1. Where Indians, being in possession of lands, their ancient
and native homes, the enjoyment of which, "without disturbance by
the United States," has been secured to them by treaty with the
federal government, with the assurance that "the lands shall remain
theirs until they choose to sell them," the state in which the
lands lie has no power to tax them, either for ordinary town and
county purposes or for the special purpose of surveying them and
opening roads through them.
The case of The Kansas Indians
(
supra, p. <|72 U.S. 737|>737), approved.
2. A statute of a state authorizing a sale of such lands for
taxes so laid is void, even though the statute provide that "no
sale for the purpose of collecting the tax shall in any manner
affect the right of the Indians to occupy the land."
3. Where Indians, under arrangements approved by the United
States, agree to sell their lands to private citizens and to give
possession of them at the expiration of a term of years named, a
taxation of the lands before the efflux of the term is premature,
even though a sale for the nonpayment of the taxes might not take
place until after the time when, if they fulfilled their
agreements, the Indians would have left the land; and even though
any sale would be subject to the proviso named in the preceding
paragraph.
4. A deed under a sale for taxes, and purporting to convey the
lands to the purchaser, even with the qualification of such a
proviso as that in the third paragraph, would, in law, be a
disturbance of the Indian tribe.
In 1786, and before the adoption, therefore, of the federal
Page 72 U. S. 762
Constitution, the State of Massachusetts, which laid claim to
four tracts of land in Western New York then occupied by native
Indians (Senecas, chiefly), and known respectively as the
Alleghany, Cattaraugus, Buffalo Creek, and Tonawanda reservations,
entered, at the conclusion of some disputes, into an agreement with
the State of New York by which New York ceded to Massachusetts, and
her grantees, in fee, the right of preemption from those Indians
and all estate in the reservations, except jurisdiction and
sovereignty, which it was agreed should belong to the State of New
York. By the fourth article of this compact, New York stipulated
thus:
"The said Indian reservations, so long as they shall
remain
the property of Massachusetts, shall be exempt from
all
taxes whatever, and no
general or
state tax
shall be charged on the lands of the said reservations thereafter
to be granted by Massachusetts or on the occupants or proprietors
of such lands until fifteen years after the confirmation of such
grants in the manner mentioned in the compact; but the said lands,
and the occupants thereof, during the said period shall be subject
to
town and county charges or taxes only."
Before the adoption of the Constitution, the then United States,
and after its adoption the federal government, made several
treaties with these Indians; [
Footnote 1] the Treaty of Canandaigua, November 11, 1794,
being one, [
Footnote 2] by
which the land in those reservations were acknowledged to belong to
them, the said Indians, and by which it was agreed that the United
States would "never claim" the same, nor disturb the Indians, and
that the land should
"remain theirs until they chose to sell
the same to people of the United States."
In 1791, Massachusetts parted with her rights in these
reservations, and the same had in 1838 become vested in Ogden &
Fellows. In that year, 1838, a treaty was made between
Page 72 U. S. 763
the United States and the Indians, providing for the removal of
the latter to the west of the Mississippi River; and at the same
treaty a deed of conveyance was executed between the Seneca nation
and Ogden & Fellows in fee, as joint tenants of the four
reservations. The treaty provided for the removal of the Indians
within five years. It was to become obligatory on the parties only
after being proclaimed by the President. And as this proclamation
was not made till April 4, 1840, no right (as the treaty was
construed by the officers of the federal government, a construction
in which Ogden & Fellows acquiesced) accrued to Ogden &
Fellows till April 4, 1845.
Before the expiration of these five years, differences arose
between the Indians and Ogden & Fellows, and in order to settle
them, a new treaty was made in 1842 between the United States and
the Indians, and a deed was executed between Ogden & Fellows
and the Indians, by which it was agreed that the Indians should
remain in possession of two of the reservations, to-wit, the
Alleghany and Cattaraugus, with the same right and title in all
things that they had possessed before the sale. The two others (the
Buffalo Creek and Tonawanda) being, by the deed, ceded to Ogden
& Fellows.
The Indians remained in possession accordingly of the two
retained reservations.
In 1840, May 9, the Legislature of New York passed an act, by
which it authorized a highway tax to be assessed upon the Alleghany
and Cattaraugus reservations (the two still in possession of and
subsequently agreed to be retained by the Indians), and the tax was
assessed.
In the following year, May 4, 1841, the same legislature
authorized the assessment of other taxes for making roads upon
those same two reservations, and on one of the others also, the
Buffalo Creek.
