute the legislature, and who is the governor, before he can act. ... If there is an armed conflict, like the one of which we are speaking, it is a case of domestic violence, and one of the parties must be in insurrection against the lawful government. And the President must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the Act of Congress. Supra 48 U.S. at 42-44. The President had not called out the militia, but he had, on application of the charter governor of Rhode Island, recognized him as the executive of the State and took measures to arrange for the militia to be called out if necessary. The Court’s decision with regard to executive action might, as defendants seem to suggest, be looked at merely as an extension of its textual commitment determination made with respect to the Guaranty Clause, since the executive authority clearly arose from the exercise of Congressional power under that provision. However, that does not appear to be a completely accurate analysis of the Court’s decision. Rather, the Court appeared to recognize that as a result of the executive actions there was “an unusual need for unquestioning adherence to a political decision already made.” Baker v. Carr, supra, 369 U.S. at 217, 82 S.Ct. 710. There is no such need in this case, and the decision in Luther is not controlling. As defendants point out, the Department of the Interior has thus far declined to commence actions challenging the 1785 and 1788 Treaties on behalf of the plaintiffs, so at this point there is no serious risk of conflict as in Luther. Furthermore, defendants have not shown any indication of a Congressional intent to limit the Indians’ rights to protect their own rights in land as the defendants seem to suggest was intended by 25 U.S.C. § 180. Therefore, the Court does not find these cases to be nonjusticiable by virtue of the grant of executive authority contained in that section. For their final political question doctrine argument, defendants claim that the Court should find these cases to be nonjusticiable because it is impossible to decide them “without an initial policy determination of the kind clearly for nonjudicial discretion.” Baker v. Carr, supra, 369 U.S. at 217, 82 S.Ct. 710. First, the defendants point out that there are those among their number with legitimate needs and rights which are as meritorious as plaintiffs. They include in that group the poor, the elderly, the mentally and physically disabled dependent upon the government for their sustenance, and indirectly the taxpayer. Defendants also stress that any wrong done was done to a political entity which they allege no longer exists, under a government which no longer exists at a time before this Court came into being. The defendants argue that in order to decide these cases, the Court must make several policy decisions of a kind for nonjudicial discretion, including determining that the plaintiffs are the proper parties, deciding that New York had a pre-constitutional legal duty enforceable by the present plaintiffs, and choosing who shall bear the burden of providing relief should plaintiffs prevail. Plaintiffs contend, and the Court agrees that the defendants are attempting to extend the reach of the “initial policy determination” formulation beyond its intended reach. The question of whether the plaintiffs are the proper parties is an issue which, as previously explained, is to be resolved whenever possible through acceptance of executive determinations of tribal status. Resolution of the question of whether New York State had a pre-constitutional duty enforceable by these plaintiffs does not require a policy determination but rather construction of the Articles of Confederation, and a legal decision as to whether these particular plaintiffs are the proper beneficiaries. Finally, while the Court agrees that a determination as to who should bear the burden of providing relief should plaintiffs prevail involves certai