The United States made two treaties, one in 1838 and one in
1842, with the Seneca Indians. residing in the State of New York,
by which the Indians agreed to remove to the West within five years
and relinquish their possessions to certain assignees of the State
of Massachusetts and the United States agreed that they would
appropriate a large sum of money to aid in the removal, and to
support the Indians for the first year after their removal to their
new residence.
But neither treaty made any provision as to the mode or manner
in which the removal of the Indians or surrender of the
reservations was to take place.
The grantees of the land under the Massachusetts assignment
cannot enter upon it and take forcible possession of a farm
occupied by an Indian, but are liable to an action of trespass
quare clausum fregit if they do so.
The removal of tribes of Indians is to be made by the authority
and under the care of the government, and a forcible removal, if
made at all, must be made under the direction of the United
States.
The courts cannot go behind a treaty, when ratified, to inquire
whether or not the tribe was properly represented by its head
men.
The facts of the case are stated in the opinion of the
Court.
MR. JUSTICE NELSON delivered the opinion of the Court.
This is a writ of error to the supreme court of the State of New
York. The case was decided by the court of Appeals of that state,
but the record had been remitted, after the decision,
Page 60 U. S. 367
to the supreme court, from which the appeal had been taken.
The suit in the supreme court was an action of trespass
quare clausum fregit, brought by the intestate, John
Blacksmith, against the defendants, Joseph Fellows and Robert
Kendle, for entering, with force and arms, into the close of the
plaintiff, commonly known as an Indian saw mill and yard, at the
Town of Pembroke, County of Genesee, and then and there having
expelled and dispossessed the said plaintiff.
The defendants plead 1st not guilty, and 2d that the said close
&c. was the soil and freehold of the defendant Fellows, and
that the defendant, Fellows, in his own right, and the defendant
Kendle, as his servant, and by his command, broke and entered the
said close &c., as they lawfully might, for the cause
aforesaid. To this plea there was a replication, averring that the
close, soil, and freehold was not the close of the defendant
Fellows.
On the trial, it was proved by the plaintiff that the close
mentioned in the declaration is situate in the Town of Pembroke,
County of Genesee, upon a tract of land of twelve thousand eight
hundred acres, commonly known as the Tonawanda reservation, and
was, at the time of the entry complained of, an Indian improvement
upon the same; that said improvement was made about twenty years
before the treaty, by the plaintiff and seven other Tonawanda
Indians; that the plaintiff is a native Indian, belonging to the
Tonawanda band of the Seneca Indians, who reside on that
reservation, and are a part of the Seneca Nation, and has so been
known for at least thirty-six years; that he has resided on this
reservation from his birth, and was in the actual possession of the
said improvement at the time of the entry complained of; that on
the 13th July, 1846, the defendants entered into and took
possession of the said close, and turned the plaintiff out, and in
doing so committed the trespass. It was admitted, that a treaty had
been made between the United States and the Six Nations of Indians
on the 11th November, 1794, by which certain lands in western New
York, including this Tonawanda reservation, are declared
"to be the property of the Seneca Nation, and the United States
will never claim the same nor disturb the Seneca Nation, nor any of
the Six Nations, or their Indian friends residing thereon, and
united with them 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."
The plaintiff then rested.
The defendants gave in evidence certain documents and acts
Page 60 U. S. 368
of the legislatures of the States of New York and Massachusetts,
showing that a dispute had arisen, at an early day, between the two
states, in respect to the title to a large tract of land within the
limits of New York, of which the
locus in quo is a part.
That in 1786, the dispute was amicably settled by a cession from
Massachusetts to New York of the sovereignty and jurisdiction over
the tract, and by a cession from New York to Massachusetts of the
right of preemption to the soil from the Indians.
The lands were then in the independent occupancy of the Seneca
Nation, and owned by them, and that Massachusetts acquired by the
cession the exclusive right of purchasing their title whenever they
became disposed to sell; that this right had become duly vested in
Thomas L. Ogden and Joseph Fellows, by proper conveyances from
Massachusetts, which survived to the latter on the death of
Ogden.
A treaty was then given in evidence, between the United States
and the New York Indians, bearing date 15 January, 1838, and
another between the United States and the Seneca Nation, bearing
date the 20th May, 1842, under which the defendant claims that he
had acquired the Indian title to the close in question, and by
virtue of which it is admitted the defense to the action in this
case rests.
The Treaty of 1838, 7 Stat. 551, set apart a tract of country,
situated west of the State of Missouri, as a permanent home for all
the New York Indians, containing one million eight hundred and
twenty-four acres of land, being, as is expressed in the treaty,
"three hundred and twenty acres for each soul of said Indians, as
their numbers are at present computed." The tract is particularly
described and located. It was intended for the future home of nine
tribes of Indians, containing, according to the official estimate,
a population of five thousand four hundred and eighty-five. The
Seneca tribe, including among them their friends, the Onondagas and
Cayugas, numbers a population of two thousand six hundred and
thirty-three.