That act of 1841 contained eight sections.
The first authorized the board of supervisors of Erie County to
appoint commissioners to lay out, open, and construct roads across
the Cattaraugus reservation lying within the county, and the same
in respect to the supervisors of the
Page 72 U. S. 764
county of Cattaraugus, over the Alleghany reservation in that
county.
The second provided for the survey of these roads by the
commissioners, and conferred upon the supervisors the power to
direct the repair and improvement of them.
The third provided for raising money to defray the expenses of
constructing and repairing the roads, and for the building of
bridges, and repairing the same, by levying for the years 1841,
1842, and 1843, on the lands in the Cattaraugus reservation, lying
in the County of Erie, the sum of $4,000, and on the Alleghany
$4,000, and on the Cattaraugus, lying within the County of
Cattaraugus, $1,000 each year.
The fourth provided for the survey and maps of the reservations,
with a view to the taxation, with a view to the taxation.
The fifth section provided for the sale of the lands in case of
default in the payment of the taxes. It contained, however, this
proviso:
"
PROVIDED, That no sale for the purpose of collecting said
taxes shall in any manner affect the right of the Indians to occupy
said lands."
The eighth or last section was thus:
"The taxes hereby authorized may be imposed, assessed, levied,
and collected as directed by this act,
notwithstanding the
occupation of the said lands, or parts or portions thereof, by the
Indians, or by any other person or persons; and
the
failure to extinguish the right of the Indians, or to remove them
from the possession thereof, shall not impair the validity of said
taxes, or prevent the collection thereof."
The act of 1840 did not contain the proviso above given to the
fifth section of this act of 1841.
Under these acts, the county supervisors assessed taxes to the
amount of $16,000 or more. One of the tracts afterwards retained by
the Indians (the Cattaraugus), and one of those agreed at the
expiration of the five years to be ceded to Ogden & Fellows,
were, in addition to the beforesaid special tax, assessed; also, in
1840, 1841, 1842, and 1843, with ordinary town and county taxes.
The taxes of no kind being paid, the lands were sold.
Page 72 U. S. 765
A case being agreed on, Fellows and others (Ogden being dead)
brought suit in the supreme court of New York against the
controller of the state and the purchaser at the tax sales praying
that the assessments might be declared void. That court gave
judgment for the defendants; a judgment which the court of appeals
of the state affirmed. This judgment was now here for review, the
question being whether the State of New York had power to tax the
Indian reservations in that state, especially the Cattaraugus and
Alleghany.
Page 72 U. S. 766
MR. JUSTICE NELSON delivered the opinion of the Court.
The principal authority to tax is derived from two acts of the
legislature, passed May 9, 1840, and May 4, 1841. As the act of
1840 was held by the court below void as respects these
reservations, we will, for the present, dismiss it.
The act of 1841 contains eight sections.
[His honor here stated the first five sections of the act in the
words already given on pages <|72 U.S. 763|>763-764.]
The eighth section provides that the taxes may be assessed,
levied, and collected as directed by the act, notwithstanding the
occupation of the lands by the Indians. The failure to extinguish
the right of the Indians or to remove them from the possession
shall not impair the validity of said taxes or prevent the
collection.
This last section furnishes doubtless a solution of what we must
otherwise regard as a very free, if not extraordinary, exercise of
power over these reservations and the rights of the Indians, so
long possessed and so frequently guaranteed by treaties. These
treaties are historical and need not be referred to, beginning in
1784 and coming down to 1842. That of 1794, entered into at
Canandaigua, New York, may be cited as a specimen. Third
article,
"The United States acknowledge all the land within the
aforementioned boundaries (which include the reservations in
question) to be the property of the Seneca nation, and the United
States will never claim the same nor disturb the Seneca nation, . .
.
Page 72 U. S. 767
in the free use and enjoyment thereof, but it shall remain
theirs until they choose to sell the same to the people of the
United States, who have the right to purchase."
We will now refer to the explanation of this law, which, it is
admitted, is the first (except that of 1840) ever passed by the
Legislature of New York to tax these Indian reservations.
