to a controversy can be compelled to do so, as the proof shows, and there is no claim that the defendant has offered to so submit the matter, evidently for the very obvious reason that she is now in possession of the property, and there is no need of submitting the matter in controversy for determination if she can hold and enjoy the property thus wrongfully taken from the petitioner without being amenable to judicial proceedings. I am, however, of the opinion that the defendant is not beyond the reach of our state courts, and that the petitioner may resort thereto for the enforcement of her right to the possession of these premises against the defendant. Section 5 of the Indian law provides as follows:

"Any demand or right of action, jurisdiction of which is not conferred upon a peacemakers' court, may be prosecuted and enforced in any court of the state, the same as if all the parties thereto were citizens."

As regards certain Indian reservations having courts of their own, provision is made in the Indian law of our state for the enforcement of the determinations of such Indian courts by appropriate proceedings in our state courts (section 53), as was done in the case of Jimeson v. Pierce, above referred to. Such courts have long been maintained by the Seneca Nation of Indians, and are recognized in our Indian law (article 3, c. 679, p. 1582, Laws 1892), but no such provision is contained therein regarding the Tuscarora Indians. While the record itself contains little, if anything, beyond what has already been stated regarding the status of the Tuscarora Indians, it is evident that they are farther advanced in civilization and their tribal relations less intact than that of the larger reservations. In the report of the committee of the Assembly made in 1889, to which both counsel refer, it is stated that they are more enlightened and better educated than any other reservation in the state. They came originally from North Carolina, and acquired their lands by purchase from the Seneca Nation of Indians and the Holland Land Company. These lands, consisting of about 6,000 acres, have been quite generally allotted among the individual Indians, who have occupied and improved the same. To leave these Indians without adequate means for the protection of their rights, thus permitting the indolent and the evil disposed Indians to wrong the thrifty and the honest with impunity, presents a situation so deplorable and disastrous in its consequences that we ought not to reach that conclusion, if it can be avoided. I realize that, if the deficiency is in the law itself, the remedy is with the lawmaking power, and not the judiciary; but the very purpose of the statute in permitting an Indian to resort to our courts in the first instance, or to enforce a determination of a peacemakers' court, was to afford an adequate remedy by a proper judicial proceeding. This is not a case where the petitioner's right of action contravenes some custom or law of the tribe to which she belongs. The proof shows that this property was being held and enjoyed quite in accordance with the customs and practices recognized by the Indians themselves. The question here presented is whether she may resort to our courts to vindicate such right. In Jimeson v. Pierce, supra, where the right to hold in severalty lands upon the Cattaraugus Indian

and 140 New York State Reporter

Reservation was upheld, Mr. Justice Williams, speaking for this court,

says:

"For many years the Legislature has passed laws for the protection of the rights and property of these Indians and the enforcement of such rights under the laws so passed. We see no reason why such laws should not be regarded as valid, and should not be enforced. While it has been frequently held that the Indians cannot come into our courts and bring actions in the absence of acts of the Legislature enabling them to do so, yet it has always been held that they can do so under enabling acts when they have been passed."

I think the petitioner's case is within the provisions of the statute, and that the judgment of the County Court should be reversed, and the final order of the justice of the peace should be affirmed, with costs. All concur, except MCLENNAN, P. J., who dissents.

MCLENNAN, P. J. (dissenting). It seems to me that the decision about to be rendered in this case is not supported by authority; that no well-considered decision can be found which holds that the courts of this state have jurisdiction to settle disputes between Indians residing upon their respective reservations, and which relate solely to the occupancy or possession of the lands of such reservations; and that the reasons assigned for such decision, as recited in the prevailing opinion, are not sufficiently forceful to justify the same. The facts are stated in the opinion of the court with substantial accuracy, and need not be repeated. It may be assumed, as there pointed out, that plaintiff's rights, if measured by the laws of this state applicable to the possession of real property as between citizens, have been flagrantly violated by the defendant; that the equities, as defined by our system of jurisprudence, are with the plaintiff; and that any court should be glad to give relief in the premises if it has the power so to do. The question, however, presented by this appeal is not one of equity; but is: Have the courts of this state jurisdiction in the premises? Or, to be more specific: Has a justice of the peace jurisdiction to determine as between two Indians, both members of the Tuscarora Tribe or Nation and residing upon its reservation, who of such Indians is entitled to the occupancy and possession of a certain part or portion of such reservation? This is a summary proceeding for the recovery of real property, instituted pursuant to the provisions of title 2 of chapter 17 of the Code of Civil Procedure. It was commenced and prosecuted in all respects precisely as if the controversy existed between citizens of this state and related to property exclusively within its jurisdiction. If a dispute between Indians such as is here involved may be settled by our courts, it necessarily follows that all rights or causes of action given by the sections of the Code relating to "summary proceedings to recover the possession of real property" are available to all Tuscarora Indians, and to the members of every other tribe or nation of Indians within the state where a peacemakers' court has not been established and given jurisdiction of the subject-matter, notwithstanding such Indians reside upon their respective reservations, and the dispute between them arises over the possession of a part of such reservations. If a justice of the peace has jurisdiction as between two Indians to determine that one has "unlawfully entered into or squatted upon real property [a part of the

