Strong v. Waterman

The Chancellor. The rights of the indians in this state to the use, possession, and occupancy of the lands of their respective reservations, which have not been by them voluntarily ceded to the people of the state, or granted to individuals with the assent of the state, do not, at this time, admit of doubt. The ultimate fee of the land is undoubtedly in the state, or its grantees ; but the right of the indians to the beneficial use and occupancy thereof, until they think proper voluntarily to relinquish and abandon that right, has been too long recognized in this state to be now called in question. No provision, however, has been made by law for the bringing an ejectment to recover the possession of indian lands in the Cattaraugus reservation. For the right to the possession is in several thousand individuals, in their collective capacity; which individuals, as a body, have no corporate name by which they can institute an ejectment suit. It is true, the act of the 31st of March, 1821, respecting intrusions upon indian lands, provides a mode in which settlers upon indian lands may be removed, by a summary application of the district attorney to a county judge. And the 1st, 2d and 5th sections of that act appear to be in force; as they were neither repealed, nor embraced in any of the provisions of the revised [611] statutes. If the word settler is sufficient to reach this case, where the defendant does not reside upon the reservation, but upon lands adjacent, and cultivates certain portions of the indian lands by intrusion, the complainants appear to have an ample remedy to recover the possession of the land, by the removal of the defendant therefrom. The bill, however, shows that the defendant interferes with the rights of the indians who attempt to occupy the lands claimed by him; which appears to be sufficient to entitle them to an injunction to protect them in the possession and enjoyment of their lands. And so far as the restraining of the cutting of timber, saw logs, and fuel is concerned, the laws have made no provision for the protection of the rights of the indians. The act of April, 1813, to prevent trespasses on indian lands, provided a sufficient penalty to protect the rights of the indians, and directed the penalty, when recovered, to be paid to them. (1 R. L. of 1813, p. 554.) The 5th section of the act of the 31st of March, 1821, before referred to, (Laws of 1821, p. 184,) directed one-half of the penalty to be paid to the county treasurer, and the other half to the indians. But in the revised statutes, although the penalty is retained, it affords no protection whatever for the injury which the indians sustain by the cutting of timber from their lands; as the statute directs the whole of the penalty, after payment of the costs and expenses of the prosecution, to be paid into the treasury of the county. (1 R. S. 209, §§ 87, 88.) And I have not been able to find any provision which authorizes the bringing of a suit, in a common law court, for the actual damages which the indians may sustain by trespasses upon their lands, or for the use of lands intruded upon; though it is possible there may be some statutory provision on the.subject which the counsel, as well as the court, have overlooked. The right of the indians to the undisturbed possession and enjoyment of their lands being established, by the humane principles and policy of the state, if the common law furnishes no sufficient remedy for the protection of those rights, it is a part of the acknowledged jurisdiction of this court to interpose for their relief. And I think, upon the case made by the complain [612] ants’ bill, that this court is bound to decree an account for the injury which the indians have sustained by the trespasses upon their lands which have already taken place; and also to protect them, by injunction, against the further threatened injuries from the defendant and those in his employ. The laws of this state do not recognize the different tribes of, indians, within our bounds, as independent nations, but as citizens merely; owing allegiance to the state government; subject to its laws, and entitled to its protection as such citizens. (Jackson v. Goodell, 20 John. Rep. 188.) The indians cannot therefore institute a suit in the name of the tribe; but they must sue in the same manner as other citizens would be required or authorized to sue, for the protection of similar rights. And as the individuals composing the Seneca nation of Indians, and residing on, and entitled to, their several reservations, are too numerous to join in this suit byname, the bill is properly filed by these complainants in behalf of themselves and the residue of the nation residing upon their reservations. The bill also shows that the two persons named as complainants have been duly authorized by the council of chiefs; who have the right to direct in all matters relating to the general interests and business of the nation. The parties are therefore properly before the court, and the complainants are entitled to retain this preliminary injunction. Application denied, with costs.