1. Laura C. Vázquez Pagán
801-10-8256
CASE NOTE
Equity’s Necessity and Effect in The Cayuga Indians Case
Cayuga Indians (Great Britain) v. United States (1926)
I. INTRODUCTION
As a means to expedite the resolution of conflicts between the United States and Great Britain,
both States signed Arbitration Conventions in the 19th
and 20th
century. The Tribunals created by these
conventions sought to finalize all disputes between the countries, and block further action in previous
claims on part of either party, as established by the 1853 Convention’s barring clause. The Cayuga
Indians Case of 1926 was one of such disputes, presented by Great Britain on behalf of the Cayuga
Indians residing in Canada, British subjects since the early 19th
century, against the United States in
representation of the State of New York and the New York based Cayugas. The case emphasized the
importance of equity as a valid means of conflict resolution in international law.
II. BACKGROUND
A. Factual Background
In 1784, a considerable portion of the Cayuga Indian Nation removed itself from Buffalo, New
York, to Gran River, Canada. By means of three treaties, created in 1789, 1790 and finally 1795, the
Cayuga Nation agreed to transfer ownership of the lands upon which they’d resided to the state of New
York, in exchange for a perpetual annuity ascending to $1,800 in favor of the “Cayuga Nation”. From
1795 to 1810, this amount was paid in favor of a group of Cayugas located in Grand River, Canada,
who would then pass on part of it to the tribes in the United States. Starting 1811, receipts showed the
money being paid to members of the New York; no further portion of the payments reached the
Canadian Cayugas.
Following the War of 1812, Great Britain and the United States signed the Treaty of Ghent
(1814), to restore peace and the status quo of tribes before the war. Despite this, the Canadian Cayugas
continued to receive no part in the annuity; they attempted to the obtain judicial remedy for their claim
in New York, but the Court ruled the issue a political one over which it held no jurisdiction. Recurring
to the New York legislature bore no fruits either, as it determined “that the Canadian Cayugas had no
rights against the State under the Treaty, and that the State discharged all its obligations under the
Treaty by payment to the American Cayugas.”1
As a last recourse, the Cayugas turned to Britain for
help. Britain took no action until 1899, almost a century after the origin of the controversy, presenting
a diplomatic claim to the United States, on behalf of the Canadian Cayugas; consequently, the case
was admitted into the 1910 Arbitration Convention’s docket.
1
Howard LeRoy, American and British Claims Arbitration Tribunal, 12 ABA J. 156, 160 (1926)

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B. Contested Doctrinal Background
International law was thought of as a field upon which only sovereign states could be active
subjects; individuals held no active legitimacy in international claims. Individuals, or group, affected
by the actions of a sovereign state had no actual recourse against said state; any and all action must
have been carried out by the state under which they resided. This limitation was even more marked
when it came to indigenous tribes, often labeled as wards of the colonizing state within whose lands
they resided, and recognized as a legal unit only as far as the State’s domestic organization allowed2
.
Meanwhile, as to the norms applicable to controversies, the positive doctrine established the need for
written consent based norms as the supreme source of law; in the international field, these were found
in treaties. Under the positive norm ought to be interpreted in accordance to their textual form. Only
when this was unclear, should the adjudicator resort to other means of interpretation.
III. PROCEEDINGS BEFORE THE COURT
A. Incidental Proceedings
As a consequence of Great Britain’s claim before the Tribunal, the United States raised the
preliminary question of the barring clause contained in Article V of the 1853 Arbitration Treaty.
According to this article, in regards to any claim existing at the time of the Treaty’s ratification “[t]he
High Contracting parties engage[d] to consider […] that every such claim, whether or not […] laid
before the said commission, shall, from and after the conclusion of the [commission’s proceedings] be
considered barred, and thenceforth inadmissible.”3
The United States argued that having this
controversy arisen long before the 1853 Treaty, and as Britain failed to bring it before the first
Arbitration Commission, the issue was barred, and inadmissible before the Tribunal. Despite the
preliminary nature of this issue, and the obligation imposed upon the Tribunal by the Terms of
submission incorporated into the Claims Schedule to resolve first any question pertaining to the Treaty
Bar, the Tribunal opted to set it aside and enter evaluation upon the merits of the case first.