By the treaty of 1938 the Seneca nation on these reservations
agreed to remove to the west of the Mississippi River, and, at the
same time, with the consent of the United States, sold their lands
to Ogden & Fellows, who held the preemptive right, derived from
Massachusetts, and executed a conveyance of the same. The treaty
provided for the removal within five years. It was proclaimed April
4, 1840. Before the expiration of the five years, difficulties
arose between the grantees and the Indians, which resulted in a new
treaty, 20 May, 1842, between the United States and the Seneca
nation, when it was agreed that the deed embracing these two
reservations should be cancelled, and the Indians remain as before
with all their original rights. The words are:
"The said nation shall continue in the occupation and enjoyment
of the whole of the said two several tracts of land, called the
Cattaraugus reservation and the Alleghany reservation, with the
same right and title in all things as they had and possessed
therein immediately before the sale of said reservation."
Now it will be seen that this act of New York, which was passed
in 1841, was passed at a time when the grantees, under the treaty
of 1838, had taken the title in fee, but before the expiration of
the five years. And it was doubtless assumed, which we think a
mistake, that the whole title being in the grantees, the state,
notwithstanding the possession of the Indians, might enter upon the
reservations in the exercise of its internal police powers, and
deal with them as with any other portion of its territory. Hence
the eighth section directing that taxes may be imposed, assessed,
or levied and collected, notwithstanding the occupation of the
Indians, or the failure to extinguish their right, or to remove
them
Page 72 U. S. 768
from the possession, and declaring that the neglect should not
impair the validity of the taxes or prevent the collection.
This explanation is due to the character of the state, and
removes the inference that might otherwise be drawn, that the
legislature were encouraging, if not authorizing, a direct
interference by the owners of the right of preemption with these
ancient possessions and occupations, secured by the most sacred of
obligations of the federal government.
It is provided, however, that the execution of these laws shall
not disturb or affect the right of the Indians in their occupation
of the reservations, and a clause in the fifth section is referred
to as conclusive of this position. "But no sale for the purpose of
collecting said taxes shall in any manner affect the right of the
Indians to occupy said lands." It is true that this clause
undertakes to save this right, which the act of 1840 did not; but
the rights of the Indians do not depend on this or any other
statutes of the state, but upon treaties, which are the supreme law
of the land; it is to these treaties we must look to ascertain the
nature of these rights, and the extent of them.
It has already been shown that the United States have
acknowledged the reservations to be the property of the Seneca
nation -- that they will never claim them nor disturb this nation
in their free use and enjoyment, and that they shall remain theirs
until they choose to sell them. These are the guarantees given by
the United States, and which her faith is pledged to uphold. Now we
have seen that this law, taxing the lands in the reservations,
authorizes the county authorities to enter upon them, survey and
lay out roads, construct and repair them, construct and repair
bridges, assess and collect taxes to meet the expenses, and survey
the lands for the purpose of making the assessments, and in
pursuance of these powers the proper officers of the counties have
assessed upon them large sums for the years 1840, 1841, 1842, and
1843.
The answer to all this interference with the possession, and
occupation, and exercise of authority is, that the sale
Page 72 U. S. 769
of the lands in default of payment of the taxes shall not
"affect the right of occupancy of the Indians." We are of opinion
that this is not a satisfactory answer.
We have looked through all the treaties from 1784 down to the
present time, and find but one of them in which any right is
stipulated to enter upon the lands reserved to construct roads.
That is the treaty of 1794, in which the Seneca nation cede to the
United States the right to make a wagon road from Fort Schlosser to
Lake Erie, as far south as Buffalo Creek.
A clause in the adjustment of the dispute between New York and
Massachusetts, in respect to these and other lands, has been
referred to, which provides that no general or state tax shall be
charged or collected from the lands thereafter to be granted by
Massachusetts, or on occupants or proprietors of such lands until
fifteen years have elapsed after confirmation &c., "but that
the lands so granted, and the occupants thereof, shall, during the
said period, be subject to town and county charges, or taxes only."
We suppose this provision had no relation to the Indian occupation,
or Indian occupants, for the two states possessed no power to deal
with Indian rights or title. They were dealing exclusively with the
preemption right after the Indian title was extinguished, and with
the government and jurisdiction over the territory. The clause
doubtless related to the condition of these lands in case the
Indian title should be extinguished as to the whole or any part of
them within the fifteen years' exemption. At all events, whatever
may be the true construction, it can in no way affect the Indian
occupants. The commissioners had no power over them.
The question of the taxation of Indian lands, while in their
tribal organization, by the state authorities, has been before us
this term in several cases from the state of Kansas, and after a
very full consideration of the subject the power was denied.
[
Footnote 3] We refer to the
opinions in these cases as
Page 72 U. S. 770
rendering any further examination of the subject
unnecessary.
