People ex rel. Kennedy v. Becker — 165 A.D. 881

Majority

p. 881

The People of the State of New York ex rel. Walter S. Kennedy, Respondent, v. Frederick W. Becker, as Sheriff of Erie County, and The People of the State of New York, Appellants.

Fourth Department,

January 6, 1915.

Headnote

Forest, fish and game—power of State — regulation of hunting and fishing upon lands conveyed by Indians.

When an Indian tribe, with the sanction of the proper Federal authorities, has parted with its rights of occupation and all its interest in lands situated in this State, the right of hunting and fishing thereon is subject to control and regulation by the State.

Mbbbell, J., dissented.

p. 882

Appeal by the defendant, Frederick W. Becker, as sheriff, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 2d day of June, 1914.

The People of the State of New York, by James A. Parsons, Attorney-General, participated in the appeal, both by briefs and on the argument, although no notice of appeal was served by them.

The order discharged Fayette Kennedy, Warren Kennedy and Willis White, Jr., from the custody of said sheriff and from further imprisonment on the ground that certain ancient grants, submissions, agreements, deeds and treaties and particularly the treaty made between the Seneca Nation of Indians and Ogden Land Company, composed of Robert. Morris and others, under date of the year 1797, permitted these said persons who are Indians to hunt and fish in the waters of this State, included within said treaties, particularly Eighteen Mile creek, N. Y., at will, and at all seasons of the year, regardless of the provisions of the Game Laws of the State of New York.

Valentine Taylor, Deputy Attorney-General, and James A. Parsons, Attorney-General, for the appellant People.

Wesley C. Dudley, District Attorney, and Herbert B. Lee, Assistant District Attorney, for the appellant Frederick W. Becker.

George P. Decker [Charles Van Voorhis of counsel], for the respondent.

Robert Morris acquired from the Commonwealth of Massachusetts the right of pre-emption in certain lands in this State, of which the lands where the fishing was done are a part. He also acquired the Indian title under sanction of proper Federal authority, by an instrument in writing dated September 15, 1797 (Report of .Special Committee appointed by Assembly of 1888 to investigate the Indian Problem, p. 131; Assembly Documents, 1889, vol. 7, No. 51, pp. 131-134), by which the Seneca Nation of Indians granted to him, his heirs

p. 883

and assigns forever, said land and all of their right, title and interest therein, reserving to them the privilege of fishing and hunting thereon.

We are of the opinion that the Indians, having parted with their right of occupation and all of their interest in the lands, the privilege of hunting and fishing thereon is subject to control and regulation, by the State. Even assuming that the Indians have the unrestricted right to hunt and fish upon their own reservation without interference by the State, these lands are not within the bounds of their reservation and are in no sense Indian lands. But the question as to whether the Indians have the unrestricted right to hunt and fish upon their own reservation is not involved in this controversy, and that question we do not decide.

The order should, therefore, be reversed, the" writ of habeas corpus dismissed and the three Indians upon whose behalf the writ was granted remanded to the custody of the sheriff of Erie county.

All concurred, except Merrell, J., who dissented. Order reversed, writ of habeas corpus dismissed, and the persons upon whose behalf the writ was issued are remanded to the custody of the sheriff of Erie county.