B. Pleadings of the Parties before the Court
Great Britain, on behalf of the Canadian Cayugas, presented two alternative claims pertaining
to the payment of the annuities: “(1) that the Cayugas in Canada […] are the Cayuga Nation, covantees
in the Treaty of 1795, and that they, or Great Britain on their behalf, should receive the whole amount
of the annuity from 1810 to [1926…]; (2) in the alternative, that the Canadian Cayugas, as part of the
posterity of the original nation, […] have a proportion of the annuity for the future, and a proportion
of the payments since 1810, to be ascertained by reference to the relative numbers in the United States
and Canada for the time being.”4
Britain’s arguments, in order to properly bind the United States as
responsible for the petitioned remedy, also relied Article IX of the Treaty of Ghent, signed by both
2
Carlo Focarelli, International Law as a Social Construct: The Struggle for Global Justice (Oxford University Press,
2012); Jeremie Gilbert, Indigenous Peoples’ land Rights under International Law: From Victims to Actors
(Transnational Publishers, 2006); Cherokee Nation v Georgia, 30 UNITED STATES1 (1831)
3
British-American Diplomacy Convention of 1853 Between Great Britain and the United States
4
Cayuga Indians (Great Britain v United States) (Awards) (1926) 6 RIAA 173

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States, “by which the United States agreed to restore to the Indians with whom that Government had
been at war <<all the possessions, rights, and privileges which they may have enjoyed or been entitled
to>> in 1811 before the war”5
. The annuity payments, Great Britain argued, were part of the
possessions, rights and privileges enjoyed by the Canadian Cayugas prior to the War, as evidenced by
the payment receipts. Finally, Britain pleaded the right of the Canadian Cayugas to share in a
percentage of all future annuity payments.
Meanwhile, the United States claimed that by relocating outside of the country, the Canadian
Cayugas had “surrendered all claim or interest in the annuity funds and property of the said Cayuga
Nation of Indians”6
This allegation was based on a statement by Peter Wilson, an educated Cayuga
from the New York tribe, who at the time of the legislative hearings claimed a mutual agreement under
which the Canadian Indians would no longer participate in the annuity payments”. On the alternative,
the United States implored the Tribunal to forgo all application of the Ghent Treaty’s Art IX’s second
provision7
, claiming it to be of nominal importance, and not meant for any particular application.
C. Decision of the Court
After evaluating the arguments presented by both parties, the Tribunal determined the
Canadian Cayugas were entitled to a portion of the annuity payments. After examining the provisions
of multiple arbitration treaties between the United States and Great Britain, the Tribunal recognized
that “something more than strict law must be used in the ground of decision of arbitral tribunals”8
,
finding it necessary to recur to the contextual and teleological substance of the Treaties9
so as to
properly deal with the Cayuga’s anomalous situation10
. Citing Merignhac, it expressed that the
application of international law in conflict resolution should be complemented by equity, and that
international law should be understood as a set of general legal principles, as opposed to an inflexible
set of written norms.
Despite decreeing that no liability could be imposed upon the United States by means of the
Treaty of 1795, which could in no way be construed as a Federal Treaty, the Tribunal held that the
United States could be held liable under the Treaty of Ghent. After evaluating Art IX, the Tribunal
emphatically rejected the US’s arguments, stating that as canon of all legal systems, a clause must be
interpreted so as to give it, not deprive it of, meaning. Instead, it interpreted the clause as “a promise
to restore the situation in which [the Canadian Cayugas] received their share of the money covenanted
to be paid to the original undivided nation.”11
The Tribunal also rejected the contention that the
Canadian Cayugas has willingly surrendered all claim to the annuities, pointing out that all their
actions, before and after Wilson’s alleged agreement, demonstrated their continued interest in
5
Id.
6
Id.
7
“The United States engage to […] restore to such tribes or nations, respectively, all possessions, rights or privileges
which they may have enjoyed or been entitled to in [1811], previous to such hostilities.” Id., 184
8
Id., 180
9
Anthony Aust, Modern Treaty Law and Practice (2d ed., Cambridge University Press, 2007)
10
Due to their domestic dependency status
11
Cayuga Indians Case, supra, at 184

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recovering said right. Thus, it decreed the referred article to stand as the strictly legal basis for their
decision, and the imposition of responsibility upon the US.
