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and 140 New York State Reporter "We, the people of the Seneca Nation of Indians, residing at Cattaraugus, Allegany and Oil Springs reservations in the state of New York,

do make and establish the following constitution.”

Such tribe or nation thereby voluntarily abrogated and abolished the customs which had existed in that nation for more than a century and by which the internal affairs of such nation had been regulated and the disputes and controversies between its members settled, and, in lieu thereof, by such amended constitution a peacemakers' court was created, its jurisdiction defined, and its method of procedure prescribed. Such amended constitution recognized the desirability of the co-operation of the state of New York in the carrying out and enforcement of its provisions, and it provided :

"The laws heretofore enacted by the Legislature of the state of New York, for the protection and improvement of the Seneca Nation of Indians ; shall continue in full force and effect as heretofore until the statutes of the state of New York shall be repealed or amended by the Legislature thereof."

Section 5 of the Indian law above quoted was not passed until 1892. Suppose that no peacemakers' court had been created before that time in any Indian nation, would it then be contended that the effect of such section was to oust all Indian nations and tribes within this state of jurisdiction to control and manage their internal affairs, to determine who shall occupy and possess their respective reservations, and to transfer jurisdiction of all such matters to the courts of this state? We think that with as much reason it could be urged that in such manner the distinguishing sovereign rights of all such nations, to wit, their power to control and regulate their internal affairs, might be transferred to the courts of this state, as to claim that by such section jurisdiction of the affairs of the Tuscarora Nation is conferred upon our courts simply because the section refers to a peacemakers' court in no manner connected with such nation, and which concededly was given no jurisdiction over their members or reservation.

If I appreciate the argument of the appellant in support of the proposition contended for, it seems to me to be unique. Apparently it is conceded that until the establishment of a peacemakers' court in the Seneca Nation, which was created by amendment to its constitution, all Indian nations within the state had exclusive jurisdiction in the management of affairs solely between themselves or such as related to the occupancy of their respective reservations, and that from time immemorial any disputes were settled in accordance with the customs, laws, or rules adopted by or recognized as in force by such nations. The Senecas, one of such nations, in convention duly assembled, determined to abrogate the customs which had controlled the settlement of disputes for a century or more, and, in lieu thereof, to create a peacemakers' court, to which all matters of difference between members of their nation might be referred for adjudication. Such peacemakers', court, as we have seen, was created by action of such nation and in all respects in conformity to its laws. No other nation or tribe of Indians assumed to establish such court, and all others were clearly unaffected by the amended constitution which created such court for and on behalf of the Seneca Nation. Yet it is urged that because of

the establishment of such court, and because of section 5 of the Indian law above quoted, the jurisdiction of all other nations of Indians within the state over their internal affairs was abrogated, and that the same was transferred to the courts of this state. If the proposition that a justice of the peace of a town within which the Tuscarora reservation is situated has jurisdiction to determine who of the members of such tribe shall occupy such reservation is sound, it applies with equal force to the Onondaga, the Oneida, and to every other nation or tribe of Indians within the state, except the Senecas, where alone a peacemakers' court has been established. In other words, the effect of the decision about to be rendered in this case is to hold that the courts of our state have jurisdiction to determine any and all controversies arising between Indians residing upon their respective reservations within the state of New York, outside of the Seneca Nation, in which a peacemakers' court has been established. Such a claim of jurisdiction, so drastic and farreaching, should, it seems to me, be supported by the highest authority before receiving the sanction of this court.

We are therefore led to inquire whether there are any judicial decisions which support the contention of the appellant in the premises. We will assume, for the purposes of this appeal, that the law, as stated by Mr. Justice Williams in the case of Jimeson v. Pierce, 78 App. Div. 9, 79 N. Y. Supp. 3, is correct. There it was said (page 13 of 78 App. Div., page 6 of 79 N. Y. Supp.):

"While it has been frequently held that 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."

That statement of the law presents the whole question involved upon this appeal, viz.: Did section 5 of the Indian law authorize the plaintiff to come into our courts for the purpose of enforcing her alleged right, and to compel the defendant, against her will, to submit her rights to such jurisdiction ? My contention is that the section has no reference to and confers no right upon a member of the Tuscarora Nation residing upon its reservation to bring an action in our courts against another member of such tribe against his will and protest.

