Blacksmith v. . Fellows , 7 N.Y.3d 401 ( 1852 )

The first point made on behalf of the appellants, is that the plaintiff in the court below could not maintain an action individually for trespass on land belonging to the Seneca nation of Indians: the bill of exceptions shows that the plaintiff is a native Indian belonging to the Tonawanda band of the Seneca nation: that the close mentioned in the second count of the declaration is situated in the town of Pembroke in the county of Genesee, upon the tract of 12,800 acres, commonly known and designated by the name of the Tonawanda reservation: that the close in question is and was at the time of the entry complained of, and at the time of the commencement of the suit, an Indian improvement upon said Tonawanda reservation: that the said improvement was made about twenty years before the trial by the plaintiff and seven other Tonawanda Indians: that the plaintiff has resided on the Tonawanda reservation with the same band from his birth: that he was in the actual possession of said improvement at the time of the entry complained of: that on the 13th day of July 1846 the defendants entered into and took possession of the said close and turned the plaintiff out, and in doing this committed an assault upon him.

I am not aware of any legal impediment in the way of the plaintiff's sustaining the action under such a state of facts. He was in possession of the close, and for the purposes of this question his possession is to be deemed rightful, and the defendants had no right to disturb him. The fact that he was an Indian, it seems to me, should not disqualify him from seeking redress in our courts in the ordinary way for such an injury. We are not informed by the case what were the particular relations of the individuals of his tribe or nation with each other respecting the rights of property, in regard either to real or personal estate; whether they held all things in common or whether the title or right of property in respect to each other was in the individuals or the nation, or in the particular tribes or bands. It seems to me it would not do to hold an individual of the nation incapable of sustaining an action for an injury to his person or his personal property, committed by a citizen of our government; and it will be difficult upon principle, I apprehend, to distinguish between such a case and that of an intrusion without right upon his possession of land.

The general rule is that the person in possession must bring the action for trespass on land; and it appearing that the plaintiff was in the actual possession of the close in question at the time of the injury complained of, it seems to me it was competent for him to commence and sustain the action.

Provision is made in section eight of the act entitled "An act in relation to certain tribes of Indians," passed May 25th, 1841 (ch. 234 of Sess. L. of that year), by which actions for trespasses on Indian lands may be brought in the name of the people of this state, or by any three chiefs of the tribe. But this does not, as I think, deprive an individual Indian of his common law right to sustain an action for a like injury. The act, I suppose, was designed to furnish additional facilities for preventing such trespasses, and additional protection to the Indians.

The foregoing remarks are designed of course to apply to the case as the facts appeared at the trial when the plaintiff rested, and before the evidence of the title of the defendant Fellows had been introduced.

But it is further contended on behalf of the defendants, that the defendant Fellows had the legal title in fee in the premises, and therefore had the right to enter upon and take possession of them and to oust the plaintiff therefrom.

The second plea of the defendants sets up this defense on the part of the defendant Fellows, and that the defendant Kendle, at the time, when, c., acted as the servant of Fellows and by his command, c.

The replication simply takes issue upon the title of Fellows. If that issue was maintained by the proof, the justice before whom the action was tried, erred in ruling the contrary, and the judgment in the court below should be reversed.

At the close of the evidence the plaintiff's counsel objected to the proof of title in Fellows, claiming that such proof was defective in twelve particulars, which were specified. The circuit court decided and ruled generally without passing upon the objections separately, that the defendants had failed to establish any right or title to the close in question in the defendant Fellows.

