Jackson ex dem. Gilbert v. Wood

- Kent, Ch. J. delivered the opinion of the court. It is stated in the case, that the heirs of the indian patentee, under whom the lessor of the plaintiff claims, by a deed of the 2d of April, 1808, are Oneida Indians, and resi [295] ding with the Oneida tribe. The plaintiff shows the deed without proving the consideration, or showing any particular legislative sanction for the conveyance, and the question is, whether the deed be valid in law. It is a fact too notorious to admit of discussion or to require proof, that the Oneida Indians still reside within this state, as a distinct and independent tribe, and upon lands which they have never alienated, but hold and enjoy as the original proprietors of the soil. Their political relation to this state is peculiar, and sui generis. If they are not aliens in every sense, because of their dependence as a tribe, and their right to protection, they cannot be considered as subjects born under allegiance, and bound, in the common law sense of the term, to all its duties. But this is a question which I do not wish or mean to discuss, and I have only alluded to the condition of the Oneidas, to show that they come within the general provision in our constitution and laws, relative to purchases of land from the indians within this state. The 37th article of the constitution declares that no purchase, or contract for the sale of lands which may be made with or by the indians within this state shall be valid, unless made under the authority and with the consent of the legislature. This provision has been generally supposed, and perhaps correctly, to refer to purchases from the indians, as a tribe or community; for indians generally hold their lands in common, and do not know of individual property in land. But the legislature, in their earliést provision on the subject of these indian purchases, carry their prohibition to all purchases from individual indians, as well as from the tribe; for the act of the 11th sess. c. 85. declares it to be a public offence to purchase, or contract for the sale of lands within this state, with any indian or indians residing within the limits of this state. The same prohibition, in the same words, was included [296] in the revised laws of 1801; (Laws, vol. 1. p. 464.) and. the act of 1801 goes further, and declares, (sect. 2.) that no person shall maintain an action, on any contract,, against any Stockbridge or Brothertown Indian, or against any indian, residing on any lands reserved to the Oneida, Onondaga or Cayuga Indians. If no suit will lie against the indian himself on such contract, it is her cause the law will not recognise it as .valid, unless made under the sanction which has since been provided. It is difficult to reconcile this provision in the act, with the validity ofx the deed before us. The various regulations in the act of 1801, all show the sense of the legislature, that an indian, in his individual capacity, is, in a great degree, inops consilii, and unfit to make contracts, unless with the consent and under the protection of a civil magistrate. The law not only protects Indians from any ,suit upon their contracts, but it declares specially, that all alienations of land by the Brothertown and. NewStockbridge Indians are void. ■ These are just and humane guards against the imposition and frauds which that unfortunate people have not the power to withstand.. The same provisions prevail in the Spanish colonies. None of the Indians within the Spanish dominions can dispose of their real property, without the intervention of a magistrate. But the act of the 32dsess. c. 63. relates to the very subject before us. It provides that the heirs of Indians, to whom lands have been granted by this state, for military services, shall be, and are made capable of taking and' holding any such lands by descent, in the same manner as if such heirs were citizens of this state, at the death of their ancestors; and that-every conveyance, thereafter to be executed by such patentee, or his heirs, to any citizen of this state, for any such land, shall be valid, if executed with the approbation of the surveyor-general. The act of the next, or. 33d sess. c. 25. contains directions for the surveyor-general, calculated to secure, the more effectually, jus [297] tice to the patentee and his heirs; and there is a proviso in each of these acts, that nothing in them shall be construed to confirm or affect any prior conveyance from such patentee or his heirs. Such conveyances remain as if those acts had not been passed; and from the construction which I give to the prior acts of the 11th session, and of 1801, such contracts and conveyances, if executed by indians residing with their tribe, were absolutely void. The case is within the letter, and certainly within the spirit, of the several statutes on this subject. These statutes ought to be construed liberally for this purpose. The principles of public policy, a sense of justice and humanity, the honour of the state, and the conclusions of law, require us to consider such contracts as made with persons unfit to contract without the advice of disinterested counsel. I allude now only to contracts made with individual Indians, and not to purchases made from the tribe, in their, national or collective capacity. The nation, by its chiefs in council, is to be presumed competent to judge of its rights, and to preserve them; and private purchases from the nation or tribe are declared void upon other grounds. The motion on the part of the plaintiff to set aside the nonsuit, is, therefore, denied. Judgment of nonsuit.