reservation] without the permission of the other," to award possession thereof to one as against the other under subdivision 4 of section 2232 of the Code of Civil Procedure, as claimed by the appellant, and to enforce his judgment in the premises, such justice has equally jurisdiction to determine all disputes arising between Indians respecting the possession of the lands of their respective reservations for any of the causes enumerated in the sections of the Code embraced within the title to which attention has been called; and, if such power exists, it is readily seen that for one cause or another a justice of the peace of a town in which a reservation belonging to Indians is located may award the possession of any part of such reservation to particular Indians without regard to the customs of the tribe or nation or to their laws, which have governed the occupancy of their lands from time immemorial. The claim that the courts of this state have such jurisdiction it seems to me is preposterous. The Legislature never intended such result, and any enactment susceptible of such interpretation would be at variance with the settled policy of the state. in its treatment of Indians residing upon reservations within its borders. The various nations or tribes of Indians have ever been regarded by the state as separate and distinct sovereignties, having the power to negotiate treaties with it, which is the broadest recognition of such sovereignty. As was said by Judge Mullett more than a half century ago, in Dole v. Irish, 2 Barb. 639, 642:

"Still our intercourse with them has been in their national capacity. We have regarded them as nations having some sovereign power, and have permitted them to exercise that power over their own internal affairs. We have not attempted to extend our laws to their domestic relations, or to regulate the manner of their acquiring, holding, or conveying property among themselves. We have never applied our doctrines of descent or distribution to their property, nor subjected them to our laws relating to wills, intestacy, or administration; nor are they applicable to their state of society. So far from interfering with their pecuniary affairs, or subjecting their persons or property to the civil jurisdiction of our courts, we have declared that no action shall be maintained against one of these Indians on his contract."

* *

The whole trend of judicial decision by the courts of this state has been to like effect, practically that we have no jurisdiction over the lands of Indians or to regulate their internal affairs, except as given us by treaty, or such as may be exercised under the police power of the state for their protection, or is reasonably necessary for our protection against their unlawful acts or encroachment. The attempted exercise of jurisdiction by the justice of the peace in this proceeding is in violation of the principle enunciated in Dole v. Irish, supra. Such justice did attempt "to extend our laws * to regulate the manner of their [the Indians'] acquiring, holding, or conveying property among themselves." We are not concerned as to how or in what manner the dispute between the parties to this proceeding might have been settled if relegated to the courts or customs of the Tuscarora Nation. Whether it would have been settled more or less in accordance with the principles of justice it is not important to inquire. By the brief of counsel in the case of Dole v. Irish, supra, we are told "that it is a custom among the Seneca Indians, which has existed from time immemorial, when one of the said nation dies, for the relatives of the de