The defendant Fellows claimed title to the premises by purchase from the Seneca nation of Indians; to sustain which he gave in evidence, among other things, an indenture purporting to have been made and concluded between Thomas Ludlow Ogden and Joseph Fellows, of the one part, and the chiefs and headmen of the Seneca nation of Indians, of the other part, at a council duly assembled and held at Buffalo creek in the state of New York, on the twentieth day of May 1842, by which the said chiefs and headmen did, among other things, grant, release and confirm unto the said Ogden and Fellows, their heirs and assigns, in joint tenancy, the two tracts of land severally called the Buffalo Creek reservation and the Tonawanda reservation, and all the right and interest therein of the said nation. For which Ogden and Fellows were to pay to the nation a just consideration to be estimated and ascertained as follows: Assuming the value of the said two reservations, together with the Cattaraugus and Allegany reservations (for the purchase of all four of which tracts or reservations by Ogden and Fellows from the nation a previous agreement had been made), to be deemed and taken to be $202,000, of which sum $100,000 should be deemed to be the value of such title in and to all the lands within the four tracts, exclusive of improvements thereon, and 102,000 to be the value of the improvements within the said four tracts; and of the said sum of $100,000-Ogden and Fellows were to pay to the Seneca nation such proportion as the value of all the lands within the Buffalo Creek and Tonawanda reservations should bear to the value of all the lands within the four tracts; and of the $102,000 they should pay such proportion as the value of the improvements on the two tracts should bear to the value of the improvements on all the four tracts. Such consideration to be determined by the judgment and award of arbitrators, one to be named by the secretary of war and one by Ogden and Fellows, which arbitrators might employ suitable surveyors to explore, examine and report on the lands and improvements, and to ascertain the contents of each of the said tracts. The indenture also provided that the same arbitrators should also award and determine the amount to be paid to each individual Indian out of the sum, which on the principles above stated they should ascertain and award to be the proportionate value of the improvements on the Buffalo Creek and Tonawanda reservations, with provision for chosing an umpire in case of disagreement between the arbitrators. The arbitrators were to make a report in writing of their proceedings in duplicate, one to be filed in the office of the secretary of war and the other to be delivered to Ogden and Fellows. The fifth article of this indenture is in the words following: "Article fifth. It is agreed that the possession of the two tracts hereby confirmed to the said Ogden and Fellows shall be surrendered and delivered up to them as follows, viz: The forest or unimproved lands on the said tracts within one month after the report of the said arbitrators shall be filed in the office of the department of war, and the improved lands within two years after the said report shall have been so filed, provided always, that the said amount to be so ascertained and awarded, as the proportionate value of the said improvements, shall on the surrender thereof be paid to the president of the United States to be distributed among the owners of the said improvements according to the determination and award of the said arbitrators in this behalf; and provided further, that the consideration for the release and conveyance of the said lands shall, at the time of the surrender thereof, be paid or secured to the satisfaction of the said secretary of the war department, the income of which is to be paid to the said Seneca nation of Indians annually. But any Indian having improvements may surrender the same, and the land occupied by him and his family, at any time prior to the expiration of the said two years upon the amount awarded to him for such improvement being paid to the president of the United States, or any agent designated by him for that purpose, by the said Ogden and Fellows, which amount shall be paid over to the Indian entitled to the same, under the direction of the war department."

The indenture contained various other articles and provisions, none of which are necessary to be stated in the present connection.

On the same day on which the indenture was made and bears date, and at the same place, a treaty was made and concluded between the United States by Ambrose Spencer their commissioner thereto duly authorized, on the one part, and the chiefs, headmen and warriors of the Seneca nation of Indians, duly assembled in council, on the other part; reciting among other things the said indenture verbatim and consenting to the several articles and stipulations contained therein between the said nation and the said Ogden and Fellows, and providing that the United States would receive and pay the sum stipulated to be paid as the consideration money of the improvements specified in the indenture, and would receive, hold and apply the sum to be paid or the securities to be given for the lands therein mentioned as provided for in such indenture.