By the tenth section of this treaty, special provision was made
concerning this tribe and their friends already mentioned. They
were to have assigned to them the easterly part of the tract set
apart to the New York Indians, and to extend so far as to include
one half section of land for each soul. The tribe agrees to remove
from New York to their new home within five years, and continue to
reside there. The section then recites the purchase of the title of
the Seneca Nation to certain lands described in a deed of
conveyance by Ogden and Fellows, assignees of the State of
Massachusetts, for the consideration
Page 60 U. S. 369
of $202,000, and also that the Nation has agreed that said money
shall be paid to the United States, and that out of this sum
$102,000 shall be paid to the owners of the improvements on the
land so conveyed, the residue to be invested in stocks by the
government, the income of which is to be paid annually to the
Nation at their new homes. The improvements were to be appraised,
and a distribution of the $102,000 made among the owners, and
"to be paid by the United States to the individuals who were
entitled to the same &c., on their relinquishing their
respective possessions to Ogden and Fellows."
By the fifteenth section of the treaty, the United States agree
that they will appropriate the sum of $400,000, to be applied from
time to time, under the direction of the President of the United
States, in such proportions as may be most for the interest of the
Indians who were parties to the treaty,
"to aid them in the removal to their homes, and in supporting
them the first year after their removal; to encourage and assist
them in education, and in being taught to cultivate their lands; in
the erection of mills, houses,"
&c.
A large tract of land in Wisconsin that had been set apart to
certain Indians was relinquished to the government.
The deed of conveyance from the Seneca Nation to Ogden and
Fellows, and referred to in the treaty, is annexed thereto. It
conveys four reservations in western New York: the Buffalo Creek
reservation, containing 49,920 acres; the Cattaraugus, 21,680
acres; the Allegany, 30,469 acres; and the Tonawanda, 12,800
acres.
Some difficulty occurred in carrying this treaty into execution,
which it is not important to refer to. These difficulties raised by
the Indians resulted in a modification of it by a second treaty
entered into on 20 May, 1842, which, after referring to the first,
and to the deed of conveyance to Ogden and Fellows, and to the
differences that had arisen between the parties, provides in the
first article that Ogden and Fellows, in consideration of the
release and agreements afterwards mentioned, stipulate that the
Seneca Nation might continue in the occupation and enjoyment of two
of the reservations, the Cattaraugus and the Allegany, the same as
before the deed of conveyance. And in the second article, the
Seneca Nation, in consideration of the foregoing and other
stipulations, agree to release and confirm to Ogden and Fellows the
two remaining reservations, the Buffalo Creek and the
Tonawanda.
The third article provides for reducing the amount of the
purchase money to be paid by Ogden and Fellows, so as to correspond
with the relative value of the two reservations released to the
value of the four, as fixed in the treaty of 1838.
Page 60 U. S. 370
The fourth article provides for the appraisal of the land and
improvements in these two reservations, by appraisers -- one to be
appointed by the Secretary of War, and the other by Ogden and
Fellows -- and to report their proceedings to the secretary, and
also to Ogden and Fellows.
The fifth article provides that the possession of the two tracts
confirmed to Ogden and Fellows should be surrendered up as follows:
the unimproved lands on the tracts within one month after the
reports of the appraisers, and the improvements within two years,
provided that the amount to be ascertained and awarded as the
proportionate value of said improvements shall, on the surrender
thereof, be paid to the President of the United States, to be
distributed among the owners according to the determination of the
appraisers, and provided also the consideration for the release and
conveyance of the lands shall, at the time of the surrender
thereof, be paid or secured to the satisfaction of the Secretary of
War, the income of which to be paid to the Seneca Indians
annually.
The seventh article provides that the modification in this
treaty of 1842 shall be a substitute for that of 1838, wherein it
differs from it, and to this extent shall be deemed to repeal
it.
It will be seen that the principal change under the second
treaty consists in the release, by Ogden and Fellows, to the
Indians, of two of the four reservations conveyed to them under the
treaty of 1838, and the corresponding reduction of the price to be
paid. Most of the other provisions of the treaty are untouched, and
remained in force. The assignment by the government of the large
tract of country for the New York Indians west of the Missouri --
the special tract therein assigned to this Seneca Nation -- their
agreement to remove to their new homes, and the large appropriation
to aid in their removal and in their support and encouragement
after they had arrived -- all these provisions remained unaffected
by the second treaty.
