Second. That the gross laches of His Majesty's Government in presenting the claim (which has made impossible the ascertainment by contemporaneous and trustworthy evidence of the facts as to the alleged rights of those Indians of Cayuga blood who were domiciled in Canada, in 1811), should, per se, estop that Government from now advancing it.

Third. That the Arbitral Tribunal should apply the well known principle of equity, which requires a court to refuse aid to a stale claim where the party asserting the claim has slept upon his rights and acquiesced for a great length of time in the conduct of the party, against whom his claim is asserted, and especially so. where, as in this case, the claim is made upon a guarantor.

Discussion of the Prayer for Relief in the Memorial.

In considering the contention of His Britannic Majesty's Government that those Indians of Cayuga descent, who abandoned their domicile in and allegiance to the United States and became British subjects, still retain a right to participate in the annuity payable under the Agreement of 1795, and the corollary thereto that such right is one common to all Indians of Cayuga descent, wherever domiciled, the attention of the Arbitral Tribunal is directed to the fact that the burden rests upon His Majesty's Government to prove:

First. That the Indians, in whose behalf this claim is now advanced, are of the posterity of the Cayuga Nation.

245

It should be remembered that the Cayuga Nation, from time immemorial, has determined its membership solely through the maternal line,' so that the offspring of a male Cayuga, who married outside the Nation, were never considered to be members of the Cayuga Nation, but to belong to the nation of their mother. This mode of determining its membership has been continued, without interruption, by the Cayuga Nation in the United States.246 It affirmatively appears, however, that this mode of determining descent was abandoned some time after 1850 by the Indians in Canada,247 and that descent was thereafter traced through the father. The Indians, whose descent is traced through the paternal line, are not the posterity of the Cayuga Nation, which made the

245 Appendix, Vol. II, pp. 769, 774, 801, 826.

246 Appendix, Vol. III, pp. 939-940, 942-944; Memorial, Vol. II, pp. 155, 162. 247 Memorial, Vol. II, pp. 128-129, 329-331; Vol. III, pp. 506–507, 509-510, 512-513.

Agreement of 1795, but merely Indians of possible Cayuga blood, whom the Nation would never have recognized as its members or admitted to a participation in any of its communal property.

Second. The number of Indians who are now domiciled in Canada, who are of the posterity of the Cayuga Nation.

The figures given in the memorial upon this point248 should not be accepted as proof of the number of Indians domiciled in Canada, who are of the posterity of the Cayuga Nation, since it is obvious that the number of these so-called Cayugas must have been appreciably increased, when the change in tracing descent was made from the maternal to the paternal line, by the addition to the number of those who were of Cayuga descent through the mother of a number of others who were the offspring of Cayuga fathers and non-Cayuga mothers.

His Majesty's Government, therefore, are clearly not entitled to assert a claim to a per capita share of the annuity on the basis of any census of these so-called Cayugas taken since this change in the mode of tracing descent, as it would result in a proportionate distribution obviously unjust to the Cayuga Nation in the United States, whose membership is and has been strictly limited to those who traced their descent through the maternal line.249

"Interest at current rates" from the date of the maturity of each payment of the annuity or "an equivalent as damages for detention" is prayed for in the memorial.250 "Current rates" apparently mean at the rate of six per cent or more.

Article IV of the terms of submission annexed to the Special Agreement of August 18, 1910, renders superfluous any discussion of the rate of interest, or the period of time for which it may be awarded, since it lays down the jurisdictional rule that interest can only be awarded at a rate "not exceeding 4 per cent per annum," and for no period of time except "for the whole or any part of the period between the date when the claim was first brought to the notice of the other party and that of the confirmation of the schedule in which it is included." In no event, therefore, can interest be included in any award made in liquidation of this claim at a greater rate than 4 per cent per annum, or for any period of time other than a whole or a part of the time between

248 Memorial, Vol. III, p. 977.

249Appendix, Vol. III, pp. 939-940, 942-944; Memorial, Vol. II, pp. 155, 162.

June 9, 1898,251 when the claim was first brought to the notice of the United States, and June 6, 1911, the date of the confirmation of the schedule, in which this claim is included.

Upon this question, the United States submits, however, that to include interest in any award made in liquidation of the claim would be inequitable, by reason of the laches of His Majesty's Government in presenting the claim to the United States, since any interest given would be, in effect, a benefit derived by His Majesty's Government from their own negligence.

The terms of the Special Agreement of August 18, 1910, which created the Arbitral Tribunal and defined its jurisdiction, expressly limit its jurisdiction to pecuniary claims "outstanding between the two governments at the date of the signature of this agreement and originating in circumstances or transactions anterior to that date." It is obvious, therefore, that no declaration or finding as to any payments of this annuity made or to be made after August 18, 1910, can properly be included in any award which may be made in liquidation of this claim.

The United States submits that the propositions numbered I to XVII inclusive, which it has hereinbefore outlined as its principal defenses to this claim,252 have been fully established by the evidence and are supported by the principles of law and equity applicable thereto.

The United States, therefore, contends that it has not violated the provisions of Article IX of the Treaty of Ghent by any failure on its part to fulfill the obligations imposed upon it by that Article, and that, therefore, no liability rests upon it in this case for the following reasons, inter alia:

First. The Indians of Cayuga blood, domiciled in Canada in 1811, in behalf of whose descendants this claim is now advanced, were not a tribe or nation of Indians within the meaning of Article IX and were not entitled, therefore, to the benefit of the provisions of that Article.

Second. Such Indians are not shown to have complied with the conditions precedent to the right of any tribe or nation to claim the benefit of the provisions of Article IX.

51Appendix, Vol. III, pp. 945-947.

Third. Such Indians did not in 1811 enjoy nor were they then entitled to any possessions, rights and privileges within the meaning of Article IX, to which, by that Article, the United States was in any way obligated to restore them.

Fourth. The gross laches of His Britannic Majesty's Government in presenting this claim has relieved the United States from any obligation it may have had in 1815 to take action upon it and estops His Britannic Majesty's Government from now advancing it against the United States.

The United States, therefore, contends that the claim made by His Britannic Majesty's Government, entitled "Cayuga Indians," is not well founded in fact or in law, and asks that it be dismissed and finally barred.

ROBERT LANSING, Agent of the United States.