A statute of the State of New York making it unlawful for any
persons other than Indians to settle or reside upon any lands
belonging to or occupied by any nation or tribe of Indians within
that state, and providing for the summary ejectment of such
persons, is not in conflict with the Constitution of the United
States, or any treaty or act of Congress, and the proceedings under
it did not deprive the persons thus removed of property or rights
secured to them by any treaty or act of Congress.
The case is stated in the opinion of the Court, and is reported
in the New York state courts in 18 Barb. 412 and 2d vol. of Smith's
Reports of the Court of Appeals, 203, being 16 New York
Reports.
Page 62 U. S. 368
MR. JUSTICE GRIER delivered the opinion of the Court.
This case is brought before us by a writ of error to the supreme
court of New York under the 25th section of the Judiciary Act. It
had its origin in a proceeding before the County Judge of Genesee
County, instituted by the district attorney against Asa Cutler,
John Underhill, and Arza Underhill, the relators, pursuant to the
provisions of an act of assembly entitled "An act respecting
intrusion on Indian lands," passed March 31, 1821.
This act made it unlawful for any persons other than Indians to
settle and reside upon lands belonging to or occupied by any tribe
of Indians, and declared void all contracts made by any Indians,
whereby any other than Indians should be permitted to reside on
such lands, and if any persons should settle or reside on any such
lands contrary to the act, it was made the duty of any judge of any
county court where such lands were situated, on complaint made to
him, and due proof of such residence or settlement, to issue his
warrant, directed to the sheriff, commanding him to remove such
persons.
Page 62 U. S. 369
On notice to the relators of the institution of this proceeding,
they appeared before the judge and pleaded to his jurisdiction, on
the ground that they had entered and occupied the lands, claiming
title under a written instrument adversely to the Seneca nation of
Indians, and therefore, by the Constitution and laws of the state,
they were entitled to a trial by jury, according to the course of
the common law, and could not thus be removed by summary
proceedings under this act.
This plea was overruled by the judge. The relators then pleaded
that this tract of 12,800 acres, called the Tonawanda reservation,
was not owned by the Seneca Indians; that by a treaty made with the
United States on the 20th of May, 1842, the Seneca nation of
Indians had by indenture set forth in the treaty conveyed to Thomas
Ludlow Ogden and Joseph Fellows this tract of land, with others;
that this grant was duly confirmed by the State of Massachusetts,
pursuant to the provisions of the act of cession made between that
state and the State of New York, on the 16th of December, 1786;
that the whole amount of the consideration stipulated by the treaty
and deed had been paid by said Ogden and Fellows, and that relators
were in possession under said Ogden and Fellows, and adversely to
the Indians. They therefore denied the power and authority of the
judge to determine their right to the lands in their possession, or
to remove them, under the powers conferred by the act of assembly
of New York.
After hearing the parties, the judge decided against the
relators, who removed the proceedings by certiorari to the supreme
court.
The record contains the testimony on both sides, and numerous
documents concerning the treaty with the Seneca Indians, and also
the subsequent proceedings by the officers of the government. It
will not be necessary to a clear apprehension of our decision in
this case to state them particularly, nor is it material to our
inquiry whether the judge may have erred in his decision, that "the
Seneca nation had not duly granted and conveyed the reserve in
question to Ogden and Fellows."
The supreme court and Court of Appeals of New York have
decided,
"that the provisions of this act respecting intrusions
Page 62 U. S. 370
on Indian lands, which authorize the summary removal of persons,
other than Indians, who settle or reside upon lands belonging to or
occupied by any nation or tribe of Indians, are constitutional, and
that a citizen who enters upon their land before their title has
been extinguished, and they have removed, or have been removed by
the act of the government, can acquire no such right of property or
possession as is within the protection of the provisions of the
Constitution which secure a trial by jury."
They therefore affirmed the judgment of the county judge.
The only question which this Court can be called on to decide is
whether this law is in conflict with the Constitution of the United
States, or any treaty or act of Congress, and whether this
proceeding under it has deprived the relators of property or rights
secured to them by any treaty or act of Congress.
The statute in question is a police regulation for the
protection of the Indians from intrusion of the white people, and
to preserve the peace. It is the dictate of a prudent and just
policy. Notwithstanding the peculiar relation which these Indian
nations hold to the government of the United States, the State of
New York had the power of a sovereign over their persons and
property, so far as it was necessary to preserve the peace of the
Commonwealth, and protect these feeble and helpless bands from
imposition and intrusion. The power of a state to make such
regulations to preserve the peace of the community is absolute, and
has never been surrendered. The act is therefore not contrary to
the Constitution of the United States.
Nor is this statute in conflict with any act of Congress, as no
law of Congress can be found which authorizes white men to intrude
on the possessions of Indians.
Is it in conflict with rights acquired by Ogden and Fellows
under the treaty and contract making a part of it? If the treaty of
1842 had been executed; if the United States, in their character of
sovereign guardian of this nation, had delivered up the possession
to these purchasers, then this statute of New York, when applied to
them, would clearly be in conflict with their rights acquired under
the treaty. But by the case it is admitted that the Indians have
not been removed by the United
Page 62 U. S. 371
states. The Tonawanda band is in peaceable possession of its
reserve, and has hitherto refused to surrender it. Unless,
therefore, these persons claiming under Ogden and Fellows have by
the treaty a right of entry into these lands, and as a consequence
to forcibly oust the possessors or turn them out by action of
ejectment, they cannot allege that this summary removal by
authority of the statute of New York is in conflict with the treaty
or any rights secured to the purchasers under it. This proceeding
does not affect their title. The question of the validity of this
treaty to bind the Tonawanda band is one to be decided not by the
courts, but by the political power which acted for and with the
Indians. So far as the statute of New York is concerned, it only
requires that the Indians be in possession; they are not bound to
show that they are owners. They may invoke the aid of the statute
against all white intruders so long as they remain in the peaceable
possession of their lands.
The relators cannot claim the protection of the treaty, unless
they have a right of entry given them by it, before the Indians are
removed by the government. This Court have decided, in the case of
Fellows v.
Blacksmith, 19 How. 366, that this treaty has made
no provision as to the mode or manner in which the removal of the
Indians or the surrender of their reservations was to take place;
that it can be carried into execution only by the authority or
power of the government which was a party to it. The Indians are to
be removed to their new homes by their guardians, the United
States, and cannot be expelled by irregular force or violence of
the individuals who claim to have purchased their lands, nor even
by the intervention of the courts of justice. Until such removal
and surrender of possession by the intervention of the government
of the United States, the Indians and their possessions are
protected, by the laws of New York, from the intrusion of their
white neighbors.
We are of opinion, therefore, that this statute and the
proceeding in this case are not in conflict with the treaty in
question, or with any act of Congress, or with the Constitution of
the United States. The judgment of the Court of Appeals of New York
is therefore
Affirmed, with costs.