Peters v. Tallchief

The proceeding was brought to recover the possession of certain lands, situate on the Tuscarora Indian reservation, in the town of Lewiston, Niagara county, consisting of about 23 acres of farm land, with buildings thereon, and occupied for many years by Jeremiah Peters, a Tuscarora Indian, up to the time of his death in March, 1900. Both the petitioner and the defendant are Tuscarora Indians. The defendant is his daughter and the petitioner is his daughter-in-law. No evidence was given on behalf of the defendant, but she contended, and now insists, that the courts of this state have not jurisdiction, for the reason that the parties to the controversy are Indians, and that the premises are Indian tribal lands. The justice of the peace overruled her objections, and awarded possession of the lands to the petitioner, but, upon appeal, the County Court reversed the judgment, and the petitioner now appeals to this court.

It appears that Jeremiah Peters occupied the premises for upwards of 28 years, claiming to own the same under an allotment thereof made to him by the chiefs or head men of the Tuscarora Indians. After the death of Jeremiah Peters, which occurred in March, 1900, his son, the petitioner’s husband, occupied and claimed to own the premises, the same having been devised to him by his father. The

It is unnecessary to define or classify the precise right that Jeremiah Peters had in the land under the allotment so made to him. That it was a substantial right entitling him to the exclusive possession thereof seems clear. As early as 1854 the Legislature, evidently recognizing the change in the manner and custom of these Indians, permitted allotments of this character to be made by the chiefs (Laws 1854, p. 369, c. 175, § 1), and such an allotment is now sanctioned by the Indian law (Laws 1892, pp. 1575, 1596, c. 679, §§ 7, 90). The same law expressly authorizes a native Indian to take, hold, and convey real property the same as a citizen (section 2), and the right of an Indian under such an allotment of tribal lands has been recognized and protected by our state courts (Jimeson v. Pierce, 78 App. Div. 9 , 79 N. Y. Supp. 3 ). The right of the son and his family to occupy and enjoy the lands so devised to him by his father does not appear to have been questioned by the chiefs or any one else, save the defendant; and she does not seem to have asserted any claim to the property until after the death of her brother. In the absence of any right thereto, I think it clear that the defendant was not justified in ousting the petitioner from the premises as she did, and that the petitioner is entitled to the possession of the lands as against the defendant. The undisputed evidence shows that the defendant intruded into and squatted upon the premises without any right thereto.

The more serious question, however, is whether the petitioner may resort to the courts of this state for the enforcement of her right against the defendant. If she may not have redress in our courts, she appears to be remediless, since the- proof shows that, unlike some of the other Indians, the Tuscarora Indians have no peacemakers’ court or other judicial tribunal of their own to which the petitioner may resort for the enforcement of her right. While these Indians may voluntarily submit matters in controversy to their chiefs, neither party

“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

“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.'

(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

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

“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.”

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.

“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

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 coipe 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

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.