The tax imposed on the Buffalo reservation in 1840, 1841, 1842,
and 1843, is not distinguishable from that imposed on the Alleghany
and Cattaraugus reservations. The Indians were still in their
ancient possessions and occupancy, and till removed by the United
States were entitled to the undisturbed enjoyment of them.
On looking into the record it appears that these reservations,
besides the special taxation referred to, have been taxed for the
years 1840, 1841, 1842, and 1843, for the ordinary town and county
charges in each year.
If I understand the opinion of the learned judge of the court of
appeals, these taxes, as it respects the Buffalo reservation, are
sustained on the ground that the Indians had parted with their
title to Ogden & Fellows by the treaties and conveyances of
1838 and 1842, and that the whole title was in the grantees, though
the period for the removal of the Indians had not expired, but
would before the sales could take place for default in payment or
the purchaser be entitled to the possession.
We have already given the answer which we think satisfactory to
this ground in support of the judgment below. Until the Indians
have sold their lands, and removed from them in pursuance of the
treaty stipulations, they are to be regarded as still in their
ancient possession, and are in under their original rights, and
entitled to the undisturbed enjoyment of them. This was the effect
of the decision in the case of
Fellows v. Blacksmith.
[
Footnote 4] The time for the
surrender of the possession, according to their consent given in
the treaty, had not expired when these taxes were levied. The
period within which the removal was to take place, under the treaty
of 1838, was five years from the time it went into effect. It was
not proclaimed till 1840, and under that of 1842 the time did not
expire till 1846. The taxation of the lands was premature and
illegal.
Page 72 U. S. 771
It will be seen on looking into the general laws of the state
imposing taxes for town and county charges, as well as into the
special acts of 1840 and 1841, that the taxes are imposed upon the
lands in these reservations, and it is the lands which are sold in
default of payment. They are dealt with by the town and county
authorities in the same way in making this assessment, and in
levying the same, as other real property in these subdivisions of
the state. We must say, regarding these reservations as wholly
exempt from state taxation, and which, as we understand the opinion
of the learned judge below, is not denied, the exercise of this
authority over them is an unwarrantable interference, inconsistent
with the original title of the Indians, and offensive to their
tribal relations.
The tax titles purporting to convey these lands to the
purchaser, even with the qualification suggested that the right of
occupation is not to be affected, may well embarrass the occupants
and be used by unworthy persons to the disturbance of the tribe.
All agree that the Indian right of occupancy creates an
indefeasible title to the reservations that may extend from
generation to generation, and will cease only by the dissolution of
the tribe, or their consent to sell to the party possessed of the
right of preemption. He is the only party that is authorized to
deal with the tribe in respect to their property, and this with the
consent of the government. Any other party is an intruder, and may
be proceeded against under the twelfth section of the act of 30th
June, 1834. [
Footnote 5]
We are gratified to find that in 1857 the Legislature of New
York passed a law declaring, in substance, that no tax shall
thereafter be assessed on either of the two reservations (Alleghany
and Cattaraugus), or on any part of them, so long as they remain
the property of the Seneca nation, and that all acts of the state
conflicting with the provisions of this section are hereby
repealed. [
Footnote 6]
Our conclusion is that the whole of the taxes assessed upon
Page 72 U. S. 772
the three reservations (Buffalo Creek, Alleghany, and
Cattaraugus), are illegal and void as in conflict with the tribal
rights of the Seneca nation as guaranteed to it by treaties with
the United States.
The judgment must therefore be reversed and the cause
remanded with directions to enter a judgment in conformity with
this opinion.
[
Footnote 1]
Treaty of Fort Stanwix, Oct. 22, 1784, 7 Stat. at Large 15;
Treaty of Fort Harmar, Jan'y 9, 1788,
ibid., 33; Treaty of
Genesee, Sept. 15, 1797,
ibid., 601; Treaty of Buffalo
Creek, June 30, 1802,
ibid., 70; Treaty of January 15,
1848,
ibid. 530; Treaty of May 20, 1842,
ibid.,
586.
[
Footnote 2]
7 Stat. at Large 41.
[
Footnote 3]
The Kansas Indians; supra, p. <|72 U.S. 737|>737;
the last preceding case.
[
Footnote 4]
60 U. S. 19 How.
366.
[
Footnote 5]
4 Stat. at Large 730.
[
Footnote 6]
1 R.S.P. 907, ยง 10.