Neither treaty made any provision as to the mode or manner in
which the removal of the Indians or surrender of the reservations
was to take place. The grantees have assumed that they were
authorized to take forcible possession of the two reservations, or
of the four, as the case would have been under the first treaty.
The plaintiff in this case was expelled by force, and unless this
mode of removal can be sustained, the recovery against the
defendants for the trespass was right, and must be affirmed.
The removal of tribes and nations of Indians from their ancient
possessions to their new homes in the West, under
Page 60 U. S. 371
treaties made with them by the United States, have been,
according to the usage and practice of the government, by its
authority and under its care and superintendence. And indeed it is
difficult to see how any other mode of a forcible removal can be
consistent with the peace of the country, or with the duty of the
government to these dependent people, who have been influenced by
its counsel and authority to change their habitations.
The negotiations with them as a
quasi-nation,
possessing some of the attributes of an independent people, and to
be dealt with accordingly, would seem to lead to the conclusion,
unless otherwise expressly stipulated, that the treaty was to be
carried into execution by the authority or power of the government,
which was a party to it; and more especially, when made with a
tribe of Indians who are in a state of pupilage, and hold the
relation to the government as a ward to his guardian. It is
difficult to believe that it could have been intended by the
government that these people were to be left, after they had parted
with their title to their homes, to be expelled by the irregular
force and violence of the individuals who had acquired it, or
through the intervention of the courts of justice. As we have seen,
the Seneca Nation upon the four reservations consisted of a
population of some two thousand six hundred and thirty-three souls;
and if we include the Tuscaroras, whose lands were also purchased
under the same treaty, nearly three thousand. It is obvious that
any such litigation would be appalling.
If we look into the provisions of the two treaties, we think the
conclusion as clear from a consideration of them that no such means
or manner of removal were contemplated, as that derived from a
consideration of their unfitness and impropriety under the
circumstances stated.
The treaty of 1838 contemplated a removal to the tract west of
the State of Missouri, and putting the Indians in possession of it.
A large fund was appropriated, and in the hands of the government,
to be disbursed in aid of such removal, and of their support and
encouragement after their arrival. It did not, therefore, separate
these Indians from the care and protection of the government on its
ratification, but contemplated further duties towards them, and for
which means were supplied. Besides, the purchase money for the
reservations was to be paid to the government, and by the express
terms of the treaty of 1842, the appraised value of the
improvements was, on the
surrender of the possessions, to be
paid to the President of the United States, to be distributed among
the owners of the improvements according to the award of the
appraisers. This provision shows
Page 60 U. S. 372
that the government was to be present at the surrender and
payment for the improvements.
The clause in the treaty of 1838 is still more specific, which
was that the improvements were "to be paid by the United States to
the individuals who were entitled to the same" &c., "on their
relinquishing their respective possessions to the said Ogden and
Fellows." It is also worthy of remark that the St. Regis Indians,
one of the nine tribes of the New York Indians, in giving their
assent to the treaty of 1838, deemed it necessary to guard against
a forcible removal to the West, by a clause providing that they
"shall not be compelled to remove under the treaty," a removal to
the West being in contemplation.
We think, therefore, that the grantees derived no power under
the treaty to dispossess by force these Indians, or right of entry,
so as to sustain an ejectment in a court of law; that no private
remedy of this nature was contemplated by the treaty, and that a
forcible removal must be made, if made at all, under the direction
of the United States; that this interpretation is in accordance
with the usages and practice of the government in providing for the
removal of Indian tribes from their ancient possessions, with the
fitness and propriety of the thing itself, and with the fair import
of the language of the several articles bearing upon the
subject.
An objection was taken on the argument to the validity of the
treaty on the ground that the Tonawanda band of the Seneca Indians
were not represented by the chiefs and head men of the band in the
negotiations and execution of it. But the answer to this is that
the treaty, after executed and ratified by the proper authorities
of the government, becomes the supreme law of the land, and the
courts can no more go behind it for the purpose of annulling its
effect and operation than they can behind an act of Congress.
5 U. S. 1 Cranch
103;
31 U. S. 6 Pet.
735;
51 U. S. 10 How.
442;
27 U. S. 2 Pet.
307,
27 U. S. 309,
27 U. S. 314; 3
Story Const.Law 695
The view we have taken of the case makes it unnecessary to
examine the ground upon which the learned court below placed their
decision; that court held the appraisal of the improvements, and
payment therefor, were conditions precedent to the surrender of
them by the Indians, and that the refusal of the Tonawanda band to
permit the appraisal did not excuse the performance of these
conditions. The ground upon which we have placed our judgment is
not in conflict with this view. We hold that the performance was
not a duty that belonged to the grantees, but for the government
under the treaty.
Page 60 U. S. 373
We think the judgment of the court below right, and should
be affirmed.