In pursuance of this treaty and of the indenture incorporated therein, Thomas C. Love was appointed by the secretary of war and Ira Cook by Ogden and Fellows arbitrators to discharge the duties in the indenture specified. On the first of April 1844, their report and award in the premises, bearing date March 26, 1844, was received and filed in the office of the war department, by which report and award it appears that they had agreed upon all the matters in and by the said indenture submitted to them. That they had determined, adjudged and awarded that Ogden and Fellows should pay to the Seneca nation the sum of $75,000 for the Indian title to all the lands in the Buffalo Creek and Tonawanda reservations, and that they should pay the said nation $58,708.96, as the value of the improvements on the two last mentioned reservations. They also determined the amount to be paid to each individual Indian on the Buffalo Creek reservation for his improvement. The report of the arbitrators as well as the oral evidence given on the trial shows that they the said arbitrators attempted to go upon the Tonawanda reservation with surveyors and other assistants for the purpose of making the necessary surveys and examinations in order to determine the amount to be paid to each individual Indian in pursuance of said treaty and indenture, and that they actually went upon the said reservation for that purpose, and were about commencing their work when a large number and nearly all of the adult Indians residing thereon being assembled, and among them the plaintiff, the arbitrators were forbidden by the plaintiff and others, and prevented from proceeding in such work, and were ordered to leave the reservation, and the arbitrators were each taken by the arm by the plaintiff and led off beyond the line of the reservation and that such acts of the plaintiff and others of such Indians in preventing the arbitrators from the performance of their duties in this respect were in pursuance of a unanimous resolve of all the Indians so assembled.

The case shows that Ogden and Fellows have duly paid the whole of all the moneys awarded by the arbitrators to be paid by them for the title and improvements of both the Buffalo Creek and Tonawanda reservations.

It was admitted on the trial that Thomas L. Ogden died in December 1844, which was previous to the alleged trespass. As the grant in the indenture was to Ogden and Fellows as joint tenants, whatever title they derived thereby, upon the death of Ogden, survived to Fellows.

The supreme court at general term refused a new trial, holding that the determination and award of the arbitrators of the amount due to each individual Indian, in pursuance of the provisions of the indenture, was a condition precedent to the vesting of the title in Ogden and Fellows, who accepted the grant subject to that condition, and undertook the risk of its performance; and that inasmuch as it had never been performed their title had not vested.

I am inclined to the opinion that the provision in the indenture for the appraisement of the value of the improvements of each individual Indian, is not to be regarded as a condition of the grant. By the second article of the indenture the chiefs and headmen of the nation, "Do grant, release and confirm unto the said Thomas Ludlow Ogden and Joseph Fellows and to their heirs and assigns in joint tenancy the whole of the said two tracts of land, severally called the Buffalo Creek reservation and the Tonawanda reservation, and all the right and interest therein of the said nation." The words "release, grant andconfirm," are effective to pass the title, and sufficient for that purpose. They amount to a conveyance in presenti. The consideration for the grant is stated to be certain facts recited therein, the agreement of Ogden and Fellows mentioned in the first article and the agreement next therein after contained which is for the payment by Ogden and Fellows of the purchase money, the amount to be determined by the arbitrators as before stated. The payment of the purchase money in an instrument containing terms equivalent to a grant of the lands, in order to amount to a condition of the grant must be so provided, showing that to have been the intention of the contracting parties. In the present case it is provided in the fifth article of the indenture, and as I think as a condition of the grant, that the gross amount to be ascertained and awarded as the proportionate value of the improvements, should on the surrender of the lands be paid by Ogden and Fellows to the president of the United States, who was to distribute the same among the individuals entitled thereto, according to the determination of the arbitrators; and also that the consideration for the release and conveyance of the lands should at the same time be paid or secured to be paid to the satisfaction of the secretary of war, the income of which was to be paid to the said nation annually. These conditions have been complied with by the purchasers. Ogden and Fellows had no interest whatever in the proportion of the improvement money to which any individual Indian should be entitled. The arbitrators were to determine the gross amount of the improvement money, and that was all which Ogden and Fellows were interested in knowing. This the arbitrators did, and upon the payment of the amount, together with the other part of the purchase money by Ogden and Fellows, their title and their right to possession of the forest or unimproved lands became complete in one month after the filing of the report of the arbitrators, and to the improved lands in two years. The question of the distribution of the money among the individual Indians, was between them and the United States government, in which, as before remarked, Ogden and Fellows had no interest, and in reference to which they had no duty to perform except the payment of the money to the president of the United States. That could be done when the gross amount of the value of all the improvements was ascertained and not before. The ascertainment by the arbitrators of the amount to be paid for the title and improvements naturally, if not necessarily, preceded the division among the individuals of the tribes, of the improvement money, which Ogden and Fellows could neither hasten or retard; and they were not bound to wait for it to be done before paying their money and perfecting their title. For aught that appears the division may yet be made by the same arbitrators, and there is no reason for doubting their readiness to perform that part of the duty referred to them, whenever those most interested in having it done will consent. If the plaintiff and his brethren of the Tonawanda band have not received the pay for their improvements, it is most probably attributable to their own The plaintiff appears to have been among the foremost in preventing the arbitrators from completing their work, and from doing that part of it which he now complains has not been done. Beyond a doubt he should be held estopped from alleging, as a defect in his adversary's title, an omission which he has deliberately contributed in procuring.