None of the cases cited by appellant's counsel support the proposition contended for. In the case of Crouse v. N. Y., Penn. & Ohio R. R. Co., 49 Hun, 576, 2 N. Y. Supp. 453, it was simply held that where an Indian, a member of the Seneca Nation, comes into our courts to seek redress against a citizen of our state and is unsuccessful, a judgment for costs awarded against him may be collected out of his individual property. In the case of Jemmison v. Kennedy, 55 Hun, 47, 7 N. Y. Supp. 296, it was objected that the action, which was for assault and battery between two Indians, had been brought by attorneys other than the "attorney of the Seneca Nation of Indians," in violation of section 2, c. 150, p. 147, Laws 1845. It was held that such objection was not available because, by section 14, c. 365, p. 468, Laws 1847, it was provided that any Indian of said nation who had any demand or right of action which exceeded the amount which might

hem the demand that case indian had

Co., 162 the property. Thand wrongful refie

and 140 New York State Reporter be awarded by the peacemakers was authorized to maintain and prosecute the same in the courts of this state, “in the same manner and with like effect as between white citizens.” In the case of Singer Mfg. Co. v. Hill, 60 Hun, 347, 15 N. Y. Supp. 27, it was held that a citizen of this state might maintain an action of replevin against an Indian to recover property the possession of which such Indian had obtained under a contract of conditional sale. In that case it was held that the right of action arose upon the demand and wrongful refusal of the defendant to give up the property. The case of Johnson v. Long Island R. R. Co., 162 N. Y. 462, 56 N. E. 992, cited by appellant's counsel, can in no way be regarded as a decision in support of the proposition for which he contends. No decision has been called to our attention by appellant which holds that our courts have jurisdiction of a controversy such as the one here involved. The Tuscarora Indians from time immemorial, through their chiefs or head men, have had jurisdiction to divide their lands among the members of the tribe, and it seems to me clear that the courts of this state have not jurisdiction to issue a warrant of dispossession against a member of such tribe in an action between themselves and which might practically annul any allotment made by their chiefs or head men.

My conclusion of the whole matter is that the courts of this state have not jurisdiction as between members of the Tuscarora Nation to determine who shall occupy or are entitled to possession of its tribal lands; that section 5 of the Indian law, when properly interpreted and construed, does not confer or attempt to confer such jurisdiction; and that, if susceptible of such interpretation, it is void because of the treaty rights of the Tuscarora Nation of Indians.

. It follows, according to my view, that the County Court was right in reversing the decree or judgment of the justice of the peace, and that the judgment appealed from should be affirmed, but without costs as against the appellant Indian, for the reason that this court has no authority to award costs in such case.

(121 App. Div. 322.)

In re PRINTUP'S ESTATE. (Supreme Court, Appellate Division, Fourth Department. September 25, 1907.) 1. INDIANS–JURISDICTION OVER RESERVATIONS.

Indian Law, Laws 1892, p. 1575, c. 679, § 5, provides that any demand or right of action by an Indian, jurisdiction of which is not conferred on a peacemakers' court, may be enforced in any court in the state the same as if all parties were citizens. Decedent was an Indian residing on the Tuscarora Indian reservation, and after his death his widow and children, also Indians, petitioned the Surrogate's Court for the appointment of an administrator of his estate, alleging that no administrator had been appointed, that it was essential for the protection of creditors and the preservation of the personal estate that letters issue, and that the Tuscarora Indians had no peacemakers' court. Held, that if petitioners were without remedy to enforce their right, if any, for lack of a peacemakers' court or other Indian tribunal, section 5 was broad enough to give the Surro

gate's Court jurisdiction. 2. ADMINISTRATORS-LETTERS OF ADMINISTRATION-PERSONS ENTITLED.

Under Code Civ. Proc. & 2660, declaring the order in which adminis tration shall be granted, a person nominated in the petition for appoint

ment as administrator, not being of the next of kin, or a creditor of decedent, is not entitled to appointment in preference to the county treasurer, who is the public administrator, without being joined with others who have a right to such appointment prior to the public administrator.

McLennan, P. J., and Robson, J., dissenting. Appeal from Surrogate's Court, Niagara County.

Petition by Elizabeth Printup, the widow, and Charles Printup and others, sons of Daniel J. Printup, deceased, that letters of administration on the estate of decedent be issued to the person therein nominated. From a decree of the Surrogate's Court dismissing the petition for want of jurisdiction, petitioners appeal. Reversed, and remitted for a rehearing and further action by the Surrogate's Court.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

Dilworth M. Silver, for appellants.
William E. Lockner, for respondent.

