lands for the construction of this and other projects. See United States v. 21,250 Acres of Land etc., 161 F. Supp. 376 (D.C.1957); Seneca Nation of Indians v. United States, 338 F.2d 55, (2 Cir. 1964); and Federal Power Comm. v. Tuscarora Indian Nation, 362 U.S. 99, 80 S. Ct. 543, 4 L. Ed. 2d 584 (1960). But the issue before this Court in the instant motion takes a different slant because the sole issue now is the amount of just compensation to be awarded the Indian owners of these private lands. Attached hereto for explanatory purposes is Appendix 1 - an excerpt from a History of Northwestern Pennsylvania, Vol. I, by Joseph Riesenman, Jr., and published by Lewis Historical Publishing Co., Inc. Appendix 2 is a copy of a statute enacted by the General Assembly of Pennsylvania, approved May 16, 1871, P.L. 879. It is this statute and the effect thereof which gives rise to the present controversy. The issue of just compensation as to these several tracts of Cornplanter land privately owned by individual Indians - heirs of Chief Cornplanter - came on for jury trial at the November Session 1965 in Erie. The only trial issue of any consequence was whether the Jury should consider these lands as held by the Indians in their tax free status but subject to the restriction as to alienation - both of which are provided for in the Pennsylvania 1871 statute. At the trial the Government strongly contended that the issue as to just compensation was to be determined as it is in other land cases, that is - the evidence was to be restricted to that of fair market value - no consideration being given to the tax free status, because the Government urged that is an incident peculiar to the owner - not to the land.
Counsel for the Indian owners, of course, naturally took a contrary position. The Court permitted the statute to be introduced and charged the Jury to consider the tax free status of the land as mentioned in the statute, but at the same time directed the Jury's attention to Section 3 of the Statute which prohibits alienation to anyone but descendants of Cornplanter or members of the Seneca Nation of Indians. The testimony taken from the Indian rolls was that there were some 4,700 living Indians who would qualify as possible purchasers of these lands, as being members of the Seneca Nation of Indians or Cornplanter heirs.
The judgments on the Jury verdicts in these cases were entered by the Clerk on November 26, 1965. The instant motion for new trial in these three civil actions, that is - 1137, 1138, and 1139 - was filed on December 1, 1965. It is urged that the verdicts of the Jury did not conform to the legal standard of just compensation due to the charge of the Court that the tax exempt status was an element of value to be considered by the Jury. It is said also that the testimony of one Russell R. Lane was improperly admitted, as there was no support for his opinion of the fair market value as he included in his value consideration of the tax exempt status; and finally the Government says that the verdicts were excessive.
The United States Attorney on February 11, 1966, filed a supplemental motion for new trial. This motion mentions several other matters which this Court regards as of no consequence, but in any event it was filed more than 60 days after the 10 day period provided in Rule 59 for the service of the motion for new trial. The additional grounds for this motion need not be considered. See Greenwood v. Greenwood, 224 F.2d 318 (3rd Cir. 1955); Baird v. Aluminum Seal Co., 149 F. Supp. 874 (W.D.Pa.1956); and Marks v. Philadelphia Wholesale Drug Company, 125 F. Supp. 369 (E.D.Pa.1954).
In this case as the Court understands it, the Government points to a case in the Second Circuit, Westchester County Park Commission v. United States, 143 F.2d 688 (1944), as authority for the proposition that error was committed in the trial of these cases. In that decision Judge Frank discusses at considerable length the concept of fair market value and the difficulty often encountered in applying it in condemnation cases. The concept of fair market value in its usual sense cannot be applied to the land held by these Indians. That rule presupposes a willing seller and a willing buyer with the value being fixed by reference to comparable sales of similar lands in the vicinity. But that set of circumstances has not existed in the whole history of the Cornplanter grant. Under the evidence the jury determined just compensation based on the fact that Indians owned these lands under the Pennsylvania statute with all its benefits and restrictions. On this point it is believed that the Westchester County Park Commission v. United States case favors the rule applied in the instant cases rather than to the contrary as contended by the Government. For instance, the Court says on p. 692 -
"It may be that, if the County had proved the worth in money terms of the use as a park site, it would be entitled to compensation therefor."
In this Court's opinion that is exactly what was done in these Cornplanter cases. The Jury had the proof of the value of the lands as Indian-held lands. The market value test is not applied in all cases. This has been recognized by the Supreme Court in many instances, notably - Montana Railway Co. v. Warren, 137 U.S. 348, 11 S. Ct. 96, 34 L. Ed. 681 (1890), and reiterated again in a full discussion of the subject in United States v. Miller, 317 U.S. 369, 63 S. Ct. 276, 87 L. Ed. 336 (1943). These lands had no market in the usual sense and, therefore, resort to the best data available to ascertain just compensation was used. This is permissible under the Miller decision, and see also Hanson Lumber Co. v. United States, 261 U.S. 581, 43 S. Ct. 442, 67 L. Ed. 809 (1923); and Monongahela Navigation Co. v. United States, 148 U.S. 312, 13 S. Ct. 622, 37 L. Ed. 463 (1893). Thus, as this Court often says in instructing a Jury, the right of just compensation is never disputed, but the method of arriving at the amount thereof and the testimony as to what it is worth in the terms of money is always relevant in a condemnation case. In this case it seems to me that the Indians are entitled to have the land considered by the Jury with all its benefits and all its restrictions. It is land like no other land privately owned so far as this Court is able to determine. But for the Kinzua Dam the Indians owning this property would own it in perpetuity free from taxation. This status was granted by the State of Pennsylvania. Although these are private lands, the Indian owners are wards of the nation and not of the states, but the federal government has never relinquished its suzerainty over them. See Tuscarora Nation of Indians v. Power Authority, 257 F.2d 885 (2 Cir.) The tax exemption covenant on the Cornplanter lands given by Pennsylvania is the same status enjoyed by Indians in other parts of the nation as evidenced by the Federal Government's refusal to permit states to tax Indian properties. See Mahnomen County v. United States, 319 U.S. 474, 63 S. Ct. 1254, 87 L. Ed. 1527 (1943); and United States v. Rickert, 188 U.S. 432, 23 S. Ct. 478, 47 L. Ed. 532 (1903). There are exceptions, but those are few in number. It is to be noticed in the statute exempting the land from taxation that the language does not refer to the owner - which is the Government's contention - but says:
"* * * nor shall such lands, which held by the descendants of Corn Planter, or members of the Seneca nation of Indians, be liable to taxation, * * *"