Pertaining to Art V of the 1853 Treaty, the Tribunal decided the barring clause was not of
application in the current case, understanding that the case had not matured enough to be presented
before the first Commission. The case against the United States did not arise until 1860, after all
domestic recourse was exhausted within New York. While the Tribunal recognized the presence of
laches on behalf of Britain, it declared “[o]n the general principles of justice […] prescription does
not run against those who are unable to act.”12
In the end, the Tribunal determined that leaving the
annuity payments from 1811 to 1849 as they were, thus denying the Canadian Cayugas a participation
in these, to be sufficient protection to the United States’s interests. In regards to Great Britain’s claim
that the Canadian Cayugas share in a percentage of all future annuities, the Tribunal declared itself
without jurisdiction on the matter, stating its competence was limited to the concession of a monetary
award based upon past payments.
IV. INTERNATIONAL LAW AND THE DECISION OF THE COURT
The Cayuga Indians Case of 1926 touches upon two important aspects of international law.
The first of these issues is the degree of recognition of individuals as subjects of international law, with
rights that must be respected by states. Though the Tribunal in this case determined “the Cayuga Nation
and the Cayugas as individuals had no legal status under international law”13
and there continues to
be certain resistance to the recognition of indigenous tribes as autonomous legal units14
, we agree that
“the growth of international human rights law has challenged this view, calling for the modernization
of classical international law to make individuals, as well as groups of individuals, beneficiaries of
international [rights]15
.” A preview of this movement was seen in the Cayuga Indians Case, having
expressed the Tribunal that so as to avoid a grave injustice, equity required that the “corporate fiction”
be displaced, and the individuals behind it (the Canadian Cayugas) be not only recognized, but
protected.
The main aspect of the case, however, involves the application of equity as a means of conflict
resolution of equal validity to positive norms. Equity may be defined as “the fair and reasonable
administration of justice, and as a way to resolve conflicts by means other than the text of the law.”16
Whether seen as an integral part of positive law, or as something existing apart from the law, it allows
for the gap between law and justice to be reduced in a specific case17
. Its origins as a source of
international norm are found in Art. 38 of the Statute of the International Court of Justice18
. Here equity
12
Id, at 189
13
Ricardo Pereira and Orla Gough, Permanent Sovereignty over Natural Resources in the 21st
Century, 14 MJIL 2
(March 2014)
14
Carlo Focarelli, supra.
15
Pereira and Gough, supra.
16
Francesco Francioni, Equity in International Law, in Max Planck Encyclopedia of Public International Law (Oxford
University Press, 2013)
17
Ruth Lapidoth, Equity in International Law, 22 Isr. L. Rev. 161 (1987)
18
United Nations, Statute of the International Court of Justice, Art. 38.1, 18 April 1946, available at:
http://www.refworld.org/docid/3deb4b9c0.html [accessed 16 November 2015]

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may be conceived as a means of treaty interpretation under the category of general principles of law
recognized by civilized nations, subdividing into inter legem, praeter legem, and contra legem;19
or in
its ex aequo et bono nature, as a power of resolution conferred to Courts and Tribunals when there is
no positive law law present20
.
The role of equity and its validity as a source of international doctrine has been debated
throughout the years. LeRoy, American Secretary for the Arbitration Tribunal that resolved the Cayuga
Indians case, for example, criticized the way equity was applied by the Tribunal, in complete disregard
for the clear text of the barring clause, and in favor of individuals, despite the fact that (at the moment
of the claim) international law belonged solely to the States21
. Lapidoth also criticizes the use of equity
as foundation for dispute resolution fearing its subjective nature, and believing its application to depend
solely on the discretion and sentiment of the official applying it. Recurring to pure equity as the sole
source of law impair the reliability of international law, opening the gate to undesired loopholes in
regards to the application of positive law. Despite this, the professor maintains that, as a conciliatory
mean, equity is most useful as a means of bridging the gap between positive law and moral fairness,
and allowing for a balanced resolution of international disputes- as seen in the Cayuga Indians Case22
.
Another critical view of equity’s role is espoused by Professor Lowe, who
V. CONCLUSION
19
Francioni, supra; Vaughn Lowe, The Role of Equity in International Law, 4 AU YIL 54 (1989)
20
Francioni, supra; Vaughn, supra; Lapidoth, supra;
21
Leroy, supra.
22
Lapidoth, supra; Wolfgang Friedman, International Law in the Twentieth Century (Appleton Century-Crofts
1969)