Other objections are now made to the title of Ogden and Fellows.

It is contended that there was no evidence upon the trial to show that the individuals assuming to act as chiefs and headmen of the Seneca nation were in fact authorized by the individuals of the nation to execute the indenture. It is sufficient to say that the indenture was incorporated into and formed a part of the treaty of 1842. It was made at the same council of chiefs and headmen at which the treaty was made. It was in fact the basis of the treaty. The individuals representing the nation at that treaty were then and have been since repeatedly accredited and recognized by the United States government, as the ambassadors and agents of the nation for all the purposes of the treaty. When the treaty-making power of one government has accredited the enjoy of another, and treated with him as such, it is a fundamental principle that the courts of the former can not inquire into the authority of the envoy. The treaty is conclusive as to the authority of the persons assuming to represent the nation. The question of authority is one for the political department of the government to decide, and being so decided the judicial department can not review the decision.

The Indian tribes and nations within the bounds of the different states and territories of the United States have been regarded and treated by the general government as distinct nations, and treaties have in numerous instances been held with them as such, and treaties thus made have always been considered as solemn and binding upon the government and its citizens as treaties with other governments, or as acts of congress. A number of treaties have been made by the United States with this same Seneca nation, at all of which they have been regarded as a government of chiefs and headmen, and have been invariably represented in such treaties by such chiefs and headmen, or by chiefs, headmen and warriors, or by chiefs and warriors.

I forbear any further notice of the objections raised upon the argument against the validity of the title of Ogden and Fellows, as it seems to me they are all sufficiently answered in the several views already presented. I have regarded the one discussed by the supreme court, and upon which they held that title defective, to be the most important, and have confined myself mainly to its examination.

I think for the reasons mentioned that the decision of the supreme court was erroneous, and that the judgment should be reversed and a new trial granted, with costs to abide the event.

After the reading of the foregoing opinions, on motion of GARDINER, J., the following resolutions were adopted: RUGGLES, Ch. J., GARDINER, JEWETT, JOHNSON, EDMONDS and WATSON, JJ., voting in the affirmative, and WELLES, J., in the negative. GRIDLEY, J., was absent.

Resolved, 1. That the plaintiff, as an individual, had the right of possession and was in the lawful occupancy of the locusin quo, at the time of the alleged trespass. That this right of occupancy was recognized by the fourth, fifth and seventh articles of the treaty of the 20th May 1842, mentioned in the bill of exceptions in this cause, and under which the defendants claim title.

2. That by the true construction of that treaty, the plaintiff could not be lawfully ejected from or deprived of the possession of the lands occupied by him, for the time and in the manner stated in the bill of exceptions by the defendants, until the amount he was entitled to receive for his improvements "as an individual Indian," should be determined by "the judgment and award of arbitrators, one of whom should be named by the secretary of the war department of the United States, and one by Ogden and the defendant Fellows," in pursuance of the fourth article of said treaty.

3. That consequently the making of such determination and award, and the filing of the same in the department of the secretary of war, in the manner prescribed by the fourth article of the treaty was a condition precedent to a right of entry upon the part of the defendant Fellows, as survivor of T.L. Ogden, upon the locus in quo in the possession of the plaintiff.

4. That the acts of the plaintiff and others of the Tonawanda band of Indians, in resisting the entry of the arbitrators upon their reservation for the purpose of appraising the value of their improvements in their possession respectively, did not excuse Ogden and Fellows from a compliance with the condition precedent aforesaid: 1st, because said Indians, as individuals, were not parties to the compact and treaty aforesaid; and, 2d, because it was not shown by the evidence in the case that an appraisal and award could not have been made by the arbitrators without such entry.

Judgment affirmed.