KRUSE, J. The deceased, Daniel J. Printup, died intestate on or about June 20, 1906, a resident of the county of Niagara, leaving personal property exceeding in value the sum of $250, and the value of all the real estate of which he died seised, wherever situate, as is stated in the petition, will exceed $2,000. His debts aggregate upwards of $500, and his son, Eleazar Printup, who is the sole contestant in this proceeding, was indebted to the deceased at the time of his death in the sum of $1,200 and upwards, as adjudged in an action in the Supreme Court of this state, in which Moses Printup and others were plaintiffs and Eleazar Printup was defendant. The decision was filed in the Niagara county clerk's office on or about October 27, 1906, although the petition does not affirmatively show that judgment has been entered thereupon. The deceased was an Indian residing upon the Tuscarora Indian reservation, which is located in the county of Niagara, and the widow and children are likewise Tuscarora Indians. The petition alleges that no administrator has been appointed by any court, that it is essential for the protection of the creditors of the estate and the preservation of the personal estate that letters of administration be issued, and that the Tuscarora Indians as a nation have no peacemakers' courts or Surrogate's Courts. None of these allegations are denied.

It is contended that the contestant's affidavit establishes that he and his brothers and the widow belong to a tribe of Indians having a separate Indian tribal or governmental organization, owing no allegiance to any other government, and not subject to our laws, and that the Indian council has exclusive jurisdiction to administer upon the estate. No oral proof or other evidence, save the affidavit of the contestant, was taken before the surrogate, and the surrogate made no findings of fact as to whether the Tuscarora Indians have any peacemakers' or Surrogate's Court, or any other judicial tribunal of their own, having the right or assuming to administer upon the estates of Indians belonging to that tribe, and we think this contesting affidavit is so general and unsatisfactory that of itself it furnishes no sufficient basis for such a finding. The case of Dole v. Irish, 2 Barb.

and 140 New York State Reporter 639, relied upon by the surrogate, is quite unlike this case. It there appeared that the deceased was an Indian belonging to the Seneca. Nation; that it was a custom among the Seneca Indians at that time that, upon the death of one of the members of the tribe, his relatives would meet at the last place of residence of the deceased within 10 days after the death, and divide his property among themselves; that such a division was made including the property in question before the granting of letters of administration; but there is no proof here of any such custom among the Tuscarora Indians.

Counsel for the respondent in his brief states that the absence of a Surrogate's Court does not seriously handicap the Tuscaroras, as their wills by immemorial custom take effect like deeds at the death of the testator, and, in cases of intestacy, the heirs simply take possession of the land by the common or state law of descent, and if there be personalty divide it among the next of kin; that often relatives employ a white attorney to explain the state law of distribution to them, so that they may fully understand it; and that, where there are debts and a desire to pay them on moral grounds, the chiefs on request will take the estate through the regular course of Indian administration, whatever that may be. What happens in case of a controversy is not stated. I think it will be found upon an examination of the cases, both state and federal, where the courts have declined to take cognizance of controversies between Indians, such decisions rest upon the fact that the Indians to the controversy belong to tribes which have governments of their own regulating their internal affairs. But, where they have ceased to regulate their own affairs, with no judicial tribunals of their own, no good reason exists for denying to one Indian who has been wronged by another redress in our courts, and so the Legislature has from time to time passed laws permitting resort to be had to our courts where there is no Indian governinent, or it is inadequate to protect the Indians in the enjoyment of their rights. As early as 1847 an act was passed for the protection and improvement of the Seneca Indians, as its title indicates, which provided that one Indian may maintain an action against another under circumstances therein stated (Laws 1847, p. 468, c. 365, § 14); and section 5 of the present Indian Law, which is general in its terms, applying to all Indians, provides that 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 (Laws 1892, p. 1575, c. 679). Native Indians may not only hold and convey real estate, but are liable upon their contracts. Laws 1892, p. 1574, c. 679, § 2.

The widow of the deceased and all of his children save one, join in this appeal, and he is indebted to the estate, and is therefore interested in defeating any proceeding which will compel him to pay the debt which he honestly owes. If the appellants have any claim or claims, and are without remedy for the enforcement thereof for lack of a peacemakers' court or other Indian judicial tribunal, I think they have a right to resort to our courts for the enforcement of that right, and that the provisions of this section are broad enough to give the Surrogate's Court jurisdiction in a proper case.

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