and 140 New York State Reporter

ceased to meet at his last place of residence 10 days after his death, and divide his property among his relatives," which I assume includes the right of possession. Such method of distribution of a decedent's estate had the merit, at least, of being speedy, final, and inexpensive. We may fairly assume that during the century or more that the Tuscarora Tribe of Indians have occupied their reservation in Niagara county some means has existed for the settlement of disputes between themselves, especially those relating to the occupancy of their tribal lands, which has been reasonably efficient and satisfactory to all concerned. At all events, so far as we can discover, this is the first time that an attempt has been made to settle such disputes in our courts, and such attempt cannot be considered as entirely satisfactory, for it is apparent that the costs and expenses already incurred in this proceeding, and which are allowed by our Code will amount to more than the entire value of the right which it is brought to enforce. This suggestion leads to the query whether or not if final judgment is rendered in plaintiff's favor, adjudging that she is entitled to the possession of the premises in question, such right of possession may not be decreed to be sold and the proceeds applied in payment of the services rendered by her attorney and to which he is entitled by the provisions of the Code under which the proceeding is brought. It would, indeed, be an anomalous situation if such proceeding might be instituted under the sections of the Code to which attention has been called to recover the possession of real property, a valuable right, and, if successful, the costs given by the same statute could not be collected. Yet we fancy it will hardly be claimed that execution could lawfully be issued against either of these parties for the collection of the costs given by the statute. In such case would the provision of the judgment awarding possession of the real property be enforcible, and not the provision awarding costs? Such suggestion indicates the incongruities which would result if it be the rule that our laws relating to the recovery of the possession of real property as between citizens are alike applicable to Indians and to their tribal lands. We can conceive of no good reason for the adoption of such rule, unless made necessary by express statutory provision. I do not believe there is any statute which is properly susceptible of such interpretation. As was said in Dole v. Irish, 2 Barb. 642:

*

"Farther exercise of jurisdiction may still be necessary, until all vestiges of Indian power and Indian rights shall be brought under the broad shield of our civil jurisprudence; but when, and how, it shall become necessary or proper to seize on this dilapidated Indian sovereignty, are questions to be decided by the Legislature, and it does not become the judiciary voluntarily to march forward in such enterprises."

It must be conceded that the justice of the peace in the case at bar was wholly without jurisdiction of the parties or of the subject-matter of the controversy, unless expressly given by statute. Section 2861, Code Civ. Proc. The only legislative enactment by which it is claimed jurisdiction is conferred is section 5 of the Indian Law, which provides:

"Any demand or right of action, jurisdiction of which is not conferred upon a peacemakers' court, may be prosecuted and enforced in any court of the state, the same as if all parties thereto were citizens."

It would seem clear that such provision has reference only and relates solely to an Indian nation in which a peacemakers' court has been established, and was intended to cover only such disputes arising between the members of such nation as such peacemakers' court, through inadvertence or otherwise, had not been given jurisdiction of. The old methods of adjusting such disputes having been abrogated by the creation of a peacemakers' court, it is entirely reasonable that any matter, jurisdiction of which was not given to such court, might be referred to our courts for settlement. The Legislature did not intend by the enactment of such section to oust all other Indian nations in which no peacemakers' court has been established of jurisdiction over their internal affairs. Yet such is the broad scope of the decision about to be rendered. Concededly no peacemakers' court has been established in the Tuscarora Nation, and so, of course, no jurisdiction of anything has been or can be conferred upon it. Yet it is urged that the result of such situation is that the courts of this state are given jurisdiction of all matters relating to the affairs of such nation because of the language of the section. If by such section the courts of this state are given any jurisdiction, even the slightest, their jurisdiction is absolute and extends to every controversy which may arise between the members of such tribe, because such jurisdiction has not been conferred upon a peacemakers' court, for, as stated, no such court has been created.

The majority of this court interpret section 5 of the Indian law above quoted to mean precisely what it would mean if its language

were:

"In all Indian nations within the state in which a peacemakers' court has not been established, all jurisdiction by the members of such nations over their internal affairs is abrogated and is conferred upon the courts of this state."

It is absurd to suggest any limitation of jurisdiction of our courts over "any demand or right of action" in favor of an Indian, a member of and residing in a nation in which no peacemakers' court exists, if the words "peacemakers' court," as used in the section, apply to such nation the same as to one in which such a court has been established. If the meaning of section 5 is as claimed by a majority of the court, by that act the Legislature swept away every vestige of Indian sovereignty in all the nations within the state, except in the Seneca Nation, in which alone a peacemakers' court has been established; for, if jurisdiction of "any demand or right of action" existing between members of a tribe or nation is taken from it and conferred upon our courts, then indeed "all vestiges of Indian power and Indian rights shall be brought under the broad shield of our civil jurisprudence." The only peacemakers' court to which the section relates was established in 1868. in the Seneca Nation. It was created solely for their benefit and purposes. It came into existence by virtue of their amended constitution, "made and adopted in convention assembled duly called and organized in accordance with the provisions of the constitution of said nation, convened at the council house at Cold Springs, on the Allegany reservation, on the 22d day of October, A. D. 1868." In the